I. INTRODUCTION
The variations in non-expert responses to the COVID-19 pandemic are startling examples of the problem between the public’s perception of risk and evidence-based assessment of risk. Members of the public inappropriately assign risk measurements in numerous areas capable of being assessed by scientists. One example is vaccines—individuals are increasingly resisting vaccines and assigning a high-risk to the vaccines while the evidence-based assessment of risk is low. This is problematic. Although usually the short-term consequences of individuals inappropriately assigning risk is tolerable, this is not so with a pandemic; the short-term consequences of individuals inappropriately assigning a high risk to the COVID-19 vaccine is catastrophic.Footnote 1
Individual perceptions of risk are well-studied, although no single theory or doctrine easily explains the complicated decision-making process. This Article draws on four main decision-making theories to model the disconnect between individual misperceptions of risk and evidence-based assessment of risk as it applies to the COVID-19 vaccine. The four theories are: ambiguity, affect, cultural cognition, and heuristics/dual process. These theories explain how people make decisions and perceive risk. Importantly, none of these theories fully explain decision-making processes. Thus, by discussing multiple theories, a clearer picture emerges to help understand why some people—and some political leaders—inappropriately assign risk to COVID-19 and the COVID-19 vaccine, the result of which leads to dire consequences.
This inappropriate assignment of risk that leads some people—including political leaders—to underestimate the risk of COVID-19, is a long-time coming. Decades of anti-science sentiment, distrust of scientists, and a decrease in understanding science has wreaked havoc on the ability of scientists to effectively communicate the risk of COVID-19 and the related safety of the vaccines. Even when the facts are presented, including an evidence-based assessment of risk related to COVID-19 and the COVID-19 vaccine, the public’s ability to align their perceptions of risk with evidence-based assessment of risk has been so undermined that it is extremely difficult to overcome decades of learned behavior leading to the exhibited inappropriate assignment of risk.
This Article tackles the important problem of re-aligning the public’s perception of risk with evidence-based assessment of risk. This is not an easy task. To do this, Part II provides an overview of the timeline of the COVID-19 pandemic. This timeline will catalogue what leaders knew when and what interventions were or were not implemented. This not only sets the stage for the ensuing discussion of vaccine hesitancy, but it also provides a useful tool so that future autopsies of this pandemic can reference a timeline. Part III explains the science of COVID-19 vaccine development. The scientific component is critical to unpacking whether the facts even matter for the public’s assessment/perception of risk. In addition, it provides context for the ability of scientists to assign evidence-based assessment(s) of risk. Part IV provides an overview of four main decision-making theories: ambiguity, affect, cultural cognition and heuristics/dual process theory. These decision-making theories are well-described in legal and social science literature. Importantly, these theories have not answered the question posed in this Article, thus there is value in utilizing them in this particular way. Part V analyzes why the decades long war against science successfully undermined the public’s ability to appropriately assign risk. This part also incorporates the timeline from Part II to demonstrate how the messaging to the public is/was a driver of COVID-19 vaccine hesitancy. This Part includes a discussion of three important variables that contribute to individual misperception of risk: the rise of individualism, the role of misinformation on the internet, and economic incentives to promote misinformation. These variables contribute to an individual’s inability to appropriately assign risk. In Part VI, this Article provides a normative framework for utilizing the decision-making theories and these three variables to propose ways to allow individuals to appropriately assign risk. Many in the public would rather hear that we will get back to business as usual, even as experts share the data that indicates we are nowhere near the end of this pandemic. The normative framework provides an important mechanism to unpack vaccine hesitancy and the larger problem of individual misperception of risk.
Being able to close the divide between individual misperception of risk and evidence-based assessment of risk is a matter of life and death. This is true for other topics as well, such as climate change, smoking, and food systems, but the immediate impact of those problems is not as tangible. COVID-19 and its effects are tangible. While legal regulations consider risk assessment, this Article takes a different tactic that is important for implementation of legal policies; that is, understanding and re-aligning individual’s perceptions of risk so when legal regulations are implemented they are more likely to be accepted by individuals. This pandemic presents an opportunity to re-align the public’s perception of risk with an evidence-assessment of risk—this is important not only for the current pandemic, but for other critical problems, such as addressing climate change.
II. COVID-19 TIMELINE
This Part provides an overview of the COVID-19 pandemic timeline. While COVID-19 is a global pandemic, this Article largely focuses on the United States (“U.S.”) and its response, especially as it relates to vaccine hesitancy. Thus, while the below describes some global events, as the timeline progresses, it narrows down to events in the U.S. This Part demonstrates that the messaging to the public set up the problem addressed in this Article: that some individuals inappropriately assign a high risk to the COVID-19 vaccine. In other words, the mishandling of the COVID-19 pandemic—from the very beginning—contributed to COVID-19 vaccine hesitancy. Unpacking these facts and demonstrating how they contribute to vaccine hesitancy will then be discussed in Parts V and VI.
The novel coronavirus likely started to infect humans and begin its spread in October or November 2019.Footnote 2 In mid-November 2019 or early December 2019, the first patient with COVID-19 was diagnosed.Footnote 3 In mid to late December 2019, the virus that led to hospitalizations in China was sequenced and found to be an unknown beta-CoV strain, with an indicator of bat-origin CoVs.Footnote 4 In late December 2019, Dr. Li, an ophthalmologist at Wuhan Central Hospital, started to warn other doctors about the novel coronavirus.Footnote 5 Dr. Li was severely punished by the Chinese government. He also later died of COVID-19. The Wuhan Municipal Health Commission issued a statement that there was no obvious human-to-human transmission and their communications with the World Health Organization (“WHO”) did not set off any major public health measures.Footnote 6 The WHO denied that it had been alerted by Taiwan about cases of atypical pneumonia.Footnote 7
By early January 2020, the U.S. received intelligence regarding the threat of the novel coronavirus and predicting its spread.Footnote 8 While the U.S. took some measures, they can be described as minimal at best, such as issuing a travel notice.Footnote 9 But, government and public health officials were aware of and capable of predicting that a pandemic might ensue. Human error—across international lines—let small outbreaks turn into a world-wide catastrophe with millions of deaths.Footnote 10 Even the timeline of events within the U.S., as more fully described below, demonstrates the total lack of a containment plan.
In January 2020, the U.S. government was well aware of the potential for COVID-19 to become a pandemic. In documents obtained by the New York Times, a large email chain, referred to as the ‘Red Dawn’ emails, included government officials’ and experts’ comments like the following: “… if we assume the case ascertainment rate is even worse than 2009 H1N1, this is really unbelievable (higher transmissibility than flu). Any way you cut it, this is going to be bad. You guys made fun of me screaming to close the schools. Now I’m screaming, close the colleges and universities.”Footnote 11 And, “My argument is that we should treat this as the next pandemic for now, and we can always scale back if the outbreak dissipates, or is not as severe.”Footnote 12 Discussion in late January 2020 and early February 2020 revolved around the need for testing priority and capacity.Footnote 13
Some of what we know about the response comes from a whistleblower complaint. On or about January 10, 2020, Dr. Rick Bright filed a whistleblower complaint, alleging a wholly inadequate federal response that never actually contained the novel virus, demonstrating the federal government knew or should have known about the seriousness of the risk of a pandemic.Footnote 14 The Center for Disease Control (“CDC”) created a website dedicated to COVID-19, but as more fully described below, the messaging was confusing and did not reflect the potential gravity of the situation, which was known to some insiders at that time.Footnote 15 Yet, still in mid-January, Chinese officials continued to reiterate no clear evidence of person-to-person transmission and that the risk of community transmission was low.Footnote 16 By January 17, 2020, Dr. Nancy Messonnier, the director of the CDC’s National Center for Immunization and Respiratory Diseases, stated that we were dealing with a serious situation, but that the risk to the general public was low.Footnote 17
Finally, on January 20, 2020, China’s National Health Commission stated there was evidence of human-to-human transmission of the virus.Footnote 18 On January 20, 2020, the U.S. confirmed its first case of COVID-19 in the state of Washington.Footnote 19 This patient had recently traveled to Wuhan, China.Footnote 20 Within days, the WHO announced they would hold an emergency meeting.Footnote 21 But, the U.S. continued to move slowly on implementing non-pharmaceutical interventions (“NPIs”), such as social distancing and masking.
