Freedom and Civic Responsibility

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Freedom and Civic Responsibility

Is it our civic responsibility to get vaccinated? Is it true that, as is often claimed, that vaccine mandates are unconstitutional? Does the arc of the moral universe bend toward justice?

Is it our civic responsibility to get vaccinated? Is it true that, as is often claimed, that vaccine mandates are unconstitutional? Does the arc of the moral universe bend toward justice?

Introduction

There is a pressing need for thoughtful discussion of the ideas upon which our Canadian democracy rests. One of the most urgent of these concerns the idea of freedom. During the COVID-19 pandemic, as governments have imposed a range of limitations on liberty – primarily on freedom of movement and association – a variety of claims have been made for the meaning and scope of freedom. Some of the most disturbing of these have been made in response to the idea that people should get vaccinated against the virus for example, the assertion that a person’s right to freedom should prevail over any alleged obligation to be vaccinated.

The matter is urgent because such claims are dangerous, both in the immediate and near term – because they are harmful to the efforts being made to protect us from COVID and to end the pandemic – but also harmful in the longer run for the damage they do to the social cohesion necessary to support a decent society, including a functioning democracy.

No common understanding of the limits of freedom

While disturbing, it should probably not come as a huge surprise to discover in this time of crisis that we lack a shared understanding of freedom. It seems that the appropriate parameters of it have to be reconsidered periodically. One reason for this is that the balance to be struck between freedom and other central socio-political considerations is an inherently tricky one: it will always be difficult to reconcile well-established but competing political values. The tension around personal liberty (freedom) versus advancement of the common good (utility) is perhaps the most celebrated of these complexities and is manifestly in play in the controversy over public policy measures aimed at containing COVID 19, in particular over whether people should feel an obligation to get COVID vaccines. That question, put very simply it is this: how does my right to control my body measure up against the harm I do to others, if I choose not to be vaccinated?

Another reason for the difficulty is that the balance to be struck between these competing values will vary over time. There is no one compromise that is perfectly weighted between the two. (Or, if there is, we have no way of knowing what it would be.) Thus, whether caught up in a pandemic or not, a society will have to re-engage with this issue from to time. And this is a good thing. Black and female people, just to mention two groups, have especially to rejoice that the balance was not forever stuck at that point where their (our) freedoms were sacrificed in the name of what was once thought to be the greatest good for the greatest number. 

Recall, for example, some of the arguments against allowing women the vote. Many of these constituted some form of the claim that women would be distracted from their domestic obligations, and thus social chaos would ensue, were they given the vote. 

And of course the efforts to justify slavery with claims about the economic harm that would be done should it be abolished are notorious:

Defenders of slavery argued that the sudden end to the slave economy would have had a profound and killing economic impact in the [American] South where reliance on slave labor was the foundation of their economy. The cotton economy would collapse. The tobacco crop would dry in the fields. Rice would cease being profitable.

These arguments were based on an overly narrow notion of what counts as harm to society because it privileged economic damage over other critical factors, such as moral harm. More importantly they were morally indefensible because they mistakenly put what was thought to be the greater good for the greater number ahead of the most elementary of human rights, the right to govern oneself (to be an end in oneself, the philosophers might say) and not be treated as an object or property belonging to another (or as a means to someone else’s end).

The arc of the moral universe

If the arc of the moral universe indeed bends over time towards justice, as Martin Luther King, Barak Obama and many others have asserted it does, then the struggle over what should count as an allowable limitation on freedom has to be revisited time and again. This is partly because the matter is an inherently difficult one (see above) but also because humanity just might be learning something over time about, if nothing else, who is entitled to be free and what that glorious thing may mean. 

And regarding the arc’s bending over time towards justice, we have always to keep in mind the possibility of back-sliding. Women are acutely aware of this. For a contemporary example, observe which gender has paid the higher price in damage to employment and career during the COVID pandemic. It is well documented that it is women: no, but really, when push comes to shove (or a pandemic when the schools and childcare are closed) your place, mother – as opposed to father – is in the house, and – no, ha-ha – we don’t mean the House of Commons.

