I. INTRODUCTION
Public health policies, including those adopted in response to COVID-19, often explicitly treat people differently. They do so based on where people live or travel, what activities they engage in, and how likely they are to get very sick or get others sick. Treating people differently can help control disease while reducing collateral damage to freedom and flourishing. Yet some complain that policies that treat people differently unfairly pick winners and losers or unacceptably divide society into haves and have-nots. These objectors come from across the political spectrum. Legally and ethically, what should we make of their objections?
In this Article, I argue that policies that treat people differently—which I call “tailored” policies—are typically legally and ethically preferable to untailored, one-size-fits-all policies. They are preferable not merely because they better control disease, but because, compared to alternative options, they also better protect liberty and promote economic and social wellbeing, including the wellbeing of the least advantaged in society.
I begin in Part II by discussing two types of tailored policies: activity-based and group-based. Activity-based policies respond to differences in the risks and benefits of specific activities. Group-based restrictions consider differences between groups with respect to risk and benefit. Last, individualized policies include policies that treat individuals differently based on their individualized risk of contracting COVID-19, getting very sick, or spreading COVID-19 to others.
In Part III, I consider the legal case for tailored policies. I argue that the law sometimes requires tailored policies, and rarely prohibits them.
In Part IV, I consider the ethics of tailored policies. I argue that policies must be assessed comparatively: the question is not whether tailored policies are perfectly equitable, wholly prevent harm, or perfectly protect liberty, but whether they are better than one-size-fits-all policies at improving liberty, preventing harm, and assisting the least advantaged, once all benefits and harms are considered. Usually, they are.
II. TAILORED POLICIES IN ACTION
In this Part, I review and categorize several types of policies that states and localities have adopted, or that have been proposed by commentators or policymakers. I begin in Section II.A by examining activity-based policies, which limit certain activities while permitting others. Section II.B then turns to group-based policies, which differentiate groups of people based on risk. Many policies could be understood as either activity or group based; mask requirements, for instance, can be understood as activity based (prohibiting unmasked activity by any person) or group based (differentiating masked from unmasked people). Group- and activity-based policies are often combined; for instance, a policy may require masks only in indoor venues.
A. Activity-Based Restrictions
In this Section, I begin with the most common way of tailoring policies, “activity-based” tailoring. Activity-based tailoring restricts riskier or less beneficial activities while permitting less risky or more beneficial activities.Footnote 1 It typically considers three different factors that affect risk and benefit: what activity is happening, where it is happening, and how many participants there are.
Table 1 represents activity-based tailoring on a two-dimensional matrix. One dimension is benefit, the other risk.
Table 1. Risk and benefit levels for certain activities during the COVID-19 pandemic
States and localities adopted numerous activity-based policies during the pandemic.Footnote 2 No state closed “essential” businesses, such as grocery stores, gas stations, and banks.Footnote 3 Most only closed certain high-risk businesses, closed businesses in specific areas of high COVID-19 prevalence, or limited certain types of activities, such as indoor food service or gatherings.
B. Group-Based Policies
In this Section, I discuss “group-based” policies, which apply to specific groups who are at higher risk of transmitting COVID-19 or suffering poor outcomes.
1. Risk of Spreading Infection
a. Current Infection
Active COVID-19 infection is broadly regarded as a legitimate reason to impose restrictions. Businesses may legally require testing and exclude individuals who are currently infected.Footnote 4
Some have proposed scaling up testing via rapid tests to break chains of transmission.Footnote 5 Under this approach, advocates argue that employers could require “workers to take time-dated pictures of their negative test results before coming to work,” colleges “would require students to do the same before coming to class,” and restaurants “could accept reservations only if accompanied by negative-test pictures.”Footnote 6 Many universities require their on-campus students to test regularly and to quarantine if they receive a positive test.Footnote 7 Some settings have also adopted symptom rather than infection testing, but symptom testing is not very reliable.Footnote 8
b. Travel History
Some U.S. states and localities have required people who have traveled to areas with high COVID-19 prevalence to quarantine or have excluded them from certain activities.Footnote 9 In some cases, these quarantine requirements are waived for people who show a negative COVID-19 test.Footnote 10 Some workplaces and other venues have also elected to exclude travelers from certain activities.Footnote 11
c. Mask Requirements
Mask requirements have been adopted in most states and localities.Footnote 12
2. Risk of Becoming Ill
a. Immunity
The group of people who are immune from COVID-19 might be excused from some restrictions to which others are subject. There is evidence that prior infection confers immunity, and some tests seem predictive of prior infection, but states and localities have been hesitant to base policies on these tests.Footnote 13 Uncertainty initially existed regarding how well current antibody tests identify past exposure, about the extent to which antibodies are predictive of immunity, and about how long immunity lasts, though some of the uncertainty has resolved.Footnote 14 The Equal Employment Opportunity Commission prohibited serological tests that assess whether someone previously contracted COVID-19 from being used in workplace decisions.Footnote 15
