COVID-19, Risk, and Rights-Violations

This is a discussion that Michael Young and I started at my Facebook page on this article by Michael Tomasky in The New York Times (ht: Suleman Khawaja). Here’s Tomasky’s thesis in a sentence:

Freedom means the freedom not to get infected by the idiot who refuses to mask up.

I started the conversation, which we agreed to continue here instead of on Facebook.

I mostly but don’t entirely agree with Tomasky. Some agreements. I agree that

  • we have a right to be free from human-borne pathogens like SARS-CoV-2;
  • that their spread constitutes a rights violation;
  • that the Left (or non-Right) has to go on the offensive in challenging right-wing conceptions of “freedom”; and
  • that the Right’s unchallenged monopoly on “freedom” is unearned.

I also agree that people should wear masks, and that wearing one can be made a legally enforceable requirement. I myself wear a tight-fitting surgical mask Monday through Friday, eight to nine hours a day, doing strenuous physical labor (in Support Services for a hospital operating room). So do all of my work colleagues. We’re all tired of bullshit excuses for not wearing masks.

I disagree with Tomasky’s cavalier rejection of the link between economic and political freedom, which strikes me as a bit clueless and confused, and is one reason why the Left has lost ground to the Right.* Every producer and every consumer–every human being–has a stake in the link that Tomasky derides. His crack about the Scandinavian countries is an irrelevant red herring that bypasses the relevant issues.

On a related but different note, I wanted to single out this powerful, moving Op-Ed in the Newark Star-Ledger by my friend and onetime neighbor Alice Roberts, widow of Glen Ridge Police Officer Rob Roberts, whose tragic death due to COVID-19 I’ve mentioned before at PoT. I couldn’t agree more with what she says (ht: William Ortiz):

Before this year, I never made too many pleas in life. But I have made plenty these past several months. First, a plea for my husband’s life. Then, a plea for my kids to have a semblance of normalcy.

Now, I have one for anybody who supports President Trump or for voters who are still on the fence. I plead with you to remember his lack of action after learning the true dangers of the virus in January. Consider the long-term consequences that his failed pandemic response has had on first responders, doctors, nurses, workers, students, teachers, and families. Think of how much more we still stand to lose if we re-elect President Trump who, time and again, has shown us who he is, mask off.

It’s too late to prevent this virus from taking over our lives at this moment. But we still have time to make sure it doesn’t define our future if we stand together in this election and vote out President Trump.


*Tomasky: “It’s manifest silliness. To be sure, when they were writing, it was true of a place like the Soviet Union. But it is not true of Western democracies. If they were correct, the Scandinavian nations, statist on economic questions, would have jails filled with political prisoners. If they were correct, advanced democratic countries that elected left-leaning governments would experience a simultaneous crushing of political freedom. History shows little to no incidence of this.”

Simple counter-example: most liberals regard laws against possession and consumption of marijuana as violations of freedom, and yet most arrestees never go to jail. Would Tomasky say that their arrests aren’t violations of freedom simply because the arrestees go through custodial supervision rather than incarceration?

Note: The opinions expressed in this post and in the comments are those of the individual authors. My views (Irfan Khawaja) are not intended to represent my employer, Hunterdon Medical Center, its parent company, Hunterdon Healthcare, any of its affiliates, or any other person or organization.

15 thoughts on “COVID-19, Risk, and Rights-Violations

  1. The right not to be infected by some individual or group of individuals (to be “free from” the disease or of being infected by others) is not a right to free action. In fact, the former right competes with (or conditions) the latter. And mixing up ‘freedom from’ and ‘freedom to’ doesn’t help matters. To be sure, any freedom (or right to free action) worth fighting for is constrained by this (and other) obligations or responsibilities. Stressing this point — “I’m in favor of the only kind of freedom worth fighting for!” — would count as an honest and clear reclaiming of pro-freedom rhetoric. But that does not seem to be what Tomasky has in mind.

    Like

    • Why isn’t it a right to free action? A free action is one without boundary crossing impediments. A pathogen is a boundary-crossing impediment. Every freedom to act implies freedom from the impediment to freely acting. Trespass is a violation of freedom to act; a right to be free of trespass is a right to be from trespassers.