Also illustrative here are the continuing attacks both legislative and otherwise in the United States on access to abortion. No female of reproductive age has full human dignity without ready access to safe abortion and that access is under relentless attack south of the border.

Now we are faced with having to reconsider the balance between our personal freedoms and the public good at the very moment when we are under enormous pressure from the pandemic. But this too should not come as a surprise. It is precisely when crisis hits that questions we might have thought were decided may arise: think, for example, of the intense debates over military conscription in Canada during WW I or in the United States during the Vietnam War.

Worrisome claims about freedom made during the pandemic

The basic gist of many of these claims is this: it’s my body and I am free to do, or not do, with it whatever I want. You’ve seen the placards: “My body, my choice.” 

Stated baldly like this, these claims reflect a fundamental misunderstanding. To have freedom, or to be free, does not mean you get to do whatever you want. The most obvious limitations are those illustrated by situations where the exercise of freedom by one person immediately diminishes the well-being of another, for example by endangering her/him/they. “Your freedom ends where my nose begins” (and similar formulations) exemplify this limitation. 

What those who insist they are free to reject vaccination fail to appreciate is that by simply being alive – by breathing – they present a danger to others. Except for hermits – those who live truly apart and make next to no demands on others, with respect to diseases spread by respiration, we all present a threat to everyone with whom we come into even indirect contact. This is an extremely disturbing aspect of a respiratory pandemic – each of us has been in essence weaponized. 

One expression of defiance that has appeared on placards at anti-vaccination demonstrations is “Choose freedom, not fear.” This sort of language reveals a reductionism that seems to be at work in the minds of many: there is freedom, on the one hand, and there is the fear which drives the limitations, on the other. But of course, that is not the choice we are faced with at all. As always, the choice is between more and less fettered freedom; the task is to decide where the line between individual rights (the freedom to refuse vaccination) and measures aimed at achieving the greater good for the greater number (utility, in this case, the requirement of a COVID vaccine) lies.

Some people have tried to finesse this conflict by arguing that a requirement to be vaccinated does not infringe on liberty but rather expands it. For example, in a September 2021 piece in the New York Times, two lawyers working for the American Civil Liberties Union (ACLU) write:

In fact, far from compromising civil liberties, vaccine mandates actually further [emphasis added] civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of colour hit hard by the disease.

[And bans on corporate vaccine mandates as have been passed by some US states] … trample the rights of the most vulnerable, who want to participate in society without putting their health at grave risk.

But observations of this kind do not end the tension between liberty and utility, an erasure that is in any event impossible. They merely dress utility up in the language of liberty: vaccine requirements are permissible because the freedoms of certain groups will be enhanced by them, which is essentially a utilitarian calculation: more people will have more freedom if your freedom is limited. For the person who wants raw freedom, as it were (the kind expressed on New Hampshire state license plates: “Live Free or Die”), this is not compelling. S/he/they are willing to run the risk of their own infection and do not see why their freedom to do so should be limited in the interests of anyone else.

Some of the anti-vaccine claims are couched differently, at first glance more subtly than the more straight-forward “it’s about freedom and therefore all about me” variety. For example, there is the Western University engineering student who said he was not “anti-vaxx” in general but was not sure about this particular vaccine. He repeatedly defied the rule on that campus that in-person attendance was open only to the vaccinated. He had eventually to be physically removed from class and in protest claimed the university was in the wrong to deny him entry to campus because he had “a right to be uncertain.” But while superficially different the issue in his case is basically the same: this student is arguing that his alleged right to resolve his uncertainty by not getting vaccinated should prevail over all other considerations. 

And I simply cannot resist asking: exactly what degree of entitlement does it take for an undergraduate engineering student to think he is capable of assessing whether the vaccine is safe? When the vaccines first appeared in Canada in late 2020, to have such reservations was easier to understand and perhaps even to accept, at least temporarily. But that was then, this is now when billions of COVID vaccines have been administered globally with precious few serious negative reactions.

The answer is, a high degree of entitlement, it would seem: 

[The student in question] knows that not complying with the policy and then returning to class, after being told repeatedly to stay off campus, was risky.