Now that COVID-19 vaccines are becoming widely available in the United States, vaccination status is a more likely basis for immunity-based policies. Some settings, such as nursing homes, emergency services,Footnote 16 and universities,Footnote 17 have begun to require vaccination for employment or attendance, and many countries are creating infrastructure to allow businesses and venues to determine whether someone has been vaccinated.Footnote 18 Unlike policies based on infection-derived immunity, immunity due to vaccination does not raise the concern that people might self-infect to become immune.Footnote 19 There is increasing evidence that COVID-19 vaccines prevent transmission as well as infection, meaning that immunity-based policies address the risk of spreading infection as well as the risk of becoming ill.Footnote 20
b. Medical Vulnerability
During the pandemic, people over a certain age have sometimes been discouraged from participating in certain high-risk activities, or even excluded from those activities.Footnote 21 Some commentators have suggested the broader use of age-targeted policies.Footnote 22 Age is often used because it is a less controversial legal and social category than other categories that might be correlated with risk, such as sex or race.Footnote 23
A variety of medical conditions have been identified as risk factors for poor outcomes from COVID-19.Footnote 24 Reputable studies have also suggested other factors, such as blood group, are predictive of risk.Footnote 25 If individual risk could be estimated, restrictions could be calibrated to risk. Individualized judgments about risk to an employee can be a legally acceptable basis for employers’ decisions,Footnote 26 and judgments based on risks associated with medical conditions have been used to prioritize people with high-risk conditions for access to vaccines.Footnote 27
III. THE LEGALITY OF TAILORED POLICIES
In this Part, I consider the legal dimensions of tailored policies. I explain that tailored policies are often legally preferable to untailored ones, particularly where fundamental rights are concerned. I also explain why equal protection concerns should not typically obstruct the implementation of even imperfect tailored policies. Freedom and equality are not the only relevant values—wellbeing matters too—but this Part focuses on freedom and equality because of their primacy in American law.
A. “Well-Targeted” Policies and the Least Restrictive Alternative
Public health law scholars have embraced the idea that restrictions should be the “least restrictive alternative”: they should restrict individual freedom no more than is necessary to protect the public’s health.Footnote 28 The need to limit infringements on individual freedom is embodied in the Model State Public Health Act (“Model Act”):
Well-targeted intervention. A state or local public health agency shall strive to design and implement interventions that are well-targeted to accomplishing essential public health services and functions. An agency should avoid using compulsory power in a manner that is over-broad (applying to more individuals than is necessary for the public’s health)… .
Least restrictive alternative. A state or local public health agency shall employ the least restrictive alternative in the exercise of its authorities or powers, especially compulsory powers. This means that where the agency may exercise one or more of its authorities or powers to accomplish essential public health services and functions, it shall, to the extent possible, employ the policy or practice that least infringes on the rights or interests of individuals. Employing the least restrictive alternative does not require the agency to adopt policies or programs that are less effective in protecting the public’s health or safety.Footnote 29
While few jurisdictions have adopted the Model Act’s language wholesale,Footnote 30 the concepts of targeting and the least restrictive alternative have found their ways into state public health statutes and regulations,Footnote 31 as well as agency guidance.Footnote 32
Legally, however, application of the least restrictive alternative principle or analogous approaches has primarily been confined to public health restrictions that limit fundamental constitutional rights, such as religious exercise, speech and assembly, and travel, whether those rights are specifically enumerated or instead considered fundamental by courts. Restrictions on religious exercise that are not neutral and generally applicable must satisfy strict scrutiny.Footnote 33 Strict scrutiny also applies to restrictions on the right to interstate travel,Footnote 34 but not necessarily to restrictions on intrastate travel. For speech and assembly, content-neutral restrictions must satisfy intermediate scrutiny—that is, they must be “narrowly tailored to serve a significant governmental interest.”Footnote 35 At least one court, however, has signaled that non-religious and religious speech may need to be treated similarly, presenting the prospect of functionally “leveling up” restrictions on nonreligious speech to a strict scrutiny standard.Footnote 36 Another court attempted to revive Lochner-era jurisprudence, recognizing economic liberties as fundamental, but that decision was quickly stayed.Footnote 37
Plausibly, fundamental rights analyses, or other forms of heightened scrutiny, will favor certain group-based exemptions from public health restrictions. For instance, it is difficult to justify preventing vaccinated people from attending in-person worship services or theater performances. Analogously, one court referenced the existence of exceptions for people with a recent negative test in support of its conclusion that a quarantine requirement for travelers satisfies strict scrutiny.Footnote 38 More generally, heightened scrutiny requires that restrictions be grounded in factual evidence, which will tend to promote better-tailored policies over time.Footnote 39 But heightened scrutiny applies only to state action—not to state inaction. The law does not require factual evidence supporting the absence of restrictions, which is likely to lead some decisionmakers to choose unsafe options that permit greater viral spread.Footnote 40