      Like

      • If A does something that imposes too much risk of infection on B, this does up the risk of B’s range of possible action being restricted (if B gets really sick, she cannot go to the movies, etc.). Does A’s action in such a case count as A impeding B’s action? I don’t think so. And even if it does, we could not infer that the impeding action is not an impeding action that A has every right to perform (the range of action protected from interference is still an open issue). I think we get the right result in a much more straight-forward and intuitive way by saying that something in the family of A’s right not to be harmed by B is what is violated. I can certainly imagine a super-strong right not to have one’s range of possible action restricted by the actions of others (a right that we do not have) resulting in A having a kind of freedom-right claim against B here…

        Like

        • Forget infection. Let A be drinking and driving. I would say that a drunk driver violates the rights of everyone else on the road that he might hit (whether he hits them or not). The legal BAC of 0.08% is probably too lenient. I would say that 0.04% is rights violative. I think COVID19 infection is analogous. I don’t think you have a right to drive drunk (or speed), and don’t think you have a right to act so as to impose a potentially lethal risk of COVID infection.

          Liked by 1 person

          • How does one go about arguing for a particular number — whether 0.08% or something lower or something higher? This seems a case where the law of nature is too imprecise to give a definite answer. The general principle seems clear enough: requiring zero imposition of risk is too strict (everything we do poses some risk to others), allowing imposition of unreasonably high risk is too lax, but do you have suggestions as to how to narrow down on what’s “reasonable”? And will it be a uniform cross-contextual standard, or will it be responsive to pre-existing expectations, conventions, etc. in a given society? I’m inclined to think it has to be the latter; but when pre-existing expectation and conventions are very far from consensus, what to do?

            Liked by 1 person

            • How does one go about arguing for a particular number — whether 0.08% or something lower or something higher?

              The same way you decide whether someone is qualified to drive in the first place: you give them alcohol, measure their BAC, administer a closed-course driver’s test, and see whether they can execute the basic tasks of driving.

              I’m in the middle of moving, so my books and papers are packed away, but I think I got this from Leonard Evans’s chapter on DUI in Traffic Safety and the Driver: 0.04% is the point at which most drivers (meaning, just about everyone) will fail a driving test. The practical problem with 0.04% is that even though it’s the relevant threshold as defined by quasi-experimental conditions, law enforcement can’t typically replicate those conditions. So for legal or legalistic reasons (and/or logistical ones), 0.08% has become the threshold. But if we had perfect measuring instruments and the perfect objectivity, 0.04% would be the relevant threshold.

              In another sense, though, all things considered, the principle to follow from the first person perspective is simply not to drive within three hours of having an alcoholic drink, or to measure one’s BAC before driving (after drinking) and ensure that it’s well below 0.04%.

              Like

          • I agree with your framing here — which is in terms of rights-violation generally, not violations of the right to act freely (without impediment from others). Like Roderick, I’m unsure what counts as a reasonable take on how much risk (and of what harm or harms) one is permitted to impose on others in some relevant context X (and what to do when people disagree or when there is no one dominant reasonable convention). I suspect that, in a community of non-crazy but non-risk-averse folks, rules and conventions would allow quite substantial imposition of risk on others (especially when one is engaged in activities that are super-important for the person engaged in them, especially when the activity in question is something of social value). For this reason, I am skeptical that our legal rule of no more than .08% BAC is clearly wrong in some objective sense, unreasonable, etc. (though if it is true that your average person consistently fails a driving test that they would otherwise pass at .04%, this is certainly a powerful line of argument). More open to the argument that, when you compare drunk driving to other risky activities, it is out-of-line with the reasonable-enough implicit standards that govern such matters for us (and that lowering the limit to .04% would bring it more in line with this standard).

            Like

          • Regarding your last two points of agreement with Tomasky.

