Not long ago, the American Civil Liberties Union (ACLU) warned about the grave dangers of the approach to pandemic management that is now being increasingly pushed by our government. It argued convincingly that an approach based on persuasion and voluntary compliance is both more effective and less likely to erode fundamental liberties than a punitive one based on coercion and mandates.
The NSCLA considers it instructive to review the analysis of the ACLU in our current context.
For those not familiar, the ACLU is an influential non-profit organization, founded in 1920 “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States”. It has played a key role in US civil rights history, including elimination of discrimination against women, minorities, and LGBT people, and struggles for prisoners’ rights and bodily autonomy.
In 2008, the ACLU published a detailed report strongly denouncing the use of mandates, coercion and excessive control by the state in name of protecting the public from a pandemic. The document is titled “Pandemic Preparedness: The Need for a Public Health – Not a Law Enforcement/National Security – Approach”. The ACLU describes its significance as follows:
[T]he following report examines the relationship between civil liberties and public health in contemporary U.S. pandemic planning and makes a series of recommendations for developing a more effective, civil liberties-friendly approach. […] Not all public health interventions have been benign or beneficial, however. Too often, fears aroused by disease and epidemics have encouraged abuses of state power. Atrocities, large and small, have been committed in the name of protecting the public’s health.
The context for the report was the 2008 emergence of the avian bird flu pandemic (fears of which turned out to be much overblown). It also addressed new pandemic legislation and regulatory frameworks enacted in the aftermath of 9/11. As the ACLU put it, these new frameworks assume “that every outbreak of disease could be the beginning of some horrific epidemic, requiring the suspension of civil liberties.”
The ACLU
document explains:
Rather than focusing on well-established measures for protecting the lives and health of Americans, policymakers have recently embraced an approach that views public health policy through the prism of national security and law enforcement. This model assumes that we must “trade liberty for security.” As a result, instead of helping individuals and communities through education and provision of health care, today’s pandemic prevention focuses on taking aggressive, coercive actions against those who are sick. People, rather than the disease, become the enemy.
The ACLU notes
“Lessons from History” that are important to bear in mind in crafting
effective, rights-respecting responses to pandemic threats:
American history contains vivid reminders that grafting the values of law enforcement and national security onto public health is both ineffective and dangerous. Too often, fears aroused by disease and epidemics have justified abuses of state power. Highly discriminatory and forcible vaccination and quarantine measures adopted in response to outbreaks of the plague and smallpox over the past century have consistently accelerated rather than slowed the spread of disease, while fomenting public distrust and, in some cases, riots.
The lessons from history should be kept in mind whenever we are told by government officials that “tough,” liberty-limiting actions are needed to protect us from dangerous diseases. Specifically:
· Coercion and brute force are rarely necessary. In fact they are generally counterproductive—they gratuitously breed public distrust and encourage the people who are most in need of care to evade public health authorities. …
· Minorities and other socially disadvantaged populations tend to bear the brunt of tough public health measures.
According to the ACLU, in the context of a pandemic:
The notion that we must “trade liberty for security” is both false and dangerous. It is false because coercive actions are seldom conducive to public health protection. It is dangerous because it provides a never-ending justification for the suppression of civil liberties while failing to safeguard public health. Public health is not a law enforcement or national security problem.
The document criticizes the “law enforcement approach” to pandemic management on three grounds:
· It’s ineffective. The law enforcement approach has not and cannot prepare us for serious epidemics. Effective public health efforts, whether aimed at pandemic influenza or more common diseases such as TB and HIV/AIDS, are neither cheap nor glamorous. They are costly and difficult. These efforts require working with rather than against communities, providing communities with as healthy an environment as possible, health care if they need it, and the means to help themselves and their neighbors. Most importantly, to protect public health, public health policies must aim to help, rather than to suppress, the public.
· It’s dangerous for civil liberties. The law enforcement approach to public health offers a rationale for the endless suspension of civil liberties. The “Global War on Terror” may go on for a generation, but the war on disease will continue until the end of the human race. There will always be a new disease, always the threat of a new pandemic. If that fear justifies the suspension of liberties and the institution of an emergency state, then freedom and the rule of law will be permanently suspended.
· It’s usually unjustly applied. The law enforcement/national security approach is unlikely to affect everyone uniformly. … Should a new disease outbreak arise, a public health policy that emphasizes coercion and the dangerousness of the sick will most assuredly fall disproportionately on those who already face discrimination and/or are least able to protect themselves.