By late January 2020, U.S. Senators were briefed on the novel coronavirus, led by Dr. Robert Redfield and Dr. Anthony Fauci, two individuals that would later become well-known to the U.S. population.Footnote 22 On January 27, Joe Biden penned an op-ed in USA Today, in which he recognized the potential severity of the problem and criticized President Trump for his demonstrated failure of judgement in his response to the novel virus.Footnote 23 On the same day, multiple senators sent a letter to Secretary Alex Azar regarding their concerns about the novel coronavirus.Footnote 24 While this letter catalogued the number of confirmed cases world-wide, which seems quite small in hindsight, what stands out is the realization that the virus was spreading to multiple continents, which suggests high transmissibility.Footnote 25 On January 28, 2020, the Department of Health & Human Services (“HHS”) gave a press briefing that acknowledged the potential for a serious public health threat, but also indicated that “Americans should not worry for their own safety.”Footnote 26 On January 29, 2020, President Trump finally created a twelve person task force, led by Secretary Azar.Footnote 27
On January 30, 2020, the WHO declared the coronavirus to be a public health emergency of international concern:
The Committee believes that it is still possible to interrupt virus spread, provided that countries put in place strong measures to detect disease early, isolate and treat cases, trace contacts, and promote social distancing measures commensurate with the risk. It is important to note that as the situation continues to evolve, so will the strategic goals and measures to prevent and reduce spread of the infection. The Committee agreed that the outbreak now meets the criteria for a Public Health Emergency of International Concern and proposed the following advice to be issued as Temporary Recommendations.Footnote 28
On this same day, the CDC issued a press briefing confirming person-to-person spread, but also provided conflicting guidance. On one hand the CDC said that we needed to work together to prevent the spread, on the other, the CDC did not recommend the use of face masks at this time, something that was a preventative measure and could have reduced the spread of the novel coronavirus.Footnote 29 And, on this same day, President Trump held a rally in Iowa.Footnote 30
On January 31, 2020, Dr. Fauci remarked that the “WHO has issued, as you know, a Public Health Emergency of International Concern declaration.”Footnote 31 At the same time, Dr. Fauci noted a “low risk to the American public[.]”Footnote 32 The U.S. restricted incoming travel from China.Footnote 33 Multiple other countries, such as Italy and Singapore, similarly began to restrict travel to/from China.Footnote 34
In early February 2020, individual states and private non-profit groups became involved. In New York, Governor Cuomo announced a new hotline to be staffed by public health experts.Footnote 35 The Bill and Melinda Gates Foundation stepped in to commit $100 million to support a global response to the coronavirus.Footnote 36 In addition, the CDC announced the development of a test that can detect the virus using polymerase chain reaction (“PCR”).Footnote 37 During the first week of February, the President’s Coronavirus Task Force held a briefing that included data that the U.S. had 12 confirmed cases, but continued to indicate that the risk in the U.S. remained low.Footnote 38
By February 13, 2020, U.S. officials knew that COVID-19 was spreading via human-to-human interaction:
It is also odd—why would officials in the U.S. keep saying that they cannot confirm the extent of human-to-human transmission? I think the public is confused by all of these experts saying conflicting things. If human-to-human transmission is still in question, how was the transmission in China? It’s one thing that I predicted based on the social situation, how animals and humans interact. I got that people don’t have to believe. But now it is very clear—based on published results—that confirms over 90% them are not animal-to-human.Footnote 39
The Red Dawn email thread (from the documents obtained by the New York Times) starts to turn towards mitigation (which was never really adopted in the US) and demonstrates that U.S. officials watched Japan institute mitigation strategies, such as encouraging people with cold-like symptoms to stay home.Footnote 40
On February 24, 2020, the Trump Administration asked Congress for $1.25 billion for a coronavirus response.Footnote 41 On February 25 and 26, 2020, U.S. officials testified before the Senate Appropriation Committee and conducted media telebriefings.Footnote 42 At this time, Dr. Nancy Messonnier acknowledged that NPIs need to be implemented, including social distancing, cleaning measures, and possible school closures.Footnote 43 At the end of February 2020, things started heating up at both the federal and state levels, even though President Trump continued to misstate and/or mislead the public regarding the U.S. preparedness.Footnote 44 On February 28, 2020, President Trump hosted a rally in South Carolina.Footnote 45
The Red Dawn email chain also shows that the individuals on the email chain understood that the U.S. lagged behind other mitigation efforts:
At the moment, we indeed have not yet gone forward with any of these. The ‘unknown origin’ case in California shows ttat [sic] we missed a whole week before she was tested. And she may very well not be patient zero because she could have gotten it from someone with no symptoms at all.Footnote 46
In discussing Italy, Carter Mecher observed: “The lesson is that although things might have looked under control on Feb 20 (3 cases/0 deaths), things obviously weren’t fine. They couldn’t see how large the iceberg was below the water line. They were blind to the extent of disease and the extent of ongoing transmission. We have also been flying blind.”Footnote 47
The Red Dawn email chain really heats up in early March, as the experts realize that the window for NPIs to contain COVID-19 no longer exists: “6 deaths in Seattle[.] Seattle missed the window … It is too late for NPIs.” Footnote 48 In other words, the U.S. never contained. Frankly, even the subsequent attempts to mitigate were not consistently employed, thus, some deaths were likely preventable.
In early March 2020, President Trump continued to hold rallies. On March 2, 2020, at a rally in North Carolina, President Trump exclaimed: “My administration has also taken the most aggressive action in modern history to protect Americans from the coronavirus.”Footnote 49 At the same time, the states continue to discuss measures to attempt to control the spread of the virus.Footnote 50 The federal and state responses do not appear coordinated. This bifurcation continued to grow through spring 2020.Footnote 51 On March 12, 2020, both California and New York announced NPI regulations, such as social distancing and limiting gatherings.Footnote 52
On or about March 13, 2020, the CDC issued school closure guidance.Footnote 53 The same day, President Trump proclaimed the novel coronavirus to be a national emergency.Footnote 54 This was the beginning of the shut-downsFootnote 55—several months too late from a public health perspective. Containment never happened. Mitigation efforts occurred but the pandemic remained uncontained, and even during mitigation times thousands of people died every single day.
After March 2020, the problems in the response continued. Testing capability lagged far behind what was needed for early detection of community spread.Footnote 56 An entire article can be written about masking, from delayed implementation to politicization to enforcement and beyond.Footnote 57 School closures, particularly in K-12, lasted too long due to the other public health impacts on children and data to support safe re-opening; in some cases, over a year.Footnote 58 Lack of PPE and other supplies contributed to the ongoing problems. Between March 2020 to present day, the number of problems in the response mounted.
In April 2020, the situation became bleak. Vice President Pence blamed the CDC and China for the delay in the response to the novel coronavirus.Footnote 59 Throughout the world, countries initiated lockdowns and curfews.Footnote 60 On April 3, 2020, the CDC recommended the use of facemasks in public. The Trump White House promoted a different story on facemasks.Footnote 61 The public received mix messages and facemasks became a political statement—people likely died as a result.Footnote 62 On April 8, the news reported that U.S. intelligence warned of the novel coronavirus as early as November 2019.Footnote 63 In mid-April, President Trump announced that the U.S. would halt funding to the WHO.Footnote 64 On April 23, 2020, President Trump made a ridiculed suggestion that injecting a disinfectant into a human could be a therapeutic approach.Footnote 65 On April 27, 2020, The Washington Post reported that President Trump received more than a dozen classified briefings on the novel coronavirus in January and February 2020.Footnote 66 This revelation is particularly important given that President Trump held rallies during January and February and played down the seriousness of the virus during that time frame.
In May 2020, President Trump continued a campaign that blinded the public from the real threat of the pandemic. On May 6, 2020, President Trump remarked that the reason that the U.S. had so many cases was because the U.S. did more testing.Footnote 67 President Trump indicated that if we stopped testing, we would have very few cases.Footnote 68 At a hearing before the Senate, U.S. Senators made remarks to the Coronavirus Task Force Members that President Trump was hiding the truth from the American people.Footnote 69 Senator Patty Murray stated:
Families across the country are counting on us for the truth especially since it’s clear they will not get it from President Trump. The truth is essential. So, people have the facts, so they make decisions for themselves, their families and their communities. Lives are at stake. The president is not telling the truth. We must … because the Trump administration’s response to this public health emergency so far has been a disaster on its own . Delays, missteps , have put us way behind where we need to be on diagnostic testing and allowed inaccurate antibody tests to flood the market…[and] corruption and political interference have impeded efforts to secure desperately needed personal protective equipment … and promoted dangerous, unproven treatments … this is far from the first time that Trump has tried to silence experts … the fact of the matter is President Trump has been more focused on fighting against the truth than fighting this virus … .Footnote 70
Senator Mitt Romney remarked: “I find our testing record is nothing to celebrate.”Footnote 71 In May 2020, the United States still did not have a handle on testing, let alone mitigation.
