Last night I was part of a panel at Regis College on various matters related to COVID. My task was to talk about some of the ethics issues that the last year has presented. I decided to focus on how rules and exceptions work, and this post is a kind of follow-up and elaboration of one of my points.
I posed this question to the audience.
Imagine you’re a nurse working the COVID vaccine administration desk. A young woman shows up in the vaccine clinic and asks if she can have the shot. She is not eligible according to the current phase of vaccinations, and in fact probably will not be eligible for another 6 weeks. But she begs for the shot, saying that she’s virtually a single mom, with three kids under 8 yrs old at home and a husband who works long and difficult hours. She can’t afford to get sick, and she’s terrified that she might get COVID and be unable to care for her kids, who are themselves exhausted and frazzled from months in semi-quarantine. You can easily tell just by looking at her that she has had a very hard year.
Do you give her the shot?
One nice feature of having to do this over Zoom is that I could get immediate responses via a poll. About 40% of attendees said Yes, and 60% said No. This was almost exactly what I expected, because it’s supposed to be a hard case with no obvious answer. Indeed, I think that if you believe the answer is obvious, you’re probably not thinking about the case very well.
It would be easy to adjust the story to make one answer or the other more likely. For example, suppose it’s the end of the day, and each day for the last few weeks there have been a few open vials of vaccine. You might just suggest that the young mom wait for a while in hopes that there will be some “extra” doses. Or you might know that you have been struggling to get enough patients to get the shot—they just won’t come in—and if you don’t use your supply you’ll lose the next shipment.
In the other direction, perhaps your clinic is subject to detailed audits, and if it’s discovered that you didn’t follow the rules, you’ll be fired. Maybe your boss will be too. Or maybe you’ll have other penalties levied against your clinic. Or perhaps there are dozens of other people in the line all hoping for the same kind of special treatment.
The point is that the myriad facts of the case will probably affect your decision. And you have to make a decision. “I don’t know” isn’t an option, for it implies “No” in this case.
I’m interested in those who are very sure of their answer, given the limited details.
Start with the confident “Yes”. Even given the abbreviated story, I don’t think Yes is obvious. The argument for it is that the mom’s life would genuinely be better with the shot; she needs it possibly more than others who are currently eligible. A 65-year-old who is relatively healthy, lives at home, likes being alone, and can carefully manage their COVID risk might be eligible, but it would be hard to say that they need the vaccine more than the young mom. Basic human sympathy should at least give some weight to the mom’s request, and the rules are too crude to get every case right.
So I think Yes is defensible, but there are at least two good reasons to hesitate anyway. First, it really is against the rules, and the mom doesn’t have an agreed-upon moral excuse to jump the line. Below I’m going to criticize a kind of rule fetishism, but it is possible to err in the other direction and think that the rules should easily fall to immediate, evident neediness. Rules that get too many exceptions, and especially when they get unpredictable exceptions, no longer serve the purpose of allowing us to coordinate our actions. Sometimes rules need to be followed even if it’s inconvenient or somewhat suboptimal, if only to ensure that we all still recognize the value of having rules.
Second, by asking you for an exception—to break the rules—the mom is putting you in a moral dilemma. She may have good reasons to want the vaccine, but just as you have direct moral duties toward her (more below), so she has duties toward you. And one of those duties is to not needlessly place you in a moral dilemma. The precise details of the case will matter a lot on this point, but the general principle holds. It is at least ungenerous and sometimes unfair to behave in a way that forces an authority to have to exercise their control over your situation when you could avoid this by simply doing what you know you should. It is not always OK to even ask for an exception. Doing so may cause moral distress in the person who has to say No.
Now for the confident “No”. There are two main arguments for saying “No.” Let’s take each in turn.
First, it’s unfair. It’s not the mom’s turn, and it would be unfair to everyone else if she could just skip the line. This is true, but it’s just the nature of exceptions. You and the mom might agree that it would be unfair, but in a sense that’s exactly what’s at issue. Not everything will be perfectly fair. The question is what justifies the unfairness. Pointing out that it’s not fair just restates the case. Moreover, obsession with precise fairness is childish and naïve. It is childish to ungraciously demand that every rule be followed perfectly, and every good be distributed equally. Suppose you said Yes and gave the mom the shot. Later she tells some friends that she got her first shot. One of them says, “That’s great! I’m so happy for you.” The other says, “What?! How did you get it when I can’t? That’s not fair!” I take it that the first response is the better one, particularly given the kind of case. (Vaccines aren’t that scarce.)
Second, it’s against the rules. This was, I think, the most common reason that the audience last night said “No.” It’s worth exploring in some extra detail.
In a sense, this response also kind of misses the point of the example. Of course it’s against the rules. But why think that you have to follow the rules exactly in this case? Yet I think that for a lot of people, and especially a lot of people in professional settings, the fact that there is a rule is supposed to conclude the debate and deliberation. There is no moral dilemma anymore, because there is a rule. I barely need to think; I can just apply the rule. It might be uncomfortable to tell the mom she can’t have the shot, but it’s clearly the right thing to do.
