How much leeway should government have to quarantine you; medicate you; experiment on you; control your home, water and diet — all in the name of protecting your health and the well-being of those around you?
How do we define specific, coherent limits to such government authority?
This column raises questions but purposely avoids offering answers. The questions are on my mind since returning from a small, intense conference (sponsored by the nonprofit Liberty Fund foundation) on the tense interplay between public health and public policy. For me, the conference did what such events should do — namely, to raise more questions than answers.
Topics included sanitary conditions in 19th century Britain; the discovery that cholera was water-borne; mandatory smallpox vaccination; the 1918-1920 Spanish flu pandemic; the infamous Tuskegee Experiment; mandatory eugenic sterilization; and the shift of public health from communicable diseases to chronic conditions (like obesity).
The event — planned months in advance — couldn’t have been more timely. The coronavirus outbreak in China and quarantining of millions made dusty old debates terrifyingly contemporary.
We can identify polar extremes in the debate over the limits of government authority. A polar libertarian might argue that governments ought not have much, if any, authority to impose mandates on individuals. A polar utilitarian might hold that governmental power should be virtually limitless in pursuing public welfare.
Most of us (including all conference attendees, so far as I could tell) fall somewhere in between. It’s possible, for example, to favor mandatory vaccination against smallpox, measles and other communicable diseases while steadfastly opposing broader interpretations of such power.
In my column some weeks back, I noted that some of the most infamous words ever issued by the U.S. Supreme Court slid down that very slope in 1927, giving states broad authority to forcibly sterilize “undesirable” citizens.
“It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind,” wrote Justice Oliver Wendell Holmes. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”
The utilitarian correctly notes that unvaccinated individuals pose physical danger to infants, people with compromised immune systems and others. The libertarian correctly notes that mandatory vaccination opens the door for the sort of abuses that Justice Holmes countenanced (70,000 forcibly sterilized Americans).
For those whose views lie somewhere in between, the question is twofold: Where do we draw the limits of governmental authority; and once we do so, can we actually maintain those limits? Can we, in other words, stand on the slippery slope without sliding down it?
In the Tuskegee Experiment (1932-1972), the federal government arranged panels of mostly poor, uneducated African-American men suffering from syphilis. For decades, experimenters observed the deterioration in the men’s health without offering them available treatments or adequately explaining the nature of the experiment to the men.
This experiment is viewed today as an ethical horror. But, one of my fellow conferees asked, how significantly does this differ from today’s pharmaceutical trials where 50 percent of the subjects are given placebos — perhaps guaranteeing their deaths — while the other 50 percent receive the experimental drug, thereby granting a chance at life?
Again, no answer is offered here.
Finally, there’s the question of how we define “public welfare” and the realm of acceptable government action. For a long time, public health was mostly concerned with the control of communicable diseases. More recently, the focus has shifted to chronic, non-communicable conditions.
Under Mayor Michael Bloomberg, New York City famously banned smoking in restaurants, the sale of large-sized sodas, etc. To a considerable degree, the motivating factor — public welfare — shifted toward the financial.
Obesity, one argument goes, increases healthcare costs, so therefore the government is entitled to control individual behavior to minimize financial burdens on society. But it’s worth noting, 20th century eugenicists argued that mandatory sterilization was justified by the monetary savings.
Going forward, the questions of where we draw the limits of government authority, and how we draw them, and whether we can actually draw them, will hang heavily over public policy.
