The news that staying at home and other forms of social distancing may be flattening the curve of the deadly covid-19 outbreak has led to growing calls to rescind these public health edicts. For example, the top-ranking Republican in the Minnesota state legislature has announced his opposition to Gov. Tim Walz’s (D) order that citizens continue to shelter at home until at least May 4. Meanwhile, there are rumors that President Trump might fire National Institute of Allergy and Infectious Diseases Director Anthony S. Fauci, who has expressed concerns about relaxing restrictions too quickly, fanned in part by Trump retweeting a tweet with the hashtag #FireFauci on Sunday. On Monday, however, Trump rebutted claims he planned to fire the doctor and called Fauci, a “wonderful guy.”
To be sure, these opinions reflect a growing concern about the ongoing stagnation of the American economy. But they also build on a long history of resistance to public health measures that some argue violate the freedom at the core of the American system of governance.
To understand the history of past disagreements with public health mandates, one need look no further than the United States’ founding in direct opposition to the tyrannical monarchy of England. The Declaration of Independence characterizes life, liberty and the pursuit of happiness as “unalienable rights,” something that opponents of public health measures would later build upon.
Yet, this did not mean that the Founders opposed all restrictions on freedom. In fact, political leaders across the ideological spectrum supported government-mandated public health measures. During the colonial period, in which infectious diseases such as smallpox, malaria and yellow fever were rampant, bipartisan efforts to stem outbreaks included passage of the first federal health law, the 1798 establishment of the Marine Hospital Service. The service, which established a series of hospitals to care for sick seamen, was the forerunner of today’s Department of Health and Human Services.
However, opposition to public health practices that infringed upon individual freedoms emerged in the late 19th century from a group — known as the “libertarian radicals” — who defied growing mandates to vaccinate Americans for smallpox. As the historian Michael Willrich has written, they also opposed the Comstock laws that labeled contraceptives as obscene and banned their distribution across state lines. And they would later oppose the state-run eugenics movement of the early 1900s that promoted the involuntary sterilization of so-called feebleminded women. These criticisms proved prescient as birth control was eventually legalized and eugenics rejected as coercive and discriminatory.
Lora Little, a New York woman who was convinced that a smallpox vaccination had led to a series of other infections that killed her only child, was a prominent anti-vaccine advocate. In her 1906 book, “Crimes of the Cowpox Ring,” she amassed hundreds of similar cases of children who had gotten very ill or died after being vaccinated. To Little and her followers, such “state medicine” violated the basic principle of American liberty as exemplified in John Stuart Mill’s famous quote: “Over himself, over his own body and mind, the individual is sovereign.” That is, the government had no right to inject a foreign substance into healthy children if their parents disagreed.
By 1905, the smallpox debate had made it to the Supreme Court, which decided in Jacobson v. Massachusetts that the Constitution did not provide an absolute right for Americans to be wholly freed from limits. “There are manifold restraints,” the court wrote, “to which every person is necessarily subject for the common good.”
Since then, health departments have used this ruling to justify any number of public health initiatives, ranging from the fluoridation of water to the vaccinations that children must take to attend public school. In general, the more dangerous the situation, the more leeway that health officials have to insist on certain behaviors. For example, when public education campaigns in the 1980s were unsuccessful in encouraging the use of seat belts, states passed laws that mandated them.
But, well-meaning officials can also abuse their powers. In the decades following World War II, for example, doctors in Seattle sought to restrict noncompliant alcoholics with tuberculosis who were at risk of spreading the drug-resistant disease throughout the community. In so doing, however, the doctors disregarded the city’s public health regulations and simply detained these men in locked wards until they were cured. Writing to the American Civil Liberties Union, one such patient justifiably asked: “We want to know by what right, and on what authority this is being done.” Such complaints went largely unheeded.
More recently, libertarians have criticized strategies to decrease drunken driving. Efforts to identify mostly harmless “buzzed” drivers through interventions such as sobriety checkpoints and lowering the legal blood alcohol level, these writers argue, actually deflect resources from identifying drivers who truly cause harm, by actually being drunk, texting while driving or otherwise driving recklessly. Although states have proved reluctant to ease drunken driving laws, such arguments appropriately challenge public health dogma.
The covid-19 outbreak has led to both federal and state calls for people to stay home and practice social distancing when in public. In addition, the CDC has recently told Americans to wear masks when outside of the house and potentially within six feet of other individuals.
Yet, as we have seen, such advice is often being ignored. Governors in states that are relatively unaffected by the virus continue to allow exceptions to social distancing, such as permitting religious gatherings. So-called Covidiots hold parties and other group events, although some are now being arrested. Conservative television host Laura Ingraham recently tweeted a photograph of police officers forcibly removing a man from a beach, coupled with a pro-libertarian quote from Benjamin Franklin: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”
So how should we judge this defiance of public health orders? Historically, libertarianism has reminded both government officials and average Americans that public health edicts may be excessive and arbitrary. But such warnings should hold much less weight during the covid-19 pandemic. It’s one thing to criticize public health overreach for a chronic problem, but quite another to defy reasonable — if annoying — efforts to control a disease that may kill hundreds of thousands of Americans in the next six to 12 months. Bad behaviors do not just put the offender at risk, but also anyone else he or she subsequently comes into contact with, not to mention others who may need medical care.
So let’s honor the “manifold restraints” being established to fight covid-19. There will be plenty of opportunities to defy the government once this terrible crisis is over.
Originally published on Washingtonpost.com on April 14th, 2020.