            You were pushing the line that more actions than the political right typically acknowledges (in particular, giving someone covid or increasing someone risk of such more than X amount) count as inferences in the free action of others. One thing that I pointed out is that this might not be Tomasky’s point at all. He might be asserting “freedom from” rights as against “freedom to” rights. I’m skeptical of your point (why not cash out my right not to be killed or raped or maimed in terms of these constituting someone “intervening” in my possible future free action?). And I think the folks who are all about “freedom from” should frame their points in terms of rights and distinguish freedom rights from rights the exercise of which promotes freedom (or valuable options or the ability to exercise them).

            I’m all for putting the proper bounds on the free actions protected by the right to free action. But, once this is done, if such rights are general and prioritized, their defense will involve an insistence — in reality, often a bit cranky — that, though the action I would perform might be stupid or harmful, you need to give me a very good, strong reason why it is okay to prevent me from performing it. However obtusely this stance is realized by anti-maskers (or anti-vaxxers) — evading and confabulating when presented with good, strong reasons that would justify the interference, effectively becoming context-bound absolutists — some version of such insistence is the traditional liberty-rights-are-pretty-damned-important stance. I don’t see the left taking this stance much at all anymore (except perhaps regarding abortion). I do think rights to free action (maybe or maybe not generalized rights to free action) have something like this kind of priority, though the matter is complicated and the precise content of such a right is relative to social conditions (that have become, in various ways, less friendly to the most expansive views of many, certainly generalized, rights to free action).

            The left does typically see folks as having extensive rights to various socially-produced goods (the best such position construes such rights as fair-shares rights, not need-based rights). It is correct, I think, not to stop there, but to stress that these rights matter as much as they do precisely because they enable people to take freely-chosen actions that are important for their well-being — and for many or most of the important things in life. I’m all for leftists (or anyone) stressing that the rights to socially-produced goods that they plump for are “pro-freedom” in this way.

            Not living in a society overrun by covid obviously serves our capacities to exercise valuable freedoms in the same sort of way (as does having an effective, fair police force). In this sense, the right not to live in such a society — a species of the right to have the government provide a vital good that the government and only the government has the capacity to provide — is pro-freedom. Despite being carried out through coercive means. Maybe something more like this — not what is indicated by his more sloppy language of “freedom from” — is what Tomasky has in mind by the left “reclaiming” the concept or rhetoric of freedom from the right? The political right in the U.S. has done a piss-poor job of defending our rights to free action and squaring them against our other rights and vital social needs (with an unfortunate, huge assist from libertarian intellectuals and popularizers).

            So, yeah, despite all of my cavils, complications and caveats, I pretty much agree.

            Like

      • A pathogen is a boundary-crossing impediment.

        Consider two hypothetical cases both of them generalized, deliberately stylized and unrealistic. For the sake of adopting some terms I use “risk profile” to mean the risk to one’s own health that is posed by contracting a contagious disease, “danger profile” to mean the danger that one poses to other people’s health given the risk of further transmission. These are really complicated series of possible harms and the probabilities of those harms rather than a single number and of course they vary depending on a lot of factors about the person and the people, institutions and physical environment around them.

        (Case 1: BUG CHASER). Bug Chaser wants to contract a disease D, and to live through the course of D, for reasons R(0-N). They have a risk profile of Σ RISKS, and a danger (to others) profile of Σ DANGERS. They are more or less realistically aware of the values of Σ RISKS and Σ DANGERS, based on a more or less accurate assessment of their own situation and their surroundings. For the sake of argument, stipulate that R(0-N) may include reasons that are stupid, imprudent or wrong, but not delusional, wildly misinformed, disordered in thinking, suicidal, or otherwise grossly pathological — maybe they want to write a first-hand book about the disease, for example. They’re aware that Σ RISKS cannot possibly be reduced to 0, but they acknowledge and are willing to accept some degree of risk to their own health for the sake of their reasons R(0-N). They’re aware that Σ DANGERS cannot possibly be reduced to 0, but they make conscientious efforts to reduce it as close as possible towards 0, at least with respect to any transmission that might plausibly be attributed to their own fault. (They make careful arrangements for isolation, refuse medical care, notify everyone over and over again that they have the disease and everyone should keep their distance, they have made careful provisions for testing and determining when they are no longer infectious, etc. The goal is to get and suffer the disease, not to give it to anyone else.)