B. Equal Protection
Public health law scholars have argued that law and policy should be equitable as well as effective. As Bruce Jennings notes:
An intervention could be well-targeted because it was efficient and effective at neutralizing or controlling the risk. Such an intervention would limit the liberty only of those it was necessary to affect in order for the public health or security operation to be successful. The coercion would be a surgical strike; collateral damage to liberty would be held to a minimum. On the other hand, well-targeted could mean justly, fairly, or equitably targeted. A requirement for the moral justification of the public health intervention would be that the intervention’s burdens (loss of liberty) and benefits (increased protection) be fairly distributed. If we follow the now widely accepted Rawlsian notion of fairness, that would mean that the benefits and burdens would have to be distributed equally across the population unless a deviation from that equal distribution could be shown to redound to the benefit of the least well off. While there may be no inherent conflict between considerations of efficiency and equity, in a given case a scarcity of manpower or resources might likely mean that an operation that was more widely administered in the name of fairness would be less effective in terms of public health outcomes.Footnote 41
While Jennings’ view—that public health restrictions should impose equal burdens as a default and show special concern for the disadvantaged—is worthy of consideration, equal protection doctrine departs sharply from Jennings’ “equal burden” approach. There is no legal requirement that public health restrictions distribute burdens evenly across the population, show special solicitude for the worst off, compensate affected individuals for the burdens imposed by restrictions, or restore such individuals to their pre-pandemic position. And this makes sense not only legally, but ethically. Even when tailored policies produce unequal burdens, the demand cannot reasonably be for a tailored COVID-19 response to be Pareto-superior—that is, worse for no one—compared to the status quo or to an untailored lockdown.Footnote 42 Any policy is likely to benefit some people relative to the status quo or alternatives, and to burden others. This is in no way unique to COVID-19 policy. Other major policy changes, such as investments in technologies like the internet, efforts to mitigate harms like pollution, and protection for new forms of rights, also benefit some people while worsening the situation of others.Footnote 43
Challenges to activity-based restrictions as violations of equal protection have therefore typically been unsuccessful.Footnote 44 Most of these challenges follow a similar form. First, the challenger argues that they are being treated differently from some other businesses or sets of businesses.Footnote 45 The court explains that, because the challenger is not part of a protected category, the challenge must be analyzed within a rational basis framework, which is deferential to the state’s asserted justifications for the policy.Footnote 46 Then, the state responds that there is a rational basis for differential treatment.Footnote 47 Often, the state offers medical evidence in support of the public health regulation,Footnote 48 though courts have indicated this is not required.Footnote 49 Sometimes, the state’s evidence is supplemented or alternatively supported by economic evidence about the necessary status of certain businesses.Footnote 50 Following this showing, the court concludes that the tailored restriction passes muster under a rational basis test,Footnote 51 though often expressing sympathy for the business.Footnote 52
In occasional cases, courts have been willing to endorse equal protection challenges and reject policies as irrational.Footnote 53 Their reasons for doing so, however, often venture implausibly into epidemiological speculation.Footnote 54
A few plaintiffs have taken a different tack, by trying to argue that the restrictions discriminate against a defined group. These arguments, however, have proven unsuccessful, either because the class in question is not subject to strict scrutiny, or because courts conclude the restrictions do not discriminate in the way described. The Sixth Circuit, for instance, recently disposed of a claim that tailored restrictions on farmworkers unfairly discriminated on the basis of race, observing that the restrictions did not target workers by race, and that consciousness that a policy will narrow health disparities does not subject a policy to strict scrutiny.Footnote 55
States could in principle ameliorate the effects of legal policies that have unequal impact by compensating businesses who lose out under the new policy, potentially coming closer to creating a Pareto-improving policy by finding a policy that is better for some and worse for none.Footnote 56 But assisting those who lose out relative to the status quo must be weighed against other ways that public funds or regulatory power might be used. Movie theater or bar owners may lose out under policies that aim to reduce the spread of COVID-19, but losing out is different from being disadvantaged in absolute terms. And courts have emphasized that there is no constitutional right to continue in one’s current occupation, whether under pandemic circumstances or otherwise.Footnote 57 As I discuss in Part IV, there are ethical reasons to be concerned about burdens on those who are absolutely disadvantaged, as opposed to those whose lives are most disrupted by COVID-19 restrictions, but it is important to consider overall burdens and to compare them to the burdens that would result under alternative policies—including the inequitable burdens of a spreading pandemic.