In June 2020, the mixed response continued. The White House spoke out about the jobs report and promoted an end to the lock downs for the states.Footnote 72 President Trump held rallies and required the attendees to sign a waiver with the following language:
By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present,” the disclaimer notes. “By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.Footnote 73
During this time, Dr. Fauci explained that the reason the public was told not to wear masks earlier was because of the limited supply of N95 and surgical masks, which were needed for the healthcare professionals.Footnote 74 The White House appeared to order the cancellation of federal funding to a researcher who studied the coronavirus, with the underlying reason stated that “the grantee was not in compliance with NIH’s grant policy[],” although some believe that the White House was attempting to interfere with scientific research into the novel coronavirus.Footnote 75 Toward the end of June 2020, the Trump Administration took steps to close federally funded COVID-19 testing sites.Footnote 76
In July 2020, Senator Mitch McConnell publicly pressed people to wear face coverings, describing it as the single most important thing people can do to protect themselves and others.Footnote 77 The issue of facemasks became increasingly politicized, much to the detriment of the public. On July 25, 2020, a Texas hospital was overwhelmed by novel coronavirus cases and announced that it may need to send some patients home to die.Footnote 78 On July 27, 2020, data showed that Louisiana had the most cases per population.Footnote 79 Despite the immense death and disease, President Trump publicly stated: “Young people are almost immune to this disease.”Footnote 80 President Trump and his administration continued to press a false narrative that the U.S. had the best testing in the world.Footnote 81 At the end of July 2020, the reported number of COVID-19 deaths in the U.S. was close to 150,000, although we know from later research that this number likely severely undercounted the actual number of deaths at this time.Footnote 82
By August 2020, some hindsight was possible, although it will likely be years before a full forensic autopsy will detail the devastation. Health Professionals, in an open letter, pled for an effective and coordinated response, stating that ninety-nine percent of COVID-19 deaths in the U.S. could have been prevented.Footnote 83 A Time Magazine article articulates why the U.S. was failing in its response:
The U.S. is surely losing the war on COVID-19, but it did not have to be this way. Of the G-7 countries—the U.S., the U.K., Canada, France, Japan, Germany and Italy—only we have an outbreak that continues to spin out of control … Desperate for supplies as the pandemic worsened in early April, some hospital executives, doctors and other caregivers turned to shady dealers to arrange for shipments of overpriced gear from China… [Trump] wasted weeks early on downplaying the virus; he has stubbornly clung to a fantastical belief that the virus will simply “disappear”; he banned many travelers from China but squandered the time the move bought him by failing to set up an adequate testing and tracing program; he encouraged states to reopen ahead of his own Administration’s guidelines; and he has repeatedly cherry-picked statistics that make the situation in the U.S. look far better than it is in reality … Then there were the masks … Masks aside, the most glaring failure of the federal government has been, and continues to be, a lack of adequate testing infrastructure, which is a key element of pandemic response, as testing shows how bad an outbreak is getting and reveals key hot spots … No single person better represents the bitter politicization of science than Dr. Anthony Fauci, longtime head of the National Institute of Allergy and Infectious Diseases.Footnote 84
In mid-August 2020 the number of recorded deaths placed COVID-19 as the third leading cause of death in the US, behind heart disease and cancer.Footnote 85 The CDC reinstated its COVID-19 data collection system after the reporting system to HHS led to delays and data problems.Footnote 86 By late August, cases were increasing once again, both in the U.S. and abroad.Footnote 87 While scientists and clinicians learned a lot about the novel coronavirus over the previous months, effective vaccines were months away and widespread efficacy of therapeutics remained elusive.Footnote 88
In September 2020, New York, once the major hotspot for infections, had some control over the spread of the virus.Footnote 89 This was short-lived as travel over Thanksgiving and Christmas put the U.S. back into another wave. Testing in the U.S. remained plagued with problems.Footnote 90 In North Dakota and South Dakota, the novel coronavirus spread on college campuses and disproportionately in the Native American population.Footnote 91
Throughout the fall of 2020, facemasks and other non-therapeutic interventions remained politicized. Presidential candidate Joe Biden campaigned from his basement. President Trump campaigned at public events and held rallies. At the end of October 2020, the U.S. set a new high in daily COVID-19 infections.Footnote 92 Governors warned against holiday travel over Thanksgiving. Despite warnings, Americans travelled, cases spiked, and lock downs were reinstated. In December 2020 and January 2021, hospitals became overwhelmed. In California, for example, the Governor issued new lockdown rules in early December 2020.Footnote 93 Not only were cases spiking, but data showed that hospitals were soon to be overwhelmed. Public health officials needed to slow the Christmas travel. This latest lockdown faced opposition. Thousands of people died. Vaccines, the main pharmaceutical intervention to attempt to control the spread, death, and serious disease, were just being introduced.Footnote 94
In December 2020, COVID-19 vaccines became available in the U.S., although in limited supply. The U.S. Food & Drug Administration (“FDA”) authorized two vaccines, Pfizer and Moderna, for Emergency Use Authorization (“EUA”). Shortly thereafter, the Johnson and Johnson (“J&J”) vaccine also received authorization. Initial interest in the vaccines far exceeded availability. But, public health experts understood that at some point everyone who wanted a vaccine would have access and a new public health challenge would arise—vaccine hesitancy. This challenge became exacerbated by the arrival of the Delta variant, which disproportionately caused serious death and disease in non-vaccinated individuals.
This Article tackles this issue of vaccine hesitancy, which is an important component in the timeline of efforts to contain and mitigate the coronavirus. Although vaccine hesitancy is a nuanced topic, two main forms of vaccine hesitancy exist: (1) long standing mistrust of the government by minority populations and (2) individual misperception of risk. The first form is critically important, but is the focus of the work of other scholars, such as Ruqaiijah Yearby and Seema Mohapatra. It is this second form of vaccine hesitancy that is addressed in this Article. This concept of vaccine hesitancy is not new; it was predictable that hesitancy toward the COVID-19 vaccine would exist. But the missteps described above, such as holding rallies, telling the public that young people are immune, delaying widespread testing, and not implementing NPIs earlier all contributed to the public’s inability to appropriately assign risk to the COVID-19 vaccine and the risk of the vaccine-preventable disease. This Article contributes to the important work on vaccine hesitancy and decision-making.
III. THE SCIENCE OF COVID-19
Understanding the science is a critical component of assigning evidence-based risk. Understandably, however, the non-scientific community may not always comprehend the technical science of medical interventions, so they end up believing information provided to them—whether it is correct or not. Without understanding the applicable science, the public has no way to know how to sift through information, understand policy, and appropriately assign risk.
For the sake of terminology, the term COVID-19 refers to the disease. The virus that causes the COVID-19 disease is called SARS-CoV-2. This is similar to HIV/AIDS: HIV is the virus that causes the disease AIDS. Here, similarly, SARS-CoV-2 is the virus that causes the disease COVID-19. This Article will seek to use the term SARS-CoV-2 (or novel coronavirus) when discussing the virus and the term COVID-19 when referring to the disease.
What do we know about SARS-CoV-2/COVID-19? Scientists know some, but not all, of how this virus works.Footnote 95 SARS-CoV-2 is an RNA virus, which means that it encodes strands of nucleotides that are translated into proteins. The sequencing of the virus tells us not only how the virus works, but also how it spilled over into humans, how it spreads, and how it adapts.Footnote 96 Without explaining the basics of how RNA encodes the amino acids that form the proteins, let us just focus on the proteins created by SARS-CoV-2. SARS-CoV-2 appears to encode twenty-four proteins.Footnote 97 At least four of these proteins have uncertain roles or their potential roles are highly speculative.Footnote 98 Several of the proteins function to assemble the virus. One protein, called Spike, allows the virus to attach to and infect human cells.Footnote 99 In other words, Spike is important to infection, and thus became the target for vaccine development.
The Spike protein is the target for the three main vaccines available in the U.S.: Pfizer, Moderna, and J&J; the Spike protein is also the target for other vaccines developed around the world. The three U.S. vaccines function in practically identical ways, although they utilize different molecular techniques. Notably, the molecular techniques in the Pfizer and Moderna mRNA vaccines are novel, which may explain some of the vaccine hesitancy, discussed herein.