        (Case 2: DAREDEVIL). Daredevil doesn’t want to, or aim to, contract the disease D, or to suffer its effects. But they want to do something else, activity A, for reasons R(0-N), that involves a known risk of contracting D. Activity A is not something that (in any sense) required of Daredevil to do, but it is something that is highly valuable to Daredevil. In order to carry on A, they have a risk of RISK-i of eventually getting infected, and given an infection they will have a risk profile of Σ RISKS, and a danger (to others) profile of Σ DANGERS. They are realistically aware of the values of Ri, Σ RISKS and Σ DANGERS, based on a more or less accurate assessment of their own situation and their surroundings. For the sake of argument, stipulate that R(0-N) may include reasons that are stupid, imprudent or wrong, but not delusional, wildly misinformed, disordered in thinking, suicidal, or otherwise grossly pathological. They are aware that the only way to reduce the risk of infection below RISK-i is just not to do A. They are also aware that, given an infection, Σ RISKS cannot be reduced to 0. For the sake of argument, it may even be relatively high — but not so high that it overcomes R(0-N) or gives them a decisive self-interested reason to give up A. They acknowledge the risks of contracting D and accept them because A is so important to them. On the other hand, while they are willing to accept a risk to themself, they are concerned not to pose a danger to others — while they’re aware that Σ DANGERS cannot possibly be reduced to 0, they make conscientious efforts to reduce it as close as possible towards 0, at least with respect to any transmission that might plausibly be attributed to their own fault — they routinely get tested for the disease while carrying with A, in case they ever do get infected they make careful provisions for isolation. Daredevil notifies anyone who might interact with them that they are doing A while acknowledging and accepting the risk of infection with D. The goal is to carry on doing A as long as they can do so, even if it means accepting a risk of eventually getting the disease, but not to give the disease to anyone else if or when their number comes up.

        Suppose that a third party, Patient N-1, does in fact infect Bug Chaser, or does in fact infect Daredevil, with D. Does Patient N-1 impose a boundary-crossing impediment on Bug Chaser? On Daredevil? Or, if the answer is, it’s complicated, then does it depend on the value of one or more of the parameters? (E.g., on the risk profile of the disease, or the quality of the reasons, or…?)

        (I’m not, in any case, asking whether or not it’s within Patient N-1’s rights to do the infecting, or whether or not Bug Chaser or Daredevil might be doing wrong by getting infected — there might be other reasons why it’s not, or reasons why they are, independent of any question about boundary-crossing or impediments for them. I’m just asking the narrower question of whether, and if so under what conditions, they themselves suffer any boundary-crossing impediment from Patient N-1.)

        Liked by 1 person

        • These are good questions. I actually don’t find your scenarios all that unrealistic. I need some time to think them through. Arguably, I am myself in the Daredevil case, and face the situation you describe just about every day.

          Like

  2. Saying whether or not the Scandinavian countries are more “statist” (or “socialist,” or whatever) than the u.s. is not straightforward. They tend to have higher taxes and a more expansive welfare state than the u.s. — but they also tend to have less economic regulation and micromanagement than the u.s. Which one is closer to or further from a “free market” will depend on which of those aspects one regards as most crucial. (In either case, both the u.s. and the Scandinavian countries are state-capitalist regimes bearing little resemblance to anything desired by right-libertarians OR left-libertarians OR Marxists.)

    Liked by 2 people

  3. I think you and this piece are technically correct about freedom, but not reading the debate correctly. I don’t think there’s any prominent voice that actually says spreading a lethal virus is not a rights violation. People generally agree on that philosophical point even if they don’t state it explicitly.

    But that philosophical point isn’t enough to answer the hard questions regarding covid. Even if spreading a virus can be a rights violation, it doesn’t imply that government can take any and all actions necessary to reduce this action to zero or near zero. Viruses have been around for a long time, and so has asymptomatic spread of viruses like the flu and others. If we are to make sure no such rights violations occur or punish all such rights violations, we would each have a very limited range of free action.