IV. THE ETHICS OF TAILORED POLICIES
In this Part, I explain why tailored policies, even though they treat people and activities differently, often better serve equity, prevent harm, and respect individual freedom than one-size-fits-all alternatives. Treating activities and groups who pose or face different risks identically is often neither fair nor equitable. My core point is that evaluation of tailored policies must be comparative: any problems tailored public health restrictions present must be weighed against the problems presented by one-size-fits-all “lockdown” restrictions or by uncontrolled COVID-19 spread in the absence of any restrictions.Footnote 58 Evaluation must consider burdens and benefits broadly, rather than considering only the immediate or facially obvious burdens associated with tailored policies.Footnote 59 Critics of tailored policies are often unclear about what alternative policy they believe is preferable. While defenders of untailored reopenings may prefer them over tailored policies, their arguments will typically regard tailored policies as preferable to one-size-fits-all lockdowns. Similarly, while defenders of untailored lockdowns may prefer them to tailored policies, tailored policies will be preferable from their perspective to a universal reopening. Despite facing criticism from both sides,Footnote 60 when evaluated comparatively, tailored policies are typically superior to one-size-fits-all alternatives.
In this Part, I will examine debates concerning immunity-based policies, an area legal and other commentators have discussed extensively.Footnote 61 I will also discuss recent legal scholarship criticizing mask requirements.Footnote 62 Many of the issues discussed, however, also pertain to other group-based restrictions and to activity-based restrictions.
A. Equity
1. Differential Treatment
Tailored policies explicitly treat individuals, businesses, and groups differently. This differential treatment has prompted criticism of activity-based restrictions, with some policymakers rejecting them on the basis that “[e]very single business and institution is a priority to someone,” and that it is not “the role of government to pick winners and losers.”Footnote 63 While those leveling this criticism at activity-based restrictions have primarily been conservatives and libertarians, other commentators have directed similar concerns against group-based policies that consider risk or immunity. Professors Daniel Weinstock and Vardit Ravitsky claim, for instance, that immunity “licenses clearly create a social reality of inequality, as they discriminate between those with and without immunity.”Footnote 64
Differential treatment, however, need not be inequitable, including in the COVID-19 response. Untailored policies cause or permit differential, and typically far more inequitable, impacts than tailored policies. Untailored policies will have very different effects on healthy, wealthy homebodies than on those who need to attend school, work, or obtain medical care.Footnote 65 Closure of facilities like day care centers and schools in an effort to quell COVID-19 spread imposes disproportionate harm on working parents and especially, in practice, on working women, as well as harming children who do not have access to high-quality child care alternatives.Footnote 66 Similarly, uncontrolled spread disparately harms those most medically vulnerable to poor COVID-19 outcomes if infected, those in need of medical care if health systems become overwhelmed, and people who are exposed to COVID-19 because they are in essential, often underpaid, jobs.Footnote 67 Tailored policies do not create inequality ex nihilo, but try to recognize and remediate the harm and inequality produced or threatened by the pandemic, which will often require treating people, places, and activities differently according to differences in risk. That tailored policies aim to address harms by responding to relevant, actual differences in risk undermines, for instance, the claim that vaccine certificates are analogous to literacy tests for voting, which excluded some from the exercise of a fundamental right, based on irrelevant differences, for the purpose of enacting racial exclusion.Footnote 68
Critics of immunity-based and other forms of tailored policies often overlook the reality that policies mandating facially identical treatment—such as the use of governmental power to prohibit employers and venues from considering whether someone has been vaccinated or is otherwise immuneFootnote 69—would leave different people exposed to very different levels of risk from the pandemic. For instance, Ravitsky and Weinstock’s call for “alternative ways of limiting the spread of the virus that, rather than discriminating between individuals, allow all of us to emerge safely from the stage of severe restriction through collective action”Footnote 70 does not consider whether equity may necessitate a response that discriminates—in a non-invidious sense—between individuals who face different risks. Similarly, while they argue that “policies can reduce the spread of the virus through collective approaches that redesign and expand public spaces in ways that make them safe and accessible to all by allowing physical distancing,”Footnote 71 redesigning spaces to permit distancing—while desirable—does not create equal, substantive accessibility for all. The same is true for the suggestion that “[m]easures such as the use of protective equipment, such as masks and gloves, by all would also allow everyone to emerge from confinement together.”Footnote 72 Masking and distancing are good policies because they make everyone safer, but they do not flatten preexisting inequalities in risk of infection or of poor outcomes if infected. Nor do masking and distancing alone better achieve equity than a policy response that combines them with more tailored measures.Footnote 73 And, as other critics point out, masking and distancing are themselves subject to criticism on equity grounds.Footnote 74
