As the super-contagious Delta variant of Covid rips across the country, in no small part due to the behavior of the millions of Americans who have so far chosen to remain unvaccinated, the question of whether to make jabs mandatory is becoming urgent. A lot of libertarians are still voicing opposition. What gives?
An expanding list of employers, universities, and businesses are now requiring vaccines and stipulating that those who remain unvaccinated undergo testing and other protocols, such as masking. As many as seven million federal workers have to show proof of vaccination or be tested weekly and wear masks. Defense Secretary Austin is indicating that will soon hold for the armed forces and military employees. North Carolina, New York, and California are asking the same of their state employees.
As of August 9, United Airlines, Tyson Foods, and Microsoft have mandated vaccines for workers, as have 1,500 health systems. The second largest U.S. teachers’ union has also indicated that all teachers should be vaccinated to protect children. If you’re a student wanting to attend classes in-person this fall, you’ll need to roll up your sleeve and get vaccinated at over 500 colleges and universities, including several large state systems.
On August 3, New York City became the first big city in the country to require proof of vaccination at restaurants, gyms, and other businesses – though the verification system has proven buggy and easy to manipulate.
All this has many libertarians in a tizzy.
Libertarians, known for their free-market ideology and promotion of an idiosyncratic concept of individual liberty, are split badly on the issues. Some, especially in academia, are unwilling to ride on theoretical magic carpets that don’t go very far in the real world when it comes to Covid. This group supports mandatory vaccines, admitting that it’s not really okay to infringe upon the freedom of others to remain alive and healthy. But many, especially the activist anti-vaxxers and their enablers in the political sphere, argue vociferously against vaccine requirements no matter what the consequences to others. Even if that consequence is death.
These zealots shout: “My body, my decision!” But when it comes to your body and your risks, apparently that’s your problem. People like babies and kids, vulnerable to Covid because they aren’t eligible for vaccines (currently filling up children’s hospitals in many parts of the country), and the immunocompromised, which includes cancer patients, people with diabetes, and pregnant women, are supposed to take all risks of exposure on the chin, including those created by recalcitrant caregivers. At hospitals still without mandates, a person undergoing chemotherapy is expected to accept being surrounded by unvaccinated medical workers whose choices put them in constant mortal danger.
Governor Chris Sununu of New Hampshire, a Republican, just signed one of the “medical freedom” bills currently circulating, which grandly asserts that people have a “natural, essential and inherent right to bodily integrity, free from any threat or compulsion by government to accept an immunization.” Tellingly, it doesn’t address state laws compelling children to receive various vaccines in order to attend school. That’s because the citizens of New Hampshire are unwilling to let deadly diseases like measles and polio tear through their classrooms and disable or kill their kids. Some states allow controversial exceptions to this mandate, such as religious objections, but you don’t get out of the requirement by making speeches about bodily integrity.
Let’s be clear: Americans have all kinds of awesome rights as individuals. In the majority of cases, you get to decide what risks to take with your own life and property. If you’d like to win the Darwin Award and try to jet ski off Niagra Falls, you can do that.
But you aren’t free to subject others to deadly harm. You’re not allowed to drive your Corvette at 100 mph and spin donuts on the freeway, because you might hurt somebody. You don’t get to fire your AK 47 into the air at a Fourth of July picnic. And you won’t be lighting up a Marlboro on an airplane. Your personal liberty, in such cases, is curtailed in order to ensure the safety of others.
You may not like it, but the Supreme Court has supported intrusions on your body in a number of cases in the name of public and individual safety. These include things like blood alcohol testing and strip and body cavity searches. If you are having a psychotic breakdown and you are a criminal defendant, the state can force you to take medication to make you competent to stand trial.
For quite some time, American law has been clear that the bodily intrusion of mandatory vaccinations is necessary in order to shield citizens from harm.
In 1905, in Jacobson v. Massachusetts, the Supreme Court explained that people living in a civil society have obligations to protect one another from dangerous diseases: “In every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
In that particular case, Cambridge pastor Henning Jacobson had argued that he and his kids had experienced a bad reaction to prior vaccines and so should be given an exemption, but the Court said that he had no proof and would not be getting a pass. As a citizen and a parent, he wasn’t permitted to expose anyone, including his own kid or anybody else’s, to smallpox, which was raging at the time. The Court sent the message that your individual liberty is never absolute and can be subject to the police power of the state.
