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Current Affairs

A Magazine of Politics and Culture

Why Vaccine Mandates Do Not Infringe on Liberty

You are not guaranteed the freedom to spread a deadly virus.

“You don’t tell us what to put in our bodies! You either believe in individual liberty and freedom or you don’t. Body sovereignty. You have sovereignty over your own body.” Dan Bongino, Fox News

Many on the right argue that policies requiring people to get vaccinated, whether as a condition of employment or entering a business establishment, are infringements on people’s personal freedom. The Attorney General of Missouri, in announcing a lawsuit by multiple states opposing the Biden administration’s vaccine mandate for federal contractors, said the mandate “would trample upon liberty.” The Arizona attorney general has called the mandate “one of the greatest infringements upon individual liberty…by any administration in our country’s history.” 

Rep. Madison Cawthorn has introduced a bill called the “Justice for All Businesses (JAB) Act,” which would “prohibit the Secretary of Labor from enforcing any government mandate requiring employees to receive the COVID-19 vaccine.” Cawthorn says that it is “not a matter of health, it’s a matter of liberty” because “forced injections mandated by the federal government are nothing short of subsidized medical apartheid.” 

Right-wingers are not the only ones arguing that vaccine mandates are problematic. When Noam Chomsky suggested that people who refuse to get the vaccine ought to isolate themselves, Grayzone editor Max Blumenthal said it was a “call for the state to segregate The Unvaccinated from society.” Marxist economist Richard Wolff has suggested (falsely) that the recent wave of strikes in the United States has occurred because vaccine and mask mandates by employers have “become intolerable for employees.” Contrarian YouTuber Jimmy Dore appeared sympathetic to the anti-mandate movement when he said that “anti-mandate is not anti-vax.” 

The argument made here is that regardless of whether you think one ought to be vaccinated, coercing people to get vaccinated is morally wrong, because it violates their freedom of choice. This is fairly easy to understand: I can believe that people ought to eat vegetables without believing they ought to be fired or forcibly separated from society for deciding not to. Freedom means that people get to make choices we do not like. Fox’s Dan Bongino, quoted at the outset, stresses that one’s position on vaccines is separate from one’s position on mandating them. Or, as a Twitter user called “Conservative Momma” put it, “you can be for the vaccine and completely oppose vaccine mandates—that is if you believe in bodily autonomy, individual liberty and freedom.”

This argument may seem  sensible. There may be things that would be good for us to do, but that the government should still not make us do. But the argument overlooks one important fact, which is that “the freedom to make choices that may directly result in the deaths of other people” may differ in critical ways from other freedoms like “the freedom to choose between chocolate and vanilla ice cream.” 

The “harm principle” articulated by John Stuart Mill in On Liberty, which has come to be foundational to libertarianism, states that our freedom can only be restricted in order to prevent us from doing harm to others. In other words, I am free to do as I like so long as I am not inhibiting other people’s ability to do as they like. Libertarians often interpret this to mean that the government’s role is very limited: government is allowed to stop you from stealing and murdering, but a lot of other behavior (such as exploitation, greed, lying) should be permissible. One libertarian manifesto sums up the basic idea in its title, Don’t Hurt People and Don’t Take Their Stuff. As long as people aren’t causing physical harm or violating property rights, you shouldn’t interfere with them. (Yes, this usually turns into a justification for letting billionaires hoard wealth.) 

But under the basic libertarian framework, preventing people from causing deaths falls squarely into the category of things that government is allowed to do. Freedom means that you are allowed to do the things that do not result in harm to those around you. But during a pandemic, spreading an airborne virus that will continue to kill millions if it is not contained is clearly something that does cause harm to people. Not only could you infect someone and cause their suffering and death, but further spreading the virus creates countless downstream effects, like contributing to the overwhelming of hospital resources (which causes harm to those who then cannot get treated for non-COVID conditions). Preventing you from infecting someone with a dangerous virus is an attempt to stop you from infringing on their liberty.1 If you knowingly take the risk of killing someone, say by walking into a nursing home without having been vaccinated against a contagious virus that could kill the people there, you are the threat to freedom, just as a murderer is violating the basic rights of the person they murder. 