Ultimately, while physical distancing, expanded access to outdoor spaces, and the use of protective equipment are undoubtedly desirable, they are not alternatives to tailored policies, and are insufficient on their own to address the inequitable burden of the pandemic. Just as speed limits and safer street designs can and should be coupled with tailored policies like driver’s licenses and efforts to prevent intoxicated driving, distancing and protective equipment can and must be combined with tailored policies. Masks alone will not “allow everyone to emerge from confinement together;”Footnote 75 people at higher risk of infection or of poor outcomes will still have good reason to stay at home. The same critique applies to commentators who complain about government “picking winners and losers.”Footnote 76 The risk of transmitting COVID-19 is higher at a bar than an outdoor playground, and if policies do not respond to these facts, they will allow COVID-19 to pick far more losers than a tailored policy would have, and to pick those losers disproportionately from those who are most vulnerable to infection and to poor outcomes.Footnote 77
Related to the complaint of differential treatment is the protest that certain tailored policies take an unacceptably individual lens. One critique, for instance, argues that “[s]trategies that focus on the individual—using conceptions of ethics rooted in libertarianism—contradict the mission of public health,” and “distract attention from actions that benefit all, such as funding international collaborations, practising effective public-health measures and redressing income inequity.”Footnote 78 This critique is aimed at immunity licensing policies, but would seemingly sweep more broadly to include any policy that attempts to address spread at an individual level. But it is unclear why tailored policies distract from, rather than complement, other policies such as international collaboration or income support for individuals facing pandemic poverty. Regulations requiring evidence of immunity to engage in certain risky activities hardly seem libertarian, and benefit others by slowing the spread of infection while permitting economic activity. Furthermore, a natural complement for immunity-based policies would be income support for those economically disadvantaged because they are excluded from risky activities.Footnote 79
Another critique similarly rejects “strategies focusing on the individual,” but praises the “established public health practices of testing, contact tracing, quarantine of contacts, and isolation of cases.”Footnote 80 Yet, all the interventions praised are individual: individuals are the ones who are tested, whose contacts are traced (or who are themselves the traced contacts), and who are quarantined or placed in isolation. The same is true of vaccination and masks, which, even if mandated, must ultimately be adopted by individuals.Footnote 81 Ultimately, the individual/societal distinction is a false dichotomy—given the impossibility of somehow destroying COVID-19 outside of individuals’ bodies, interventions to slow or stop viral spread will ultimately have to proceed via individuals.Footnote 82 Equity does not require identical treatment; it requires that individuals receive societal and institutional support that responds to their situation.
2. Exacerbation of Preexisting Inequities
Rather than merely criticizing tailored policies for treating individuals differently, some charge that they will harm those who are already disadvantaged.Footnote 83 These criticisms, however, also require a comparative analysis. Consider, for instance, the claim that mask or vaccination mandates should not be enforced using fines, because fines disproportionately burden the poor.Footnote 84 Even if fines can create disparate financial burdens, they may nevertheless promote equity overall if they reduce the spread of COVID-19, given the disparate burden of COVID-19 in poor communities.Footnote 85 Fines may also be less burdensome than alternative penalties, such as “employment suspension or stay-at-home orders for persons in designated high-priority groups who refuse vaccination.”Footnote 86 Rather than jumping to the claim that fines should never be used, it would be preferable to first consider whether fines could be designed to equitably consider differences in individuals’ financial circumstances.Footnote 87
Others have complained that certain tailored policies, such as immunity certification, will unfairly disadvantage individuals who are already economically or socially disadvantaged.Footnote 88 For instance, if unvaccinated individuals are required to attend virtual church services or fitness classes, or to pick up restaurant orders curbside, they may feel excluded from valuable social interactions and opportunities to see friends and family. And if they are not allowed to preach, teach fitness classes, or work in restaurants, they may be harmed economically. Yet, under a one-size-fits-all closure, unvaccinated individuals would be no freer to pursue these activities. The only advantage for them would be relative—nobody else would be able to do these things.Footnote 89 And it’s unclear that this relative advantage would leave unvaccinated people better off overall. Individuals at high risk might gain personally and economically in absolute terms from others being able to do what they cannot. For instance, high-risk individuals could have loved ones pick items up for them, run errands, or provide other forms of support.Footnote 90 Meanwhile, absent closures, high-risk individuals would be subject to greater risk of bad medical outcomesFootnote 91—safe participation in many activities will be de facto contingent on one’s personal risk, whether or not that risk is de jure codified by immunity certification or other tailored policies.