There is a teeny tiny risk in taking a vaccine for a disease like Covid, though it is far less of a risk than contracting the disease itself. But there are vastly more risky things a citizen can be required to do for what is determined to be the greater good.
Take national defense. Libertarians get uncomfortable on this subject, and many like to pretend that you can rely on volunteers to get the job done. Reality check: Though it’s been almost a half-century since Americans were drafted into military service, the fact is that conscription has been necessary for every major war. Yes, it’s often possible to find enough people to volunteer for military service during peacetime, at least if you pay them, but people are generally unenthusiastic about getting maimed or killed during wartime.
During the U.S. Civil War, trying to get anyone to fight was a nightmare. Wealthy people were paying poor people to be cannon fodder in their place. In 1863, New York City erupted in a 4-day deadly riot because people opposed the Civil War draft law which allowed rich men like J.P. Morgan and Andrew Carnegie to pay off substitutes. That racially charged riot, which saw whites attacking blacks throughout the city, was one of the bloodiest in U.S. history.
Certainly, you can argue that the U.S. conscription system is sexist and arbitrary because it only pertains to young men. But the fact is, when American men turn 18, the federal government requires them to register for the Selective Service. Doing so is a prerequisite for things like obtaining student loans or being hired for a federal job, and 41 states make it part of getting a driver’s license. Failure to register is a felony offense.
In a 1918 opinion, the Supreme Court equated Congress’s constitutional power to “raise and support armies” with the authority to force citizens into service.
The government appeals to fairness in stating why registration is necessary: “Selective Service’s mission is to register virtually all men residing in the United States. If a draft is ever needed, the process must be fair, and that fairness depends on having all eligible men register. In the event of a draft, for every man who fails to register, another man would be required to take his place in service to his country.”
Recently, Minnesota Vikings quarterback Kirk Cousins, who presumably has registered for Selective Service, decided to refuse to be vaccinated for Covid. He states that he is willing surround himself with plexiglass in the team’s quarterback room in order to avoid getting jabbed. Unfortunately, there’s not much evidence that plexiglass barriers prevent the spread of Covid, because the aerosol particles move through the air like cigarette smoke. Therein lies the problem. There’s really no way to seal yourself off from your fellow citizens unless you live alone in quarantine. And the frequency of asymptomatic transmission means you can’t tell whether many people near you have the disease or not.
Even when the unvaccinated receive weekly testing, it’s still not enough to protect other people, because the virus spreads exponentially, which means that it proliferates in much shorter periods of time. This is particularly concerning in medical facilities, where testing unvaccinated workers once a week risks exposing immunocompromised people to life-threatening conditions. The same goes for nursing homes.
The issue of twice-a-week testing opens yet another can of libertarian worms. Who is expected to pay the hundreds of dollars a week that multiple tests of the unvaccinated will cost in the case, say, of government workers or state university students? The taxpayers? Oh really? Among some libertarians, taxation is regarded as theft. Would they agree that the cancer patient can be taxed to support the constant testing of medical workers whose behavior threatens her life? Let’s ask Senators Ted Cruz and Rand Paul about that.
According to Larry Brilliant, a prominent epidemiologist and part of the WHO team that helped eradicate smallpox, the Covid pandemic is nowhere near over, and the Delta variant may be “the most contagious virus ever seen.” He believes that the likelihood of more variants arising due to lack of vaccinations is high, and there is even a possibility of a “super variant” emerging that vaccines don’t work against. This possibility is currently low, he explains, but we must do everything possible to prevent it now. That means jabs for the unvaccinated ASAP.
John Stuart Mill, a philosopher oft cited by libertarians, wrote in 1859 about the “harm principle,” which holds that the state can restrict the actions of individuals to prevent harm to others: “The liberty of the individual must be … limited: he must not make himself a nuisance to other people … the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant, and … in the part, which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”
Clearly, people electing to remain unvaccinated are violating Mill’s harm principle.
Committing suicide by virus is one thing, but inflicting mortal harm on others is another. If libertarians wish to maintain their self-centered fixation on their own freedoms without considering how their behavior injures others, let them do so — in indefinite quarantine from the rest of us.