[Says the student] “I’m honestly quite happy with it. I want the expulsion because they think that’s a record against me … But to me, it’s a record against the university, that (it) would be willing to expel a student for choosing to believe in what they believe.”

To state the obvious: he was not penalized for what he believed, he was penalized for what he did.

What these examples share: an atomistic notion of human existence

For many, freedom seems to have taken on an increasingly atomistic quality. The notion that we owe each other anything (beyond the obligations usually expected of family – and some would say those have weakened – and of those friendships we want to continue) seems to be an increasingly foreign one. I owe you nothing (or as little as I can get away with) and you owe me the same. I do not expect more of you and you should not expect more of me.

This atomistic view of society is reflected in the often heard claim that government authorities – representing I suppose the collectivity – do not care about people. To explain this opinion it has been pointed out that many of the programs that earlier provided a social safety net have been weakened over the last few decades.    

In response, some people have been inclined to shun the vaccine because they doubt the sincerity of the appeal by officialdom to protect oneself by getting it. Some have been heard to query why it is only now in the face of community spread of a serious respiratory infection, that government is showing concern: “Oh, so, now you care about my health?”

It is worrisome that there is a core of truth to support this skeptical view: official bodies are less caring because the programs that demonstrated and constituted caring have in so many ways been weakened or outright eliminated. A more atomistic view of how society should work has been taking hold, albeit more so in the United States than in Canada. One reason it does not apply so obviously in Canada is because we have a universal, government-funded healthcare system. But when you realize that health is a matter of much more than access to doctors and hospitals – for example, to adequate housing and food security – then you see how the view could come into play to a significant degree in Canada too. And speaking of housing, studies have tied the steep rise in homelessness in Canada since the 1990s to measures our government took in that decade to reduce the federal deficit by, amongst other means, cutting expenditures on affordable housing.

It has to be said that it is, nevertheless, an irrational response to straightened circumstances not to get vaccinated, because the refusal to do so is self-destructive: whether you are poor, rich or in between, the vaccines are proven to be effective in reducing serious illness and death from COVID. Observations about what are perhaps more immediate threats to health and life in some neighbourhoods, and within some groups, just do not constitute an adequate reason for not getting the vaccination which has been readily available and free, even in the United States. Yes, you may be way more likely than I am to be mugged on your way home from work (and many of us passionately wish this were not the case and vote accordingly), but why then make your situation that much worse by failing to be vaccinated? Because it feels good to stick it (as it were) to “The Man”? The mindset revealed by those who choose not to be vaccinated for such reasons is profoundly disconcerting. Is it in essence a sense of worthlessness? Do we have worthlessness at one end of the anti-vaxx spectrum and entitlement at the other? It’s not clear but both seem to stem from alienation, a sense of occupying a space out of the mainstream.

No (hu)man is an island

The notion that individual freedom should prevail over other competing values trades on the notion that human beings can live as islands, without dependency on others in society. And this has been de-bunked time after time. We are in fact – and this may be part of what is causing some people to rebel against the pressure to be vaccinated – probably more inter-dependent than ever. Has the pandemic itself not re-taught this lesson? The overcrowding in the bus driver’s apartment is the source of the Executive Assistant’s and then the CEO’s COVID infection. Grocery store employees have to commute long distances because they cannot afford housing near where they work and fall ill, infecting members of the public as well as co-workers. 

What we do affects others, and thus limitations on freedom are defensible. But which limitations, and in what circumstances? We know we need a principled approach to limiting freedom for without a framework we are likely to end up with an incoherent set of ad hoc limitations that invites further abuse. Hence the maxim: the price of freedom is eternal vigilance. 

Section 1 of the Charter

So where might we look for that principled guidance? I suggest we could do a lot worse than to consult section 1 of the Canadian Charter of Rights and Freedoms which reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 1 was the product of much deliberation before the Charter came into force in 1982. Rights, we knew, would have to be limited in certain circumstances. Did we want that explicitly stated in the Charter? Yes. Then the question became, how should the standard for application of such limitations be worded? The answer was what we see in section 1. A better formulation could perhaps have been devised, but for our purposes section 1 is a good place to start thinking about the logic of limiting freedom.