It is also worth noting that basing immunity certification on prior infection rather than only on vaccination may ameliorate rather than exacerbate inequities, because individuals in disadvantaged communities are more likely to have already been infected.Footnote 92 This point is relevant to recently raised concerns that immunity-based policies may increase economic inequality by rewarding “those who could afford the care needed to survive.”Footnote 93 While it is crucial to address background injustices that generate inequitable access to care, declining to enact immunity-based policies will not help address inequities between people who survive and those who do not: people who do not survive COVID-19 cannot work or participate in social activities, whether or not immunity-based policies are enacted. In contrast, while immunity-based policies also cannot redress inequities in survival, they could avoid leaving survivors of COVID-19 infection subject to restrictions that may be disproportionate to their present risk of contracting or spreading infection.Footnote 94
A different concern about the exacerbation of disadvantage relates to costs—in particular, the cost of testing for policies that require negative infection tests, or of vaccinations and antibody tests for policies based on immunity. Vaccines—and increasingly testing—are available at zero cost in the United States and many other countries because the social benefits of access to these interventions are large.Footnote 95 But even a tailored policy that depends on tests or vaccines to which access is unequal might still improve equity, relative to feasible untailored alternatives, by slowing the spread and disparate harm of COVID-19 relative to a policy without restrictions and by permitting more economic activity than a policy with untailored restrictions.
As discussed above, it is also doubtful whether strict, untailored restrictions on low-risk people—for instance, on people who have been vaccinated—even if inequality in access remains, would pass muster legally or be consistent with core principles of public health law and policy. For instance, it seems difficult to legally or ethically defend restrictions on at-home or religious worship gatherings comprising only vaccinated people, or the subjection of vaccinated people to interstate or international travel quarantines.Footnote 96 Such restrictions are justified when they substantially reduce the risk of death or harm to others. They are not obviously justified as a way of enforcing de jure identical treatment of people whose risk profiles are de facto very different, even in service of equity goals. I therefore disagree with the claim that “we shouldn’t even be talking about vaccine passes until we get to the point where everyone in all communities who want the vaccine have an equal chance of being able to get it.”Footnote 97 Access to many goods and capabilities—ranging from driving to housing to education—is not as equal as it should be, but depriving everyone of the benefits of unequally distributed goods or ignoring factual differences in risk may neither respect individuals’ liberty interests nor ultimately serve equity.
Some raise a different worry, about exploitation of the disadvantaged rather than their exclusion.Footnote 98 Ravitsky and Weinstock, for instance, claim that “when a regime of immunity licenses is introduced into a context of structures of disadvantage, those holding them would find themselves subject to pressures to continue to occupy poorly remunerated and insecure jobs now deemed necessary, as those more advantaged now work comfortably from home.”Footnote 99 While this argument is directed at infection-based immunity licenses, it would also seemingly apply to vaccine-derived immunity licenses.Footnote 100 Yet, this argument faces two major problems. First, tailored policies do not force people to engage in activities, but only permit them to do so. Analogously, many people are permitted to obtain driver’s licenses, but elect not to obtain them. Second, even though background inequities may create disparate pressures to take risks, prohibiting tailored policies does not effectively address those pressures. Consider the problem Ravitsky and Weinstock associate with tailored policies, that of “poorly remunerated and insecure jobs.”Footnote 101 One-size-fits-all closures simply replace that problem with the problem of unemployment, while untailored reopening means that people at high risk of infection end up working in these jobs.Footnote 102 Refusing to issue immunity licenses would not achieve equity or persuade well-off people to work as grocery cashiers; rather, poorer people who are not immune will be likely to work in these jobs and expose themselves to infection.Footnote 103 A better approach would be to work for improved labor policies and protections in tandem with tailored policies that calibrate permitted activities to risk.
When assessing concerns about the exacerbation of existing inequities, conjectural inequities resulting from tailored policies must be weighed against the real and present inequities flowing from untailored policies. One recent commentary argues that “[r]equiring or encouraging immunity verification for employment, housing, education, or even for entering a movie theater or shopping center could lead to an increase in testing, and thus a compounding of the privacy harms related to testing.”Footnote 104 While increased testing can have privacy risks, testing also produces health and equity benefits by helping individuals learn whether they are infected and by stemming the spread of a pandemic with inequitable effects. The same weighing applies to the concern that “[i]mmunity passport or verification programs could create a lasting shift in social norms, laying the groundwork for future programs that use genetics or health status as conditions for accessing certain rights and privileges.”Footnote 105 Concerns about shifting social norms would seemingly apply to any COVID-19 policy: one could equally argue that business closures, mask mandates, or travel restrictions in response to COVID-19 could lay the groundwork for future restrictions for other reasons. The specific suggestion that tailored COVID-19 policies might encourage future programs to condition rights on genetics or health status is also questionable.Footnote 106 Programs—such as driver’s licensing and employee vaccination requirements—already condition participation in certain activities on health status.Footnote 107 But they also require that the conditions be relevant to the activities at issue and that reasonable accommodations be made for those unable to participate.Footnote 108 Tailored COVID-19 policies should be similar.