In its report, the ACLU is critical of current plans that assume only a “worst case scenario” and encourage counterproductive overreactions, in which law-enforcement techniques and drastic anti-civil liberties measures are used as the first resort, rather than the last resort. This means there is little or no planning for measures to help the population in less catastrophic public health situations. Problems identified with current planning approaches include:
· A reliance on coercion. Although most of the verbiage in these plans is vapid and virtually without content, and based on assumptions that will inevitably turn out to be mistaken, the one commonality they all possess is reliance on coercive actions such as quarantine and forced treatment. This is despite the fact that such measures are generally acknowledged by experts to be either completely ineffective or only potentially marginally effective in the case of flu. But law enforcement and national security continue to be the key elements, perhaps not surprising given President Bush’s first suggestion to contain a bird flu pandemic: calling out the military to quarantine large sections of the United States to prevent flu from spreading across the country.
· A lack of specifics. Because these plans do not give those in charge any specific, useful tasks to perform (beyond distributing stockpiled drugs and vaccines, if and when they are developed and produced), public authorities are apt to take useless and counterproductive anti-civil liberties actions to demonstrate that they are “doing something” to respond to the crisis.
· A loss of privacy. Planning for the worst case encourages health officials to view symptoms of almost any illness as the potential beginning of a pandemic. Pressure to find the first possible case of flu as fast as possible has encouraged wide-ranging surveillance systems to permanently monitor individual medical records and pharmacy purchases and link them to data bases in law enforcement, homeland security, agriculture, banking, customs and immigration. As a result, the punitive all-hazards approach encourages the wide-spread, unnecessary and permanent violation of individuals’ privacy.
The ACLU called for “a new paradigm for pandemic preparedness” based on four fundamental principles: Health, Justice, Transparency, and Accountability, which it explains as follows:
· Health: The goal of preparing for a pandemic is to protect the lives and health of all people in America, not law enforcement or national security. In contrast to law enforcement and national security measures, which are designed to punish criminal offences or acts of war, a public health approach to preparedness rightly focuses on preventing illness, rather than punishing people… A public health approach treats everyone in the population as deserving of protection, not as the source of disaster.
· Justice. Preparation for a potential pandemic (or any disaster) should ensure a fair distribution of the benefits and burdens of precautions and responses and equal respect for the dignity and autonomy of each individual. In a democracy based on the rule of law, principles of justice govern the response to disasters, as well as ordinary circumstances.
· Transparency. Pandemic preparedness requires transparent communication of accurate information among all levels of government and the public in order to warrant public trust. A healthy democracy depends upon mutual trust between government and the people. Individuals who trust the government to protect their liberties are more likely to trust government to protect their lives and health. Distrust engenders resistance. … Private individuals are the immediate first responders in an emergency and ordinarily the best judges of their own resources and needs. The more government officials try to control events, the more they will be blamed for not preventing disasters or for the inevitable mistakes in responding.
Transparency is an essential prerequisite for gaining public trust. People are more likely to cooperate with reasonable requests when they are confident that government officials are being honest about the probabilities of risk and outcomes, and are willing to acknowledge uncertainty and admit mistakes.
· Accountability. Everyone, including private individuals and organizations and government agencies and officials, should be accountable for their actions before, during and after an emergency. The rule of law demands protection of rights and duties, even when they are most unpopular. The prospect of accountability is often the only check on temptations to act unjustly during emergencies. The more latitude government officials are granted during emergencies, the more important it is to hold them accountable for significant errors, arbitrary actions and abuses of power.
Despite the ACLU’s inexplicable recent abandonment of the principles it articulated in 2008, the NSCLA sees no reason to depart from the common wisdom set out above in the context of the COVID-19 pandemic. To be sure, COVID-19 is an illness that should be taken seriously, in particular by those who are especially vulnerable to it. But it is nowhere near dangerous enough—if anything ever could be—to justify the creation of a bio-security state that dangerously undermines the civil liberties, social fabric, mutual respect, and personal autonomy our citizens, the fundamental importance of which has long been recognized even in challenging times when such liberties are unpopular.
The NSCLA calls on our government leaders, courts and the public to recall the principles explained so clearly by the ACLU in 2008. We must embrace an approach to pandemic management that foregrounds not coercion, blanket medical mandates, stigmatization, job loss, social exclusion and punitive measures, but rather Health, Justice, Transparency, and Accountability as described above. Indeed, we are all in this together; or so we have been told.