Broadly, the vaccines contain a portion of the molecular code of the Spike protein—but not any other part of the SARS-CoV-2 virus. This snippet of the code for the Spike protein is injected into a person and the person’s immune system recognizes a foreign object and prepares antibodies to fight the offensive intruding object. In so doing, the body’s immune system creates a response to the Spike protein. However, since the vaccine does not contain the full virus, no actual infection occurs. Upon mounting the defense to the injected snippet, the human immune system places this defense into its memory so that it can quickly recall how to defend the body should the body see this Spike protein again. Thus, vaccines do not prevent subsequent infections, but allow the body to fight off any infection quickly. This is why the COVID-19 vaccines are highly effective against severe symptoms of COVID-19, but not necessarily effective against initial infection. Further, to date, the Moderna, Pfizer, and J&J vaccines appear effective against the emerging variants (e.g., alpha, beta, gamma, delta, etc.).Footnote 100
From a public health perspective, the introduction of effective vaccines was a milestone, but it also created a race to inoculate as quickly as possible. In the currently known variants, the virus appears not to be able to mutate the coding sequence for portions of the Spike protein (the target for the vaccines) too much because then the virus will not be able to infect its host.Footnote 101 Thus, variants will continue to arise and potentially be more virulent (or infectious), but to date, the variants are still targeted by the vaccines.Footnote 102
The discovery of effective vaccines (and therapeutics) is critical to resolving the pandemic.Footnote 103 If, for example, a new variant emerges that is outside of the scope of the vaccine, then effective therapy will be even more critical. In addition, vaccines are highly effective, but not completely effective, thus some vaccinated individuals may require treatment upon infection.Footnote 104 The unequal access to vaccines worldwide also dictates the need for therapeutics.Footnote 105 Also, some individuals will refuse to be vaccinated or may have a medical condition that does not allow vaccination, which is yet another reason to need therapeutics.Footnote 106 The list can continue, but in sum, a combination of vaccines and therapeutics are needed. Understanding the science of the virus is critical to solving the current pandemic—at least from the scientific side. The individual perception of risk of vaccines and therapeutics is critical to solving the current pandemic. Vaccine-hesitancy is its own legal policy challenge, discussed herein.Footnote 107
From an evidence-based risk assessment analysis, the vaccines are safe and effective and the risk of the disease of COVID-19 is high—the benefits of the vaccines greatly outweigh the risks.Footnote 108 COVID-19 presents an interesting case study for vaccine hesitancy because sometimes vaccine hesitancy can be attributed to the fact that people do not have the personal experience to understand the risk of the vaccine-preventable disease, but with COVID-19, many do.Footnote 109 Thus, at first blush, the experience of a pandemic might allow people to appropriately assign the risk of disease. But, for some vaccine-hesitant individuals, the COVID-19 daily death toll was not convincing. As discussed above and below, this may partially be attributed to the mishandling of the pandemic from the beginning. The public received mixed messages across the board—concerning whether NPIs were important, whether young people were immune to the virus, and whether they needed to stay at home. This likely contributed to individual’s misperception of risk of COVID-19 and the importance of the vaccine as a public health measure.
This Article posits that understanding why individuals inappropriately assign risk to the COVID-19 vaccine will provide important information to create interventions to allow individuals to appropriately assign risk. The decisionmaking process is complex, as described below, and is the focus of this Article, especially as it relates to COVID-19 vaccine hesitancy.
IV. DECISION-MAKING THEORIES AND PERCEPTIONS OF RISK
How members of the public perceive risk is critical to understanding the range of reactions to this public health crisis and the attendant interventions and policies that need to be developed. Decades of research on decision-making illuminates how people perceive risk, including how individuals inappropriately assign risk even in the face of evidence-based risk assessment. Four decision-making theories –affect, ambiguity, cultural cognition, and heuristics/dual process—are empirically tested theories, which are recognized in legal and scientific literature. An overview of each theory is provided below. Importantly, the scholars in each of these areas often collaborate and recognize that multiple decision-making theories can co-exist and that one process may dominate at one time or another time.Footnote 110 This overview is important as Parts V and VI will utilize these decision-making theories to explain the public’s (mis)perception of risk and provide a normative framework that can guide legal policymakers in the area of COVID-19 vaccine hesitancy.
A. Affect
The Affect Heuristic, a term coined by Paul Slovic and colleagues, explains how emotion underscores risk perception.Footnote 111 In this theory, a “faint whisper of emotion,” known as affect, impacts decision-making.Footnote 112 Work by Slovic and others demonstrates that people want to experience and replicate positive emotions and, conversely, people do not want to experience and replicate negative feelings.Footnote 113 If a person experiences a faint whisper of a negative emotion, they are more likely to assign a high risk and low benefit to the decision, such that they, in essence, reject the proposition.Footnote 114
Unsurprisingly, emotion impacts how people perceive situations. This can arise in many situations. For example, some people fear flying, even though the car drive to the airport is statistically more dangerous.Footnote 115 This can be attributed, in part, to the dread of a plane crash. While planes rarely crash, when they do, it is a major news story. Over 30,000 people die annually in car crashes and many more are seriously injured.Footnote 116 Yet, people do not appropriately assign the risk of flying compared to driving.Footnote 117
Linking emotion to vaccine hesitancy may help explain how feelings of dread impact how a parent assigns risk to childhood vaccines, for example.Footnote 118 Some parents feel dread associated with a vaccine, although, irrationally not with the vaccine preventable disease.Footnote 119 If evidence-based assessment of risk was the driving factor, parents would dread the disease more than the childhood vaccines. The Affect Heuristic likely applies to the COVID-19 vaccine hesitancy. For example, fake information regarding COVID-19 vaccines and their purported impact on fertility (to be clear, there is no proven link) can conjure up the feeling of dread or fear in an individual’s mind.Footnote 120 The individual assigns a high risk to the COVID-19 vaccine and a low risk to the disease, a risk perception that is not in line with evidence-based risk assessment.Footnote 121
B. Ambiguity
Ambiguity aversion, with important work pioneered by Daniel Ellsberg, demonstrates that when a person receives conflicting information, they are unable to appropriately assign risk.Footnote 122 The additional component to this theory is that people are more comfortable with the known, even if it has a higher risk, than the unknown, even if that likely has a lower risk. For example, in a provocative thought experiment, Ellsberg demonstrated that people prefer to bet on a known ratio compared to an unknown ratio.Footnote 123
Ambiguity aversion helps us to understand how people assign risk when presented with conflicting information.Footnote 124 For example, if parents are presented with information about vaccines, like that vaccines are very safe and effective, but also that there is some risk of infection at the injection site and that physicians cannot promise that there will never be any other side effects, parents may receive this information as ambiguous and assign a higher risk than warranted.Footnote 125 The inability to say that no risk exists is perhaps the very thing that leads to ambiguity aversion and underscores why people might assign a high risk, even when the evidence-based risk assessment is low. Such is the case with vaccines, for example. Important work by Blaisdell and colleagues demonstrated that ambiguity aversion underscores why vaccine hesitant parents decline to vaccinate.Footnote 126
Empirical studies demonstrate the link between ambiguity aversion and vaccine hesitancy. In a study using focus groups, Blaisdell and colleagues learned that vaccine-hesitant parents could not appropriately assign risk.Footnote 127 For example, vaccine hesitant parents resisted vaccinating their child(ren) because the parents thought that their child was not at risk of contracting a vaccine preventable disease.Footnote 128 Or, they thought that if their child contracts a vaccine preventable disease, then they could just take their child to the hospital for treatment.Footnote 129 Evidence based assessment of risk, however, does not support the decisions of the vaccine-hesitant parents.
Ambiguity aversion may also explain COVID-19 vaccine hesitancy. An individual may assign a low risk to COVID-19 and not receive the vaccine if, for example, they are young and think the risk of a major onset of the disease is low. This not only discounts the risk of the disease but ignores that asymptomatic, individuals can still spread the disease to others.Footnote 130 The more spread, the more likely variants will develop, thus the need for universal vaccination, regardless of risk factors.Footnote 131
Ambiguity aversion may also help explain how individuals misperceive risk when they obtain false and misleading information from the internet. If an individual reads information that the government is trying to micro-chip people via vaccine or any other similar type of conspiracy theory, then that individual may not be able to appropriately discount that information.Footnote 132 The individual may assign a high risk and low benefit to the COVID-19 vaccine. A (mis)perception that is not based on evidence-based assessment of risk.
