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Mandates and Liberty

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eye on the news

Mandates and Liberty

The public-health establishment must be clear about its reasons for imposing Covid-related measures. October 16, 2020
Covid-19

A central objective of public health is to prevent disease by addressing unhealthy conditions. For example, to reduce the risk of cholera, public health looks to ensure that the water is clean; to avoid worsening asthma conditions, public health works to remove dust mites in homes; and to prevent food poisoning, public health establishes sanitary conditions in the food supply chain. In these instances, public health addresses factors beyond individual action.

When it comes to communicable diseases, however, public-health intervention becomes more complicated because it targets individual behavior as opposed to environmental conditions. The prevention of communicable diseases raises questions about how far public health can go in limiting or mandating behavior in a country that prizes privacy and personal freedom. This is the dilemma in which we find ourselves over public health, Covid-19, and mask-wearing.

A wide range of interventions could be brought to bear to fight Covid-19 infection. They range from support for self-isolation and health education around masks and social distancing to repeated testing and quarantine mandates on businesses and individuals. The value of each intervention is a function of both its effectiveness and the degree to which the public accepts the necessity of submitting to it.

It is clear from hospitalization and mortality data that Covid-19 infection in younger people, taken in isolation, may not merit much more than consistent and unambiguous communication about the value of masks and social distancing. For older and more vulnerable populations who have a choice to avoid social and commercial activity, support for self-isolation, health education, and testing might be a sufficient public health response. But younger people can transmit the infection to older and more vulnerable individuals—and these individuals often do not have a choice to self-isolate or avoid crowded social spaces. These factors create the struggle in which public health finds itself regarding Covid-19 contagion.

Policymakers must determine what constitutes unacceptable thresholds for deaths. National and state Covid-19 response guidelines outline thresholds for number of cases per 100,000 and hospital capacity—but not mortality. Politicians say that “one death is too many,” but this utopian principle is unserious in the real world. An acceptable level of mortality must be addressed publicly in order to establish consensus about mandates on individual behavior.

Even after Covid-19 mortality thresholds have been breached—creating a compelling public health interest for further limiting individual behavior—it is essential that public health apply the legal doctrine of strict scrutiny to the decision. Strict scrutiny requires that any limitation, such as a law that affects personal freedom, must be tailored as narrowly as possible in order to preserve individual liberty.

Consistent communication about the value of masks, for example, is clearly warranted. But should they be mandated? Mortality thresholds, not rising cases alone, could justify mask mandates—but are masks the least restrictive alternative, thus meeting the strict scrutiny test? Failure to get buy-in from the public by addressing these questions openly leads to inconsistent compliance and distrust of public health officials. A greater emphasis on protecting those who have no choice to be exposed or limiting interaction between those who may transmit through testing and contact tracing might be as effective as a mandate especially if there is a broad scale negative reaction to the mandate.

Communication on the value of masks and social distancing must continue. Public health should be careful about pushing for mask mandates without broader discussion of thresholds and a clear commitment to the principle of strict scrutiny. Restrictions on personal behavior instituted without clear information can appear capricious and run the risk of being ignored.

Photo by Al Drago - Pool/Getty Images

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