3. Inconsistency with Deservingness
Others understand equity as responding to individual choice or deservingness, and argue that tailored policies treat individuals differently based on unchosen differences.Footnote 109 Hank Greely, for instance, argues that immunity-based policies are not grounded in “any kind of merit or positive actions, but … something that most people will have had little or no control over—who has, and who has not, contracted COVID-19.”Footnote 110 Greely further opines that critics of such policies “will be right” and that while immunity-based policymaking “may make sense in terms of protecting people and their societies from the worst ravages of SARS-CoV-2 … it will not be fair.”Footnote 111 This critique of immunity-based policies echoes complaints made about activity-based restrictions.Footnote 112
Though Greely does not explain in depth why immunity-based policies are unfair, his references to “merit or positive actions”Footnote 113 and individual control suggests he believes fairness requires looking backward to ensure that differential treatment or outcomes reflect individuals’ past meritorious, or at least voluntary, choices. Many others have similarly endorsed “responsibility-catering,” “desert-catering,” luck-neutralizing, or “meritocratic” accounts of fairness.Footnote 114
Do tailored policies violate these backward-looking conceptions of fairness? I argue that they need not do so, and that the backward-looking conceptions are, in any event, normatively questionable. First, just as tailored policies are not the fundamental source of inequality, they are not the fundamental source of outcomes that fail to track desert. The blame lies with the virus, which does not apportion its harmful effects in proportion to desert. Even without tailored policies, people who are immune would factually be freer to take risks without becoming infected, while those not immune would be in danger through no fault of their own.Footnote 115 Meanwhile, unlucky high-risk businesses would face similar problems without tailored policies. Many people are not interested in dining indoors, sitting in movie theaters, or flying on airplanes, restrictions or no restrictions.Footnote 116
Second, the idea that fairness must look backward is dubious. Many policies outside the COVID-19 context treat individuals differently based on unchosen differences, to achieve forward-looking goals: for instance, requiring a license to drive treats individuals who are unable to drive differently from others.Footnote 117 More generally, economic goods are not generally distributed on the basis of past merit.Footnote 118 Many people labor skillfully to develop products and services that ultimately fail because of bad luck.Footnote 119 Similarly, if a firm’s bad luck leads it to provide a service or product that proves unsafe, it has no legal entitlement to compensation when that product is removed from the market.Footnote 120
That fairness need not look backwards is fully consistent with assisting people who find themselves in genuine need, irrespective of judgments about their control over their circumstances. One compelling way of meeting these genuine needs draws on the political theorist Professor Elizabeth Anderson’s idea of “democratic equality.”Footnote 121 Anderson’s goal is to ensure that all people are able to participate equally as citizens, for instance by voting and participating in civil society.Footnote 122 Under Anderson’s democratic equality approach, the goal should be to prevent the social and economic exclusion of people who are at risk of spreading or contracting COVID-19, not to restore those people to the position they would have been in had the pandemic never happened or to treat everyone identically. This approach has implications for tailored policies: in some cases, equal citizenship may require permitting everyone to participate in a risky activity, like in-person voting. But in most cases, equal citizenship is compatible with alternative modes of participation, such as remote access or takeout dining.Footnote 123
An equal citizenship approach also implies that, while society should ensure the provision of a decent minimum, it need not cover the losses professional athletes or musicians incur when large venues are closed due to COVID-19,Footnote 124 or to equalize economic outcomes between those who are and are not subject to tailored restrictions. It also undercuts the idea that fairness requires compensating businesses that are required to close.Footnote 125 Businesses may have legal personhood, but they are not entitled to equal citizenship, nor are their investors entitled to protection against economic change.Footnote 126 Accordingly, society should neither accept pandemic harms to protect existing businesses, nor financially bail out businesses beyond what is necessary to prevent unemployment or destitution for individuals.Footnote 127
Criticisms of backward-looking frameworks also apply to the argument that “corporate entities” may become “the beneficiaries of the immunocapital of workers” if tailored policies based on immunity are adopted.Footnote 128 There is no obvious reason why a firm’s profiting from a worker’s “immunocapital” is different from its profiting from a basketball player’s height, a trucker’s skill in driving, or a deep-sea diver’s willingness to take risks.Footnote 129 The emphasis should be on be fair compensation for all jobs, not an exceptionalist concern about undeserving actors profiting from their own, or others’, immunity or health status.