Let us imagine a pandemic somewhat more severe than COVID-19. Let us imagine a plague, in which anyone within six feet of an infected person is guaranteed to catch the disease and die. Does an infected person have the right to go wherever they please? No. Because there is no reason why their right to free movement should trump everybody else’s right to life. This is especially the case if there are things that a person could do (such as obtain a vaccine or wear a mask) to reduce the risk they pose to other people. If someone was a sufficiently deadly threat to other people, it would be legitimate to isolate them in order to protect the rights of others, and it would certainly be legitimate to place conditions on their interactions with others (if you wish to exercise your guaranteed right to movement, you must take a measure that ensures other people will not have their own right to life violated unnecessarily by you). 

What about the right that Bongino speaks of, the right to “bodily autonomy”? Some people say that the government should not tell you what you have to put in your body, and that this is an absolute right. That is indeed the case; if the government strapped you down and forcibly injected you with a vaccine, that would be wrong. But what we are talking about when we talk about vaccine mandates is a conditional requirement, a requirement that is imposed on you if you wish to do certain things.

For example: there was recently a protest by employees at a health center here in Louisiana against a mandate requiring “all physicians, providers, and employees to be fully vaccinated.” One protester said that “it is about the freedom to choose. We are standing for freedom and against the [vaccine] mandate.” But they do have the freedom to choose. They could choose to work at a health center, in which case they will have to agree to take measures to make sure they don’t put the people they work with at risk. Or they could choose not to work at a health center. If you choose to join the Air Force, you can be required to do jumping jacks and have a physical. (You will also have to get certain immunizations and submit to necessary medical treatment.) This might be said to violate your “bodily autonomy.” But the violation is conditional on the choice to join.

AP Images

In fact, many right-wing arguments about violations of “personal freedom” do not recognize the crucial fact that the “violations” are conditional on choices. For instance, many on the right object to requirements that bakers create wedding cakes for all customers. They say that this is “forcing people to bake cakes,” as if the government has shown up at a random person’s house and turned them into a pastry chef at gunpoint. In fact, the requirement is conditional: if you choose to open a public-facing establishment, and wish for the government to enforce your property rights, you must agree to serve everybody and not discriminate. Likewise, some conservatives object to job contracts that require union membership, saying that this is “forcing people to join unions.” At the same time, conservatives are big fans of “right to work” laws that prohibit this kind of contract, in the name of “freedom.”

But it’s worth pointing out that right-wing objections to workplace mandates are usually made inconsistently. Employers require all kinds of things of employees. They can make you wear a uniform. They can make you take a drug test. They can make you treat your boss with deference. Why is “making you join a union” singled out as uniquely coercive? “Freedom of contract” means that you are given a choice: if you do not like the terms that are offered to you, you can go somewhere else where the terms are different. 

Of course, leftists are critical of this notion of “freedom of contract,” and do believe certain employment terms can be coercive. But the question then becomes: which kinds of requirements are legitimate as conditions of employment, and which cross the boundary into violations of people’s dignity and freedom? However we come down on that, the kinds of requirements that do not seem to be violations of personal freedom are those that have been determined safe and that simply involve protecting the health and welfare of everybody else, i.e. keeping you from killing people. Vaccine mandates say: if you wish to be around others, you must take reasonable steps not to hurt them. A vaccine, despite being something you “put in your body,” is a reasonable step, and your right to sovereignty does not entitle you to risk violating other people’s sovereignty by putting something in their bodies (coronavirus). 