    So the issue does in large part hang on the level of risk that the virus poses. Pre-covid the world had basically implicitly accepted a level of risk of viral spread that did involve some number of deaths and of pain and suffering. Where people mainly disagree now is on (a) what level of risk COVID poses and (b) how much risk is high enough to justify a mandated and large scale change in lifestyle to reduce or eliminate.

    Liked by 1 person

    • People generally agree on that philosophical point even if they don’t state it explicitly.

      I’m skeptical of that, but let me put my skepticism aside, and assume for argument’s sake that we all agree on the principle.

      But that philosophical point isn’t enough to answer the hard questions regarding covid. Even if spreading a virus can be a rights violation, it doesn’t imply that government can take any and all actions necessary to reduce this action to zero or near zero.

      Both of those points strike me as strawman fallacies. Neither Tomasky nor I was saying that the single philosophical point can answer the hard questions regarding COVID. But whether or not to mask up is not a hard question. And no one, neither Tomasky nor I, was advocating that government take “any and all actions necessary to reduce epidemiological rights violations to zero. A person who insisted that theft was a rights violation could not fairly be interpreted as saying that the government should do anything and everything to reduce the incidence of theft to zero. No one on the “restrict action” side is saying that, or doing it.

      So the issue does in large part hang on the level of risk that the virus poses. Pre-covid the world had basically implicitly accepted a level of risk of viral spread that did involve some number of deaths and of pain and suffering.

      I agree with the first point, but not with the second, either as a matter of fact, or as a matter of normative implication. First of all, the idea of a the world’s “implicitly accepting a level of risk” seems imaginary. How would one demonstrate such a thing–an implicit universal level of risk acceptance? It contradicts the fact that different individuals assess risk differently in a huge variety of contexts–driving, the ownership of firearms, government intervention in the economy, etc. etc. Beyond that, COVID-19 is a novel coronavirus. So I don’t think it makes sense to say that a prior implicit acceptance of risk applies to it. Even if such an acceptance existed (which I dispute), it wouldn’t and couldn’t extend to a novel virus any more than my old credit card agreement implies agreement with the changes that the credit card company makes to the terms.

      Because SARS-CoV-2 is a novel virus, we lack the infrastructure and track record of effort against it that we have in other cases. Public health has been fighting the flu for a 100 years. By now, we know what we can and can’t do in fighting the flu–and this despite spending hundreds of billions of dollars in epidemiological infrastructure to fight it. We not only have a flu vaccine and flu therapies, but a huge monitoring system designed to ensure that each year’s flu vaccine covers as many strains of the flu for that year as possible. In other words, we’ve put enough effort and resources into fighting the flu to know where the point of diminishing returns arises in fighting it. (And the fact that so many people refuse to get the flu vaccine contradicts the idea that there is a universal acceptance of a single level of risk acceptance around the world, or even around the country, or a given city.)

      COVID-19 is totally different. It’s more contagious and lethal than the flu, it’s novel (hence unknown in its epidemiological ramifications), we have comparatively few therapies for it (or relatively weak efficacy), and no vaccine. So analogies from other viruses to this one aren’t going to be easy to make.

      Put it this way: despite 100 years of fighting the flu in a systematic way, last year, 34,000 Americans died of it. By contrast, after less than a year of fighting COVID-19, 215,000 Americans have died of it. Suppose we take the risk acceptance involved in the flu as a baseline. Then the risk acceptance norm is: invest in a century’s worth of efforts, including quarantines and lockdowns in the initial stages, and a century later reluctantly accept 34,000 deaths in the knowledge that you can do better. How does one translate that level of risk acceptance to the second year of COVID? At a minimum, it includes acceptance of the risk of governmental measures designed to fight the disease, especially in the early stages. But we can’t take the whole century of flu-fighting efforts as a “given,” then compare our risk assessment re (say) the flu and that regarding COVID 19. That’s not a comparison of like with like.

      Liked by 1 person

  4. Pingback: Nightcap | Notes On Liberty

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s