by Bruce Basson
The question of what government does to protect our rights during a pandemic is likely to come up again and again as world population increases and pandemics become more common.
First off, no rational adult can be forced to take a medication or undergo a medical procedure without consent. When someone is underage or irrational, another person may make medical decisions for them, but even then it is not the government making the decision but a relative or caretaker. Government cannot force anyone to take a vaccine because individuals have the right to make their own personal medical decisions no matter what anyone else thinks of them.
A second point is that businesses can set requirements both on their customers and their employees. If a business wants to only serve customer wearing masks or employ people who have been vaccinated – so be it. They are free to do so. This is again not a government decision.
So when a menacing disease takes hold and spreads throughout the population, what should government do?
The best way to frame this is as an attack on the people of the United States. Something is killing us – maybe the elderly, maybe those who have commodities – who is dying doesn’t matter. Government never should restrict our freedoms except to protect rights, but when people are infecting each other with a contagion, we have to remember this principle:
*** Do as you please as long as you don’t harm, impose on, or place others at risk without their consent. ***
Simply put, no one has a right to spread disease.
Now some might object, “Well, we don’t know we are infectious.” Actually that doesn’t matter. Just because we aren’t aware doesn’t make putting others at risk OK. Or someone might say, “There are all kinds of diseases out there. How can I live without EVER getting someone else sick?” Sure, we live with many diseases that can cause death – influenza, UTIs, etc. We all accept a background level of risk that arises just from living.
The difference during a pandemic is that the level of risk is demonstrably, unusually high. It is easy to look at ‘Weekly All Cause Mortality’ for the United States (https://www.cdc.gov/nchs/nvss/vsrr/covid19/excess_deaths.htm) and see that COVID-19 is not a seasonal flu.
Knowing that we have an obligation not to place one another at excessive risk, most responsible people will take recommended steps without government mandates. We will wear masks, distance, avoid crowds, quarantine appropriately, and take safe and effective vaccines when they become available. We don’t want to be the person who spreads a disease that kills someone else.
Sadly, not everyone will act responsibly.
So what should government, that agency charged with national defense and managing public space, do to protect our right not to be placed at risk without our consent?
Government can’t make us take a vaccine. We never allow government to make personal medical decisions.
But government can require that we behave ourselves in the public space, either by wearing masks or even avoiding public space or public gatherings through quarantines to prevent us from harming one another.
In private, where we have consented to the risks, we may do as we please. If I go to a private home, I can ask “Has everyone been vaccinated? Will everyone wear masks?” And if the answer is no, I can decide whether or not to take the risk. If I proceed, then I consent to any risks posed thereby.
Government doesn’t normally regulate what happens in the private space, but when someone elevates the risk of all those around him, government does step in - someone who builds a bomb or purifies ricin or raises venomous snakes in their apartment, for instance. Bringing large groups of unprotected people closely together in a restaurant or cinema or home effectively creates a transmission “bomb” that raises the risk of infection to many others, and so government may reasonably restrict that activity. This may mean economic hardship for some – and the answer to that is act quickly and decisively so that the hardship lasts for as short a time as possible. The US didn’t do that but some other countries did.
Government cannot force individuals into medical decisions, but it can mandate not placing one another at risk without consent.