C. Cultural Cognition
Cultural cognition, with work spearheaded by Dan Kahan at Yale University’s Cultural Cognition Project, groups people based on four identities; the participants perceive risk in a way that advances the wellbeing of their group.Footnote 133 These identities correspond with philosophical categories: individualism, hierarchy, communitarianism, and egalitarianism.Footnote 134 Work by Kahan and colleagues recognizes that a particular individual may associate with more than one philosophical belief, but that even if an individual overlaps between one or more groups, their perception of risk can still be aligned with their place on the philosophical grid.Footnote 135
The underlying idea behind cultural cognition is that people identify with philosophical categories and their placement in these categories helps us to understand or predict their perception of risk.Footnote 136 While cultural cognition does not rely on demographic factors as a predictive marker, it is likely that demographic factors contribute to the placement within a philosophical category. For example, white males, given their historical role, may be more individualistic compared to other demographic groups.
Kahan, along with work by others, suggests that to align the public’s perception of risk with evidence-based assessment of risk, the evidence must be presented in a way that aligns or affirms the philosophical group’s identity—fact sheets generally do not do this.Footnote 137 The method of communication is important. If the facts are communicated in a manner that affirms the group’s identity, then it is more likely that the people in that group will appropriately assign risk. The communication of the same facts to the egalitarian group and the individualistic group would look quite different, even though the underlying facts are the same.Footnote 138
Cultural cognition can help us understand vaccine hesitancy as well. Previous studies demonstrate that some individuals, depending on where they are on the group-grid configuration, may be skeptical of new technology.Footnote 139 This can potentially translate to the COVID-19 vaccine, which, at least for Pfizer and Moderna, has been lauded for being able to capture mRNA technology.Footnote 140 The “newness” of the technology can actually be the very reason that particular groups may assign a high risk and low benefit to the COVID-19 vaccines.
D. Dual Process Theory and Heuristics
Dual Process theory, with important work by Daniel Kahneman and Amos Tversky, explains that people utilize two forms of thinking, one fast and one slow.Footnote 141 Fast thinking relies on heuristics, like things that people can easily recall.Footnote 142 Often fast thinking is useful, but it also leads to errors. Slow thinking requires deliberation and energy.Footnote 143 Slow thinking is called upon when the fast thinking process fails, such as when presented with a more complicated math problem, or when one deliberately engages the slow thinking process. Deliberately engaging the slow thinking process is not necessarily natural.
One way that fast thinking operates is to rely on heuristics, discussed more fully below. People may make quick decisions by relying on biases created throughout their life. For example, people may associate certain characteristics with specific professions. Kahneman and Tversky demonstrated that if subjects are presented with a hypothetical person with certain characteristics, such as shyness, withdrawn, and helpful and then presented with choices of that person’s professions, people are likely to choose the answer choice of librarian over an answer choice of physician.Footnote 144 This is an interesting result given that there are more physicians than librarians. These experiments demonstrate that people rely on heuristics compared to statistical data, such as population size and percentage of physicians compared to librarians.Footnote 145 Other biases, or heuristics, also inform fast thinking.
Slow, or deliberative, thinking requires that people overcome their heuristics. In some cases, this is easy because the decision itself cannot rely on a heuristic, such as solving a complicated math problem.Footnote 146 In other cases, it is much more difficult to move from fast thinking to slow thinking. For example, it may be difficult to switch from fast thinking to slow thinking in facial recognition.Footnote 147 The fast thinking involved in facial recognition is part of our evolutionary development to quickly analyze and make decisions.Footnote 148 But, biases are involved in facial recognition. To switch to slow or deliberative thinking for something such as facial recognition poses challenges. Also challenging is to understand how people learn to “think slow.”Footnote 149 This slow, or deliberative process, may be needed to help the public align their perception of risk with evidence-based assessment of risk.
Fast and slow thinking can help explain vaccine hesitancy as well. If, for example, someone knows an individual who suffered a strong reaction to the COVID-19 vaccine, then fast thinking may result in vaccine hesitancy. Another way in which fast thinking, or relying on a heuristic, could be employed is if someone knows an individual who got COVID-19, but had no or mild symptoms. That person may assign a low risk to the disease and a low benefit to the vaccine; thus, they might decline to be vaccinated. Or, if a person received messaging from government officials that young people are immune to COVID-19 or that the virus will soon disappear, relying on this information they might assign a low risk to the disease and a low benefit to the vaccine. Or, if individuals receive messaging that the COVID-19 vaccine is unsafe, then individuals might assign a high risk to the vaccine. Conversely, slow thinking might prompt the individual to consider the systemic risk of community transmission as a reason to be vaccinated, regardless of their individual risk.Footnote 150 In addition, the science behind the vaccines, discussed in Part III, allows the assignment of low risk to the vaccine, which might also require slow thinking to consider the mechanism of vaccines.
Tversky and Kahneman’s work demonstrates how bias influences decisionmaking.Footnote 151 While numerous biases exist, Tversky and Kahneman discuss the biases that impact risk perception: representativeness, availability, and adjustment and anchoring.Footnote 152 A large body of work discusses these heuristics, but for brevity, each bias is summarized here. Representativeness occurs when an individual associates certain characteristics with a particular class.Footnote 153 Availability bias occurs when an individual is influenced by the ease with which they can bring the frequency or probability of an event to their mind.Footnote 154 Adjustment and anchoring biases occur when individuals start with an initial value and then adjusts.Footnote 155 These are cognitive biases that impact the heuristics that individuals rely on to make their decisions as it relates to their perception of risk.
So, for example, if an individual knows someone who had a terrible experience with COVID-19, this can anchor that individual’s perception of risk of contracting COVID-19. Or, on the other hand, if an individual knows someone who was asymptomatic with COVID-19, then their anchor will be different. The first individual might perceive a high risk of contracting COVID-19, while the second individual might perceive a low risk. This could also be the case with the COVID-19 vaccine. If an individual knows someone who experienced a terrible reaction to the COVID-19 vaccine, then they might assign a high risk to the vaccine. Conversely, if someone knows someone who had a mild reaction, they might assign a low risk. These biases can be layered. An individual might know someone who had an asymptomatic case of COVID-19 and know someone else who had serious side effects from the vaccine, this person might perceive low risk of the disease and a high risk of the vaccine. These heuristics might further be influenced by the messaging from federal, state, and local officials during the pandemic and social media.
E. Decision Making Theories and New Variables
Decision-making is dynamicFootnote 156 and in some cases, multiple theories may explain any decision at any time. In other cases, one decision-making theory may dominate a particular decision, but the person may make different decisions at other times for different underlying reasons. In sum, all these processes, as well as others, help us understand how people perceive risk. This is important for policy implementation.
The big question then becomes how to align the public’s perception of risk of the COVID-19 vaccine with the evidence-based assessment of risk. The decision-making theories described above are the basis of the way we can analyze and understand individual (mis)perception of risk as compared to evidence-based assessment of risk. This Article posits that variables that are either untested or incompletely tested may contribute as well. These variables are (1) the rise of individualism, (2) internet, and (3) economic forces.Footnote 157
The next Part connects the factual background in Part II and what we understand about decision-making and perception of risk with the science of COVID-19 and/or the mRNA vaccines and the evidence-based assessment of risk. This Article draws on previous work that suggests that these modern-day variables of individualism, internet, and economics, be evaluated to understand how individuals receive information and the ways in which it can help explain the disconnect between individual perception of risk and evidence-based assessment of risk.Footnote 158 Exploring these additional variables may also prove fruitful in creating policies, including interventions, that effectively allow individuals to appropriately assign risk.
V. MODERN DAY VARIABLES
Decades of attacks on science create fundamental challenges to align the public’s perception of risk with evidence-based assessment of risk. This Article seeks to provide a roadmap out of the trajectory of misperception not only for the current public health crisis, but for the long-term ability to use evidence-based research to solve major problems, like climate change. Both COVID-19 and climate change require immediate action, but sectors of the public deny that climate change exists. Sectors of the public perceive COVID-19 as a hoax—an alarming impediment to action.Footnote 159 This problem of the public’s misperception of risk has serious short-term and long-term consequences.
