A Different Danger: Coronavirus and Our Basic Rights

A Different Danger: Coronavirus and Our Basic Rights
By Joel Levin

We Americans take pride in our freedom. No one can take that from us. Is that true? What about a bug with the name of COVID-19, the coronavirus? What about every mayor, governor or health commissioner in the United States? Could any or all of them put us in a lockdown, the term generally associated with inmates in a prison, to be let out when, if and in a manner they determine? Does the common welfare (health) override somehow all of our rights: no speech, shopping, worship or walking the dog? Perhaps no voting (that later).

The coronavirus presents a danger of greater mortality to more people than any malady since the Great Spanish (probably originating, in fact, in Kansas) Influenza epidemic of 1919. It is hardly as deadly as HIV or SARS, but appears to have a rapid sweep they did not possess. Governments are taking drastic measures to counter that threat, from drive-through testing to quarantines to lockdowns in Wuhan, Italy and San Francisco. These necessarily restrict our rights to assemble, worship, travel and speak with each other. The doctors tell us this is fine, but their business is health not freedom.

Welfare versus rights: this is a debate, in various guises, that has raged since at least 1651 when Thomas Hobbes argued that we assemble into nations and governments, giving up our individual liberties, on the promise that, whatever else governments do, they are to keep us safe. Hobbes had in mind safety from foreign armies, threats of invasion, and civil wars sparked by religious intolerance. Hobbes agreed that, surely, basic welfare – health and safety- had to precede civil liberties.

But if this is so, how is it so? How much safety do we require? How do we balance the threat against the restriction, the potential gain against the certain loss? Quarantines would limit the common cold, a ban on guns would restrict violence, castration of sex offenders would limit recidivism, and banning alcohol would make the roads safer, domestic violence rarer, and life expectancy greater. Yet each has civil liberty concerns. The coronavirus talk today – leave it to the professionals, the authorities know best, get over it – may be  correct, but absent more thought and justification, blind deference presents a fundamental danger to who we are.

Of course, epidemics lead to a herd panic, as people just want them over, no matter what. The no matter what often has its own victims. Jews in Italy were slaughtered during times of the medieval plague as the perceived carriers of infection, newly arrived immigrants in America were blamed for the 1893 cholera epidemic, and the German population in Australia held responsible for the Spanish Flu epidemic: bad medicine and worse epidemiology all in search of public safety.

Medicine has advanced and Renaissance Italy is hardly modern America on the one hand, while the combination of high-end health professionals and courts wary of intruding on individual rights have long been the standard in America on the other. That said, this notion of how readily we should jettison our freedoms is worth testing.

As is the case now, 150 years ago those in America were worried about immigrants, particularly immigrants from eastern and southern Europe and East Asia. At the same time, the field of genetics was first developing (thanks to Mendel and Darwin) and it rapidly became the cutting edge of biological science and the key to understanding who we are, why, and how to improve as a group, whether that group is rust-resistant wheat, faster horses, or human beings needing to be healthy, intelligent and strong. Universities and the medical profession embraced the challenge of how society should understand genetics, and teamed up with government to effectuate the results they found, two consequences being (in part) the Chinese Exclusion Act of 1882 and the Immigration Act of 1924, which severely restricted immigration outside northern and central Europe.

The new science said some peoples, tribes and races were better (smarter, healthier, stronger) than others and we needed to produce people who were better, not worse, in order to survive and thrive. Sterilization laws would be one tool to be used to that end, a tool not itself necessarily racist, but rooted in the new science of genetics and its evil offspring, eugenics, the science of creating populations with more attractive genetic traits.

Then came Carrie Buck. Carrie was one of a number of children born to Emma Buck. She was placed in foster care and her mother committed to the Virginia State Colony for Epileptics and Feebleminded, having been accused of immorality, prostitution and syphilis. Carrie’s foster parents put her out for house work at age 11. At 17, she was raped by her foster parent’s nephew, and whisked away to the Virginia Colony for Epileptics and Feebleminded for her alleged feeblemindedness, incorrigible behavior and promiscuity. This was 1924. Under Virginia law, to improve public health and to prevent the birth of the often mentioned feebleminded, generation after generation, Carrie was scheduled to be involuntarily sterilized by the surgeon, John Bell. A lawsuit followed.

Buck v. Bell was decided by the United States Supreme Court in 1927. The decision was written by the court’s most eminent civil libertarian, Oliver Wendell Holmes. Carrie lost, and lost not based on the racism and chauvinism that were swirling in the field, but on the medical and scientific experts and the related literature. That science trumped Carrie’s rights to control her own body, her offspring, and her future. It was based on an extremely sparse and likely inaccurate assessment of who Carrie was. According to the Harvard biologist, Stephen Jay Gould, who examined her school and medical records, Carrie was, in fact, an average student and above average young lady in her conduct. Nevertheless, Justice Oliver Wendell Holmes held:

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if we could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerative offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes.” He then famously and notoriously proclaimed “three generations of imbeciles are enough”.

That case, and all its horror, represents how quickly civil liberties, even in the hands of a famous civil libertarian, can corrode in the face of medical experts and how early medicine and science can rashly overreact and lose their way. Buck v. Bell has yet to be overturned and was cited with approval, strangely enough, in Roe v. Wade.

If sterilization seems as remote to us scapegoating by those facing the plague – although all too current – let us conclude briefly with a look at voting. Coronavirus has already caused elections to be postponed, and postponements have political consequences: for example, a longer primary season may prove harmful to an heir apparent front runner. The matter was just tested with the Ohio primary. Governor Mike DeWine decided on March 16, the day before Ohio’s primary, to postpone it because of the coronavirus.  “The only thing more important than a free and fair election is the health and safety of Ohio citizens”, a chilling echo of Hobbes, but a statement made to applause all around by the scientific, the medical, and the worried. The case went to court, and in an opinion that shows more courage and perception than that showed by Justice Holmes, the Ohio judge, Richard Frye, was skeptical, ruling that he was uncomfortable making an 11th hour decision to delay the election, particularly since the state was utterly unable to say that the new date in June would be any safer. Moreover, he pointed out that the citizens of Ohio expected the election would occur the next day and should be given deference for that expectation.

Before there is a protest that none of this any longer matters or matters much, consider the Constitution and the Electoral College. Suppose the same states postponing elections now decide that, even in November, such elections would prove unsafe. The Electoral College members – according to the Constitution, Article II, Section 1, Clause2 – would then be automatically decided by the state legislatures, who are today majority Republican. This procedure, always available in American history, and used in its early days, was reaffirmed as legitimate in the famous Bush v. Gore case which decided, by 5 to 4, the Presidency in 2000. Cancellation would guarantee a Republican (Trump) victory. Mike DeWine, Oliver Wendell Holmes, and Thomas Hobbes would allow this, but perhaps not Judge Frye, who was almost immediately overruled by the Ohio Supreme Court. Is this a price we should be willing to pay, a deference to medical experts we should readily give, a trade-off we should be eager to make? Not necessarily for me.