I think this attitude is one of the reasons that many laymen dislike interacting with the medical community. They find the rules confusing and complicated, designed more for ease of function in the hospital or clinic, rather than actual moral standards that need to be respected. The rules seem to protect the establishment, rather than the patient. This complaint is unfair in many ways, but I think there is a kernel of truth to it, and more than a kernel when it comes to rules about vaccine distribution and other similar unusual events.
The trouble with woodenly enforcing rules is that it sidesteps moral judgment. In many cases, moral rightness really is encoded in rules, and following the rules yields the right result. Having a rule not only sets a moral standard, it also makes moral deliberation easier and faster. Speed is often valuable in medical settings, so by establishing good rules, decisions can happen faster. Furthermore, clinicians’ moral sensibilities and judgment are shaped by the rules, so even those clinicians who slept through their ethics classes (perhaps with good reason), but have internalized many of the procedural norms of the clinic, will generally do the right thing.
But in novel situations, as with many of our COVID-specific rules, the rules themselves have not had the kind of extensive real-world testing that long-standing norms have. Many of them have been created with partial information (e.g., fomite transmission vs. aerosols) or by analogy with other epidemics. There are still notable gaps in our understanding of the disease. Moreover, the basic social aims that the rules intend to serve are disputed and disputable. There really is a substantive, good-faith debate about who should have priority in the vaccination schedules, as well as about many of the other high-profile rules (e.g., mask wearing situations, outdoor events, etc.).
Sometimes we have to have a rule so that we can generally predict each other’s behavior, even when we aren’t sure what the best rule would be. Good enough is sufficient for the moment. The rule serves a purely pragmatic function. The problem is that rules justified on merely pragmatic grounds can look a lot like rules that are justified on moral grounds, and often the people enforcing the rules don’t distinguish between these two types very well.
When the rule is merely pragmatically justified, it gives little guidance on the moral situation. The moral status of a particular case can’t be determined directly from the rules. For example, there is a rule in American society about which side of the road one should drive on. This is a pragmatically necessary rule, given the nature of driving. But there is no moral fact about which side of the road is better in general. Driving on the right is not morally correct because something about the right side of the road is intrinsically better. People in the UK who drive on the left are not doing something wrong. The right thing to do is to follow the rule, whatever it happens to be. But knowing which side of the road to drive on doesn’t really require driving judgment. It merely involves following the norm that everyone else is following. There is no “deeper” explanation.
Thus, the question for the vaccine case is this: Is the distribution rule a merely pragmatic rule, or does it encode a moral principle? I think it pretty clearly has to be the first one. A rule that is supposed to cover so many possible cases, in such a novel situation, almost certainly cannot perfectly align with the morally right thing to do in every situation. Refusing to admit that there could be special, exceptional cases in which doing the morally right thing requires breaking the general rule just mischaracterizes the rule itself. Now that there is a rule, there is some reason—perhaps a fairly strong one—to follow the rule in most cases. This reason is like the reason you should drive on the right in the US: not because it’s morally right on its own, but because it’s the way to avoid the real moral dangers of uncoordinated traffic.
The moral relationship between you and the vaccine-seeking mom requires you to give her a reason to not give her the shot. “It’s against the rules” is an inadequate reason when the rules are merely pragmatic. It has the same moral value as responding “It’s the law” to the question “Why do you drive on the right instead of the left?” It’s not false, exactly; it’s just not an answer. By shortcutting the moral judgment, the moral justification for saying “No” disappears. But if you exercise your moral judgment, you might decide that the rule is getting this case wrong, and determine that you should give her the shot.
In this kind of situation, where the rule is a mere tool for coordinating, and does not (clearly) encode a moral requirement, it is much easier to justify breaking the rule. Indeed, I think that in this particular case, it is probably easier to justify breaking the vaccine distribution rule than the moral rule about giving an sufficient justification for saying “No.” But the case is still hard, and I think it is still not obvious what one should do.
I that a danger of working in highly rule-governed (i.e. regulated) environments is that they encourage people to forgo their moral and practical judgment in favor of following the rules. Cases that are in fact relatively difficult can seem to have obvious answers because of the shortcuts that the rules provide. This has at least two bad effects. First, it causes their practical reasoning skills to atrophy, which in turn can make them less sensitive to ways in which policies really can be actively bad, and not just suboptimal. Sometimes particular rules are bad, and not merely because they are ineffective. It isn’t good to lose a conceptual vocabulary by which we can critique the rules on non-pragmatic grounds. Second, it can encourage a kind of vicious Pharisaism in which all of the boundaries are policed with equal severity. Rule-followers can think themselves better than others, including those who actually use good moral judgment, merely because they follow the rules well. I have been worried for most of this last year of COVID that people will face recriminations for exercising their best judgment contrary to the established norms, but it is precisely this kind of novel situation that requires people who have good judgment to make good decisions.