The failure of the federal response to this pandemic, described in Part II, helps to explain why it is so difficult to align some individuals’ perception(s) of risk with evidence-based risk assessment.Footnote 160 In addition, a lack of understanding of how vaccines work, described in Part III, allowed misinformation to flourish. Without the ability to easily dismiss false statements about harms of vaccines, the individuals could not (or did not) take proper action. It is certainly not helpful and probably hurtful that the President’s message to the public in January, February, March, and April of 2020 minimized the evidence-based risk assessment. In addition, the ability of the federal government to appropriately respond was crippled by years of underpreparing—and actually undoing—some processes put in place to address a global pandemic.Footnote 161
These failures, as outlined in Part II, help to explain why members of the public did not understand the actual risk. The failure of the federal response was symbolic of the decades of the “war on science” that has crippled the public’s ability to appropriately assign risk.Footnote 162
The other end of the spectrum that underscores the problem of risk perception is that some states handled the problem very well, so the public could not understand why this pandemic required such extreme measures.
Both the under-preparedness of the federal response and the over-preparedness of the state responses possibly created some ambiguity in the real risk of the COVID-19 pandemic. This creates a firestorm in which it is very difficult to align the public’s perception of risk with the evidence-based assessment of risk. This Article provides a description of some modern-day variables that likely contribute to (mis)perception of risk.
A. The Rise of Individualism and its Relationship to COVID-19 Vaccines
The rise of individualism refers to a change in society that occurred in the 1950s in which people broke out of their community structures.Footnote 163 In the 1950s, people often lived in tight knit communities where groupthink was the norm and individual expression received hostility. This allowed for a sense of community, but it also allowed for sexism and racism.Footnote 164 The Baby Boomer generation broke out of these norms, giving rise to anti-Vietnam protests and openness to the civil rights movement.Footnote 165 Thus, the rise of individualism created great social change, but with these positive developments also came some structural challenges, such as a liberty perspective that fails to understand that liberty is not absolute.
While community and society are not the same, the two are connected. To live in a civilized society, community rules and norms are needed. An example is the requirement to stop at a stop sign when driving; this is an organized method of driving to decrease accidents. Thus, to be part of a community and a society, people have individual liberty restrictions to preserve the larger community. Similarly, public health restrictions like immunization requirements have historically been used to protect the general public.Footnote 166 As stated in the foundational case, Massachusetts v. Jacobson:
The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have the power to dominate the majority when supported in their action by the authority of the State.Footnote 167
The individualism referenced in this Article results from the misunderstanding of what liberty truly means—namely, mistakenly believing one’s liberty is absolute, and acting without regard to societal obligations. So, what is a concrete example? The refusal to wear a mask in an indoor setting, such as an airplane, because this violates a personal sense of liberty.Footnote 168 The rule requiring a mask is similar to the rule that requires a driver to stop at a stop sign: the purpose is to create a safe environment where others can also use the space.
This individualism might be a variable in the vaccine hesitancy to the COVID-19 vaccine. An injection of a vaccine confronts autonomy, not only so, but may be especially acute if it is mandatory.Footnote 169 But, the deeper issue explored herein is the sense that individuals do not feel a responsibility to their communities to be vaccinated to help slow the spread of a highly contagious and deadly virus. An individual might take the position that they are low-risk, that they already had COVID-19, that the pandemic is a hoax, that they do not want their child vaccinated, or any other position that focuses solely on themselves and not the community or society.
Much of this perception, or really misperception, of the risk of COVID-19 can be connected to the mishandling of the COVID-19 pandemic at the federal level, which allowed for individuals to take a myopic view. For example, in February 2020, the U.S. government knew that the novel coronavirus spread via human-to-human contact, but President Trump also held political rallies, where groups of people gathered together.Footnote 170 While states were instituting lock-downs, which require compliance by the community, President Trump was sending the message that the reason the U.S. had so many cases is because we are testing more people.Footnote 171 Components of the messaging by the federal government, particularly by President Trump, can be characterized as feeding individualism and down-playing the reality that community-based buy-in was needed to slow the spread of the novel coronavirus.
This individualism and its impact on decision-making is the variable that needs to be studied in the decision-making theories of affect, ambiguity aversion, cultural cognition, and dual process theory/heuristics, which will be discussed in Part VI.
B. The Role of the Internet
The role of the internet and its impact on society is a large topic and not one that can be completely investigated herein. However, some general observations about how information is presented to people and its impact on risk perception can be accomplished. The internet is a major source in which people obtain information.Footnote 172 Social media companies have algorithms that feed people information that appears to be in line with their searches.Footnote 173 In addition, automated programs and trolls contribute to the spread of misinformation through social media.Footnote 174 While some efforts were made by some social media companies to combat this phenomenon, the results demonstrate that these approaches were too small and wholly insufficient to fully address the spread of misinformation on the internet.Footnote 175 The methodology of providing information to users on the internet is persuasive. While this Article will not delve into the proliferation of conspiracy theories online, the concept that people fall prey to what they read online is important and instructive.
Some false information about vaccines led Google to change its algorithm to provide more accurate information in search results.Footnote 176 This response by Google is an interesting one, and perhaps the right one, given that their typical algorithm might bring up websites with false information. But, this problem and the response by Google raise issues: How are people receiving their information on the internet and who is controlling what information is put in front of them? Do we want Google, Facebook, and other service providers determining how information reaches people? This is a complicated question without an easy answer.
Looking at the issue of vaccines alone, the internet is rife with false and misleading information.Footnote 177 Facebook groups for anti-vaxxers or vaccine hesitant parents exist.Footnote 178 Communities are formed in which like-minded people can limit their exposure to information that does not conform with their beliefs—reason and logic are left out of the equation.Footnote 179
For the COVID-19 vaccines, false but plausible-sounding theories are spreading. For example, people can readily find information that the COVID-19 vaccine causes miscarriages on the internet, despite no evidence backing this claim.Footnote 180 Yet, women of childbearing age and parents of female children may be hesitant about receiving the COVID-19 vaccine—the result of a misunderstanding of risk assessment. Other theories exist that the government is trying to microchip us or that this is a master plot for the pharmaceutical industry to make money.Footnote 181 These theories, which are false, are presented in a way that elicits fear and dread—a known emotion that impacts risk assessment—and sway people into refusing or resisting the COVID-19 vaccine.Footnote 182 The impact of these false theories may also create ambiguity: What if the vaccine is later shown to impact fertility? Is it better to wait to be vaccinated? As explained previously, people will inappropriately assign risk in the face of such ambiguity. A lack of understanding of how vaccines are developed and work enables the misinformation spread on the internet. Another misunderstanding spread on the internet about vaccines in general is that they will give you the very disease that they seek to prevent. Yet, with the currently used COVID-19 vaccines, which are not live-virus vaccines, it is impossible to get COVID-19 from vaccination.Footnote 183 However, a misunderstanding of the science may lead some to believe such a theory.
The CDC website has an entire page dedicated to addressing “myths and facts” about the COVID-19 vaccine.Footnote 184 Among the myths addressed on this webpage is whether receiving the COVID-19 vaccine will make someone magnetic, whether vaccines impact fertility and menstruation, whether the vaccine will make someone test positive for COVID-19, whether the vaccine will make a person sick, etc.Footnote 185 While the information on the CDC website is accurate and fact-based, it is unclear that it can really overcome the volume of misinformation presented on the internet, especially when the misinformation is presented in such a way that impacts how people assign risk.
Obtaining information from the internet also highlights the problems with the messaging from the federal government regarding the seriousness of COVID-19 and how to implement mitigation efforts. Users can live in an echo-chamber. For example, President Trump stated that “Young people are almost immune to this disease[],” such a statement can not only be reiterated on the internet, but can take on an entirely new meaning, such as that schools should be open with no COVID-19 restrictions.Footnote 186 Not only are young people not immune to this disease, but the statement discounts their role in community spread. Application of this variable, the role of the internet, to the decision-making theories is discussed in Part VI.
C. Economic Forces Supporting Vaccine Hesitancy
Some leaders of anti-vaccine movements are economically incentivized to spread misinformation about vaccines so they can make money from alternative products.Footnote 187 These products are usually branded as ‘natural’ or ‘holistic’ and are advertised as a safe alternative to the dreadful vaccines.Footnote 188 This is a big share of our marketplace and a go-to alternative for ‘anti-vaxxers’ and vaccine hesitant people.
A main platform to spread vaccine misinformation and promote scientifically unproven alternatives is the internet. Thus, the economic forces are, not surprisingly, tied into the larger problems created by the internet, discussed above.Footnote 189 A leading anti-vaccine group, the National Vaccine Information Center, is largely funded by an osteopathic physician, Joseph Mercola, who “has amassed a fortune selling natural health products, court records show, including vitamin supplements, some of which he claims are alternatives to vaccines.”Footnote 190 There is no scientific support for ‘alternatives to vaccines.’Footnote 191
These platforms that tout misinformation and hock their wares influence people to forgo or delay vaccination.Footnote 192 These purported alternatives play on the recipient’s emotions. The sellers provide misinformation about vaccines that elicit feelings of dread and then provide purported alternatives that sound safe because they are ‘natural.’ ‘Natural’ does not mean safe and it does not mean effective,Footnote 193 but the word is associated with those characteristics.