We should always prefer the least restrictive means of guaranteeing basic freedom. This is why, when Chomsky was asked about vaccine mandates, he stressed that we should primarily be trying to create a social norm of taking the vaccine, rather than using the coercive power of the state (Chomsky has anarchist political leanings): 

“I think people who refuse to accept vaccines, I think the right response for them is not to force them to, but rather to insist that they be isolated. If people decide “I am willing to be a danger to the community by refusing the vaccine,” they should also say “I have the decency to isolate myself. I don’t want the vaccine, but I don’t have the right to run around harming people.” That should be a convention. Enforcing is a different question. It should be understood, and we should get it to be understood. If it really gets to the point where they are severely endangering people, then of course you have to do something about it. So if smallpox becomes rampant again and some people are insisting on running around in public places where they might have smallpox, then you’ve got to do something about it. We’re not in quite that situation but I think it’s a similar one. So I think you should first attempt to establish conventions that will be understandable by people with some moral capacity, convince them that it’s your right to refuse to get a vaccine, but then it’s your responsibility to isolate yourself so you don’t harm others.”

Chomsky compared it to people who insist on running red lights, because they don’t think the government has the right to tell them to stop at a traffic signal. People who don’t want to obey traffic laws are putting others in danger,  so they shouldn’t drive. If they become enough of a threat to public safety, they may need to be stopped by force. 

Some believed Chomsky was an authoritarian for these remarks. Libertarian commentator Dave Rubin said that Chomsky was a “truly disgusting human being” who had revealed the “evil nature which lays just beneath every oh-so-tolerant progressive.” 

But Chomsky’s argument seems completely unobjectionable to me, and it’s telling that instead of refuting it, Rubin simply resorts to words like evil and disgusting. If someone does not want to take the vaccine, it’s their right, but they should not expose others to the harmful consequences of their decision. And it’s the right of others to exclude people whose choices are causing harm. One can describe isolation of an unvaccinated person as “segregation” if one is being as inflammatory as possible (someone even said Chomsky was calling for “concentration camps”). But the need for people at high risk of spreading COVID-19 to isolate themselves seems to follow from the basic recognition that spreading a virus that can cause terrible disease is not something people have an inherent right to do.

The natural response will be to say something like “Well, colds kill people, should you not be able to go out if you have a cold?” And the answer is, well, first, if I’m sick with a cold I do tend to isolate myself, so that I don’t make people sick. But the conditions that can be imposed on a sick person increase relative to the threat posed. Chomsky invoked smallpox as an example of a situation where the state really would have to get tough about not letting people infect others. If we had a new plague of sufficient deadliness, a lot of restrictions on what people could do would be justified, because otherwise none of us would be free. COVID-19 is an in-between case, which means that the measures justified are relatively moderate: here in New Orleans, if I want to go to the gym, I have to show proof of vaccination, so that I am less likely toinfect fellow gym-goers, but I am free to bike through the city without showing proof of vaccination, because that doesn’t pose much of a risk. 

There is a kind of mindless pro-“freedom” rhetoric that I refer to as “reflexive libertarianism” because it reacts angrily to perceived violations of individual liberty without thinking seriously about what freedom really is. For instance, mindless defenders of property rights will see any attempt to tax and redistribute wealth as a violation of their “freedom,” even though their property rights may themselves have come from an abridgment of other people’s freedom. (This is why an intelligent libertarian, philosopher Robert Nozick, acknowledged that consistent libertarianism may require reparations to the descendants of slaves or grants of land to Native Americans. Taking property rights seriously requires massive reparations for climate change and may even require the abolition of capitalism.) People who have this kind of unthinking libertarianism may be surprised when the ACLU declines to oppose vaccine mandates—and will see it as yet another sign that the ACLU has become a partisan defender of Democratic policies rather than a principled defender of liberty. But they haven’t thought seriously about the real liberty questions here, and the ACLU has. What looks like a demand for freedom, the right to go around infecting people, is in fact a demand to be allowed to violate the freedom of others. A consistent civil libertarian not only can, but should, support vaccine requirements as a condition of certain kinds of participation in public life. 

  1. Of course, both vaccinated and unvaccinated people may spread the virus. But vaccination does significantly reduce the spread of the virus and shortens the period in which an infected person is contagious. Of course, vaccination does not obviate the need for other precautions such as masking. 

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