4. Inequitable Enforcement
Rather than—or in addition to—arguing that tailored policies, such as mask requirements and immunity certification, are inequitable in principle, many argue that they will be inequitably enforced in practice.Footnote 130 This concern, while important, applies even more seriously to the enforcement of untailored policies. Meanwhile, non-enforced policies trade inequitable enforcement for the much worse problem of an uncontrolled pandemic with starkly inequitable effects.
First, untailored restrictions are likely to require a larger scale of enforcement than tailored ones. Dr. Natalie Kofler and Professor Francoise Baylis observe that that Black New Yorkers were disproportionately subject to arrest by officers enforcing physical distancing.Footnote 131 This observation makes it striking that Kofler and Baylis avoid any criticism of physical distancing and instead direct their criticism at tailored policies that might reduce the need for physical distancing.Footnote 132 The same is true for concerns about inequity in tailored policies. For instance, if businesses are entirely closed, unauthorized economic interactions and gatherings will still take place, presenting the choice of whether to enforce limitations—potentially inequitably—or accept unchecked spread.
Meanwhile, though abandoning public health restrictions avoids the risk of inequitable enforcement, it inflicts hugely disparate death, illness, and economic harm on the least advantaged. The disparate harms of the COVID-19 pandemic should be remembered when evaluating the equity effects of tailored policies that aim to quell the pandemic, including not only immunity-based policies but also mask requirements. An initial critique of mask requirements frames these requirements as presenting a choice between “efficacy”—reducing the spread of COVID-19—and avoiding unjust discrimination against Black Americans who wear masks.Footnote 133 It ultimately concludes that “a mask requirement, while potentially effective, very likely will lead to unchecked racial discrimination and add to the unfair burden of this pandemic on racial minorities, especially Black Americans,” and so argues that “a mask recommendation is the better solution for now” and that “the likelihood of increased racial discrimination undercuts the public health justification for a mask requirement.”Footnote 134 This analysis is inadequate. In light of the disparate burden of COVID-19 in Black and other minority communities,Footnote 135 a mask mandate is likely to advance not only efficacy, but also equity, and to decrease rather than increase the unfair burden of the pandemic. Significantly, a majority of Black poll respondents during the introduction of mask mandates supported or strongly supported them and did so at a greater rate than white respondents.Footnote 136
Concerns about disparate enforcement of mask mandates against people with disabilities similarly appear inadequate to justify abandoning mandates rather than equitably enforcing them. A group of scholars argued that, even though “mask recommendations are unlikely to result in the same degree of mask-wearing as would mask requirements and, therefore … are not as likely to slow the spread of the virus as would mask requirements … the risk of uninformed and discriminatory enforcement of mask requirements against people with disabilities undercuts the justification for mask requirements.”Footnote 137 This argument overlooks the likelihood that disparate risk from COVID-19 spread justifies mask requirements on equity grounds, even though its supporters recognize the disparate risk that COVID-19 spread presents to people with disabilities.Footnote 138 While “[m]ask recommendations, unlike requirements … eliminate the need for an enforcement mechanism and thereby substantially reduce the risk that a person with a non-obvious disability is faced with inappropriate or intrusive questioning,”Footnote 139 replacing enforceable requirements with recommendations may substantially increase the risk that people with disabilities contract, are hospitalized for, and die of COVID-19.Footnote 140 This striking downside of mask recommendations presents a compelling comparative equity case for imposing mask requirements, while coupling those requirements with education on appropriate enforcement and with accommodations for those medically unable to wear masks. It is therefore unsurprising that disability advocates and people with disabilities have spoken in support of mask requirements.Footnote 141
Inequitable enforcement and over policing are dangers for a plethora of governmental policies, including business closures and public health requirements outside the COVID-19 context such as driver licensing and food safety. Yet the proper response to inequitable enforcement is to improve equity in enforcement, not to abandon public health efforts for fear of inequitable enforcement. While it may pose a danger of inequitable enforcement, a mask mandate—even if imperfectly enforced—is better able than a mere recommendation to prevent the much more inequitable and harmful outcome of disproportionate deaths from COVID-19 in Black and other minority communities and among people with disabilities.Footnote 142
While—given the immensely inequitable harms of untailored policies—concerns about inequitable enforcement are an insufficient reason to abandon tailored policies, equitable enforcement remains important. Equity might be better realized by training officials on various types of bias and having enforcement conducted by specialized officials, rather than purely or primarily by police.Footnote 143 Public health inspections are used routinely in other settings, like restaurants, and can be consistent with equity.Footnote 144 Imposing substantial penalties for a failed inspection, and making the inspections unpredictable, could help deter violations without requiring as many enforcement actions.Footnote 145 Businesses could also be incentivized