The economic forces that support and promote vaccine refusal and vaccine hesitancy are not new; other industries utilize the same methods. The tobacco industry is a prime example of deception.Footnote 194 Some of the tactics included the creation of their own-self-serving publications that publish articles by their paid so-called ‘scientists.’Footnote 195 Other tactics included undermining the funding mechanisms for scientists who conducted anti-tobacco research.Footnote 196 The tobacco industry also commercialized the benefits of smoking and completely lied about the effects of second-hand smoke.Footnote 197 These deceptive practices—publication, promotion, commercialization, vilifying opponents—are all used by some people/groups in the ‘anti-vaxx’ movement.Footnote 198 Similarly, individuals can find websites dedicated to anti-vaccine movements.Footnote 199 In addition, the federal government suspended funding to a researcher studying coronavirus, which is analogous to the work by the tobacco industry that lobbied to restrict funding to researchers who studied smoking.Footnote 200 Just like the tobacco industry, a lot of money is to be made through these deceptive practices.Footnote 201
The dietary supplement industry, which uses tactics very similar to the tobacco industry, is even closer to the anti-vaxx movement because it also promotes access to alternatives to modern medicine. Yet, the government does not substantiate safety and efficacy of such supplements.Footnote 202 The thriving supplement industry shows, however, that consumers appear not to accurately assess the risk corresponding to lack of oversight. Similarly, anti-vaxxers make millions providing unproven ‘alternatives to vaccines’—a term in quotes because there is no scientifically equivalent alternative to vaccines.Footnote 203 To accomplish this, those who benefit economically must either directly or indirectly promote anti-vaccine tales to create interest.Footnote 204 While it is possible that the sellers and manufacturers of alternatives believe in their product, it is certain they profit from it.
Regardless of motivation, the economics of such products creates an avenue to provide goods to individuals and an incentive to create a misperception of the risk of the vaccine preventable disease. Further, government messaging did not help matters with respect to individuals looking for alternative therapeutics. President Trump became interested in pseudo-oleander-based products, for example, which were touted by Mr. Lindell in August 2020.Footnote 205 It is not unreasonable to connect the susceptibility of individuals to ‘alternatives to vaccines’ from the messaging from leaders in the federal government.
D. Putting All the Variables Together
The above discussion demonstrates that different variables either individually or, more likely, collectively contribute to individual misperception of risk. The discussed modern variables—individualism, internet, and economics—are important components to understand decision-making as it relates to risk perception. These variables are likely strongly correlated and may provide targets for interventions to allow individuals to appropriately assign risk. Further research is needed to understand the strength of each variable as tested using decision-making theories.Footnote 206 For example researchers may ask: Do anti-vaxx groups use emotion or ambiguity in both promoting anti-vaccine propaganda and in selling their ‘alternatives to vaccination’? Can emotion be used to countenance this misinformation and misperception of risk? If so, how?
The problem is how to address these modern variables in a way that allows individual perception of risk to align with evidence-based assessment of risk. To be clear, this Article does not address the final decision; for example, whether to vaccinate or not. This Article addresses the perception of risk. Thus, an individual may appropriately assign risk to a COVID-19 vaccine, i.e., low risk and high benefit, but still choose not to vaccinate.
The normative answer posited in this Article is that the solution lies in the decision-making theories discussed in Part IV above. The anti-vaccine movement, which is larger than the COVID-19 crisis, uses the concepts from decision-making theories to obtain their results. The potential solution to this is to use the decision-making theories to provide information in a way that allows consumers to appropriately assign risk. To accomplish this, the variables of the individualism, internet, and economics must be part of that concerted effort and may provide possible points of interventions.Footnote 207
Overarchingly, the variables of individualism, internet, and economics, provided pathways for the anti-vaxx movement to take hold. First, the rise of individualism has led many to believe that personal liberty interest supersedes an obligation to the broader community. While a nuanced concept, this is a misperception of what liberty means. Liberty is not absolute. While the rise of individualism has some positive attributes, its negative externalities include individual responses to the COVID-19 pandemic and the anti-vaxx movement.
Second, the internet further made space for the anti-vaxx movement. While the access to information has many positive attributes, it is hardly contested that misinformation is a major contribution of the internet and the ease and speed of the internet allows for quick dissemination. The promoters of misinformation use emotion, ambiguity, quick thinking, and other decision-making theories to convey their misinformation. For example, conveying the completely false link between vaccines and autism. Even more specifically, the unfounded link between the COVID-19 vaccine and fertility. The promoters of false vaccine narratives also use emotion, the feelings of fear and dread, to convey their information. What if I give my child autism? What if I ruin my child’s fertility? What if I ruin my own fertility? These feelings of fear and dread lead people to inappropriately assign risk. The science does not support these associations, thus the risk of COVID-19 or any other vaccine preventable disease is the real risk; not the vaccine.
These false associations with vaccines also create ambiguity. The individual learns information from the internet about these purported risks of vaccines leading to autism or infertility and then they receive information that the vaccine is safe – these are conflicting pieces of information. Further, we know from studies analyzing vaccine hesitant parents that mixed messaging creates ambiguity and the parents inappropriately assign risk to the vaccine.Footnote 208 Similarly, if people read false information about links between vaccines and human ailments, this can become part of their quick thinking (type 1) response. When confronted with an opportunity to be vaccinated, they quickly draw to their mind the horrible story they read on the internet about someone who says they had a miscarriage as a result of being vaccinated. This quick thinking does not account for actual risk.
Third, there are underlying economic interests at play. There is an economic incentive to present information in a way that utilizes risk perception. Again, while words like ‘natural’ might elicit positive feelings, ‘vaccine’ may elicit a feeling of dread. The sellers of these so-called ‘alternatives to vaccines,’ can use emotion to sway consumers in their perceptions of risk and create ambiguity—why take the vaccine when a natural alternative exists? Or, such terms may elicit quick thinking; for example, when a consumer recalls reading about a natural alternative with no side effects compared to a vaccine that purportedly caused an ailment. Quick thinking lends itself to the so-called ‘alternative.’ Advertisers of these ‘alternatives to vaccines’ utilize these components in decision-making to sell their product.
Providing factual information to correct the misinformation is simply not enough.Footnote 209 The CDC website has space dedicated to debunking the false information about a link between the COVID-19 vaccine and miscarriages, but simply providing this information is clearly insufficient.Footnote 210 This is because decision-making is complicated. Even when provided with the factual information that corrects the misinformation, it is too late. Emotion, ambiguity, heuristics, and other theories explain why the individual is not able to appropriately assign risk.
Thus, risk-(mis)perception is a difficult problem to solve. One potential answer, as more fully described below, is to transparently utilize what we know about decision-making to provide information in a way that allows individuals to appropriately assign risk. Transparency is key.
VI. NORMATIVE FRAMEWORK FOR POLICY INTERVENTIONS
This Part proposes a normative framework to provide a roadmap for possible interventions. The overarching question is: How can governments provide information to individuals in a way that allows them to appropriately assign risk? This question is not concerned with the ultimate decision, i.e., whether to vaccinate or not, but is concerned with closing the gap between individual misperception of risk as compared to evidence-based assessment of risk to aid legal policy.
Notably, COVID-19 vaccine hesitancy was entirely predictable. Vaccine hesitancy, in general, has grown over the last few decades and corresponding legal policies are inadequate. While K-12 school mandates are effective; at the same time, data show that vaccine hesitancy is on the rise. This Article posits that unless we align individual perceptions of risk with evidence-based assessment of risk, our current strategies for legal policy implementation will be less and less effective. In other words, this Article aims to address the root cause of such hesitancy so legal policies have the best chance to obtain desired behavior. The specifics of COVID-19 vaccine hesitancy and policy lend itself to the root cause analysis, especially due to the missteps of the handling of the pandemic.
The empirically tested theories described in Part IV form the backbone of the framework. These theories, however, have not yet been used to answer the question presented in this Article, which is how to allow individuals to appropriately assign risk to the COVID-19 vaccine. This Article proposes utilizing what we know about decision-making and testing new variables: internet, economics, and individualism, to understand how they impact decision-making and how they can be used in a way that allows an individual to appropriately assign risk. Added to this is a discussion of possible interventions to allow individuals to appropriately assign risk.