The critical words are “demonstrably justified in a free and democratic society.” But how are we to interpret them?

The word “free” begs the question of course in this context but its presence perhaps usefully reminds us of the centrality of the notion of freedom to our socio-political culture. Free goes right to the heart of the dignity that is the driving force behind any human rights agenda: if we are not free, then we do not have dignity, not in the relevant sense. Yes, we sometimes say a person can endure degradation with dignity. But it is still true that a degraded person has been robbed of their dignity, that they have been denied some degree of their personhood.

It is the phrase “demonstrably justified” with which we have to wrestle. Guidance on what should satisfy that criterion can be had from the approach the Supreme Court of Canada takes when deciding if an infraction of the Charter by government will be allowed to stand. It is called the “Oakes Test.”

The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right.

  1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. …
  2. The court then conducts a proportionality analysis using three sub-tests.
    1. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.
    2. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”
    3. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.

Thinking along the lines of the Oakes test, is it demonstrably justifiable that we should feel an obligation to get the COVID vaccine? Should getting the vaccination be considered a civic duty?

The two ACLU lawyers mentioned above, David Cole and Daniel Mach, argue that the balance between liberty and utility should be struck in favour of requiring vaccination:

While the permissibility of requiring vaccines for particular diseases depends on several factors, when it comes to Covid-19, all considerations point in the same direction. The disease is highly transmissible, serious and often lethal; the vaccines are safe and effective; and crucially there is no equally effective alternative available to protect public health.

They are American, not Canadian, lawyers and thus probably know little about our Charter of Rights and Freedoms. Nevertheless, note how closely their reasoning tracks the Oakes test. Requiring vaccination is aimed at the “pressing and substantial” goal of defeating a “highly transmissible, serious and often lethal” disease. A vaccination requirement is “rationally connected” to that goal because the vaccines are “effective” and minimally impair freedom as they are “safe” and “there is no equally effective alternative available to protect public health.”

Cole and Mach add:

Vaccines are a justifiable intrusion on autonomy and bodily integrity. That may sound ominous, because we all have the fundamental right to bodily integrity and to make our own health care decisions. But these rights are not absolute. They do not include the right to inflict harm on others.

This conclusion seems correct to me, not because to require vaccination does not encroach on freedom, but because it is demonstrably justifiable in our present pandemic circumstances to insist on that encroachment.

Conclusion

As the pandemic drags on, there is – understandably in my view – less and less patience with those who refuse to be vaccinated. We are beginning to hear talk about civic duty, about what we do indeed owe each other. This is a good thing. Although it may seem a bit of a puzzle that it took this long to get to this point – because questions about the limitation of freedom are such big ones, indeed central to how a liberal democracy organizes itself, and thus likely to provoke passionate disagreement – it is perhaps understandable that we have not been all that eager to confront these matters until we absolutely had to. That is, until now. 

As I write, the first omicron wave of the pandemic seems to be ebbing across the country but we have been put on notice: this may well not be the end of COVID and, in any event, we face other serious difficulties that demand a collective response and, for sure, new calamities will befall us. We need to know what we think collectively about how to balance personal freedom with measures aimed at solving these problems, at advancing the common good.

It is not difficult to reach the conclusion that vaccination is a civic duty, now that the evidence is in about the efficacy of the vaccines and the negligible danger they represent. Harder is, what else do we owe one another? I have no doubt it is substantially more than submission to vaccination. For examples, a legally enforceable guarantee of adequate housing and a meaningful response to the climate and environmental crises, both of which would almost certainly entail higher taxes, itself a further encroachment on freedom, and other limitations on our freedom of action. 

As a society we must pay explicit attention to this need to balance freedom and utility, that is, to the scope of our civic duties, and that attention should include sustained public engagement, not just pronouncements from elected officials, public health officers and others in positions of authority. The engagement must be broad-based to counter the divisiveness and alienation – the entitlement and sense of worthlessness, if that’s what it is, as well – that threaten the social cohesion necessary to support a democratic form of government. 

It has been said often during the pandemic that “We are all in this together.” We should be, but we aren’t – not yet.