A. Affect Heuristic and Possible Interventions
This Section asks if correct information can be provided in a way that changes an individual’s experiences of fear or dread (affect) regarding the vaccine-preventable disease such that the individual appropriately assigns risk to the disease, and correspondingly, the vaccine.Footnote 211 One could approach this question in a number of ways, using the modern variables of the internet, economics, and individualism.
The variable of the internet is associated with the affect heuristic because anti-vaxxers use emotion to promote misinformation on the internet. Thus, one approach could be to expose the misinformation on the internet as misinformation and communicate to individuals how the providers of misinformation are using emotion or affect to elicit feelings of fear and dread.Footnote 212 Another way is to provide correct information in a way that utilizes emotion. One suggestion is to draw from the anti-smoking campaigns that show very sick people dying from smoking. Some data suggests that this might work with vaccines.Footnote 213
The variable of economics can also be associated with the affect heuristic. The promoters of ‘alternatives to vaccines’ might utilize dread to scare people about the effects of vaccines and then elicit emotions of happiness that alternatives exist and they can purchase these so-called alternatives. Again, this variable can be approached in different ways. One possible intervention is to expose how a promoter of ‘alternatives to vaccines’ is manipulating the consumer. Alternatively, eliciting feelings of dread and fear by exposing how the ‘alternatives to vaccines’ are ineffective, may also impact how individuals assign risk.
The variable of individualism, likewise, is associated with the affect heuristic. Promoters of anti-vaxx misinformation and ‘alternatives to vaccines’ may lend itself to the feeling that people need to take care of themselves, without fully appreciating how their decisions impact their community. Their personal feeling of fear or dread may overshadow the ability to think about the impact on the community-at-large.Footnote 214 Interventions can be crafted to utilize the role of emotions in how individuals feel about their role in a community—either the fear of being a bad actor within the community or the good feeling of participating in an activity that promotes the health of the community.
For COVID-19 vaccine hesitancy, the acts of government officials—like attitudes and claims that young people are immune, encouragement to attend rallies, and statements that the increasing numbers of cases were due to increased testing and that the virus will disappear—created specific instances to help researchers understand COVID-19 vaccine hesitancy. This research should focus on how interventions can influence the affective response such that individuals appropriately assign risk.
B. Ambiguity Aversion and Possible Interventions
Ambiguity aversion can also be utilized for intervention. The internet and economic variables create ambiguity aversion through the presentation of conflicting information. If an individual receives conflicting information, then they may experience ambiguity aversion. Even if they later receive correct information, the individual is impacted by the original information. Interventions should focus on preventing false information because it impacts the individual’s ability to discount false information.
The variable of individualism may also be important. The government’s messaging about the pandemic created conflicting information. On the one hand, government officials instituted lock downs, masking requirements, and closed schools. On the other hand, government officials communicated that the virus would disappear and that young people are immune. This created conflicting, ambiguous information about the risk of COVID-19, discounted the concern about community spread and influenced individual risk assessment. Interventions should focus on clear, consistent messaging.
C. Cultural Cognition and Possible Interventions
Interventions utilizing cultural cognition should focus on the messaging, that is, the messaging should speak to the group with which the individual aligns. Participation on the internet allows for the creation of communities that support their world view. Interventions should therefore be mindful of the audience their information is expected to reach on the internet—similar to how those with economic gain target ads. As explained by Kahan, information must be provided in a way that affirms the individual’s cultural identity.Footnote 215
The variable of individualism is already baked into the cultural cognition theory. One study found that individuals with “strong individualistic/hierarchical worldviews” had antivaccination attitudes.Footnote 216 This study analyzed vaccine hesitancy prior to the COVID-19 pandemic, thus recognizing that vaccine hesitancy was a problem prior to COVID-19 and trying to understand the root causes remains critically important.Footnote 217 Such information can inform messaging to certain groups.
Understanding how different communities responded to the missteps of federal, state, and local messaging will be important to create interventions that allow individuals to appropriately assign risk to the COVID-19 vaccine.
D. Heuristics/Dual Process and Possible Interventions
Heuristics and Dual Process Theory can also inform interventions. The internet might be a gold mine of psychological manipulation that biases individuals and impacts their type 1 thinking. For example, (false) stories linking vaccines to terrible outcomes can anchor individuals and the stories will be considered when faced with a decision to vaccinate or not. Undoing these biases and/or challenging individuals to move into type 2 thinking poses barriers to implementation. Even determining what information created the bias in the first place is challenging, although it is reasonable to postulate that the mishandling of the pandemic contributes to risk perception of the vaccine preventable disease. Interventions aimed at exposing how biases are created and impact subsequent decisions may prove useful.
The variable of economics similarly can anchor people to ‘alternatives to vaccines’ as a safe and natural approach compared to the purported harms of vaccination. Another way to approach this is to anchor people to the harms of not being vaccinated and manipulate the quick thinking in a way that allows individuals to appropriately assign risk.
The variable of individualism may also lend itself to heuristics and dual process thinking. If individuals believe that the decision to vaccinate only impacts themselves, then their bias is focused on their autonomy, without completely comprehending the impact on the community. Anchoring people to the problems with community spread of vaccine preventable diseases might allow individuals to appropriately assign risk.
Plausibly, the missteps by the federal government, described in Part II, created biases about the risks posed by COVID-19. Understanding these biases, and using the variables as possible points of interventions, may allow the biases to shift so that individuals can appropriately assign risk.
E. Tying This in to the COVID-19 Vaccines
It is crucial to understand and address vaccine-hesitancy because the COVID-19 vaccines are the most effective solution to the current pandemic.Footnote 218 The above suggestions are descriptive. This Article provides a normative framework to provide the basis for future work. The psychological dimension of decision-making cannot be ignored as we have seen how poorly individuals responded to the science in the COVID-19 pandemic. Decades of anti-vaccine advocacy is underscoring the difficulty of slowing the spread of COVID-19. While this Article is focused on vaccine hesitancy, it should be noted that many millions of people are vaccinated against COVID-19 and thus understand the safety and efficacy of vaccines.
Recent studies analyzing vaccine hesitancy, in general, focus on the impact of social media.Footnote 219 This literature suggests that an intervention, as described above, could be to utilize social media as a way to influence decision-making. Put differently, can policymakers use the problem as the solution? This approach can be empirically tested to determine if communicating information via social media decreases the role of individualism, misinformation, or economic interests as it relates to perceptions of risk. If, for example, information can be communicated in a way that decreases a person’s individualistic attitude, then that person might more accurately assign risk and be more likely to receive a vaccine. Solving the (mis)perception of risk must be a primary goal for any regulatory policy to be easily implemented.
With the COVID-19 vaccine, an added layer of the novelty of the mRNA technology, described in Part III, provides fodder for exploitation of the psychological dimension of risk perception. From a scientific perspective, the mRNA vaccine ultimately leads to the same results as traditional vaccines; the scientific novelty is the ability to harness and preserve mRNA for delivery to the individual.Footnote 220
The explosion of the internet and social media, the politicization of non-pharmaceutical interventions and charlatans seeking to profit from ‘alternatives,’ and the rise of individualism created a perfect storm to undermine the scientific solutions to the COVID-19 pandemic. This psychological response can be addressed. This Article suggests utilizing well-known decision-making theories and incorporating the variables discussed above as a way to align individual perception of risk with evidence-based assessment of risk. The next step is testing possible intervention(s) and determining which intervention(s) will accomplish the goal of closing the disconnect between individual (mis)perception of risk with evidence-based assessment of risk.
VII. CONCLUSION
This Article addresses the question of how to align an individual’s perception of risk with evidence-based assessment of risk, using the COVID-19 vaccine and hesitancy as an example. Importantly, the spread of misinformation and a failure to provide a coordinated and science-based approach of containment created a perfect storm to showcase the psychological dimension of risk perception. The overview of the timeline of events, presented in Part II requires further forensic evaluation and reflection. Since we are in the middle of the global pandemic, much of this autopsy will need to occur in the future. Cataloging these events, however, has important utility in and of itself.
The public’s response in the U.S. contributed to the continued spread of death and disease. This Article seeks to understand and evaluate how this came to be utilizing decision-making theories, incorporating variables, and providing a normative framework to propose interventions to change the trajectory of future legal policy responses to pandemics and other critical issues that require an individual’s perception of risk to align with evidence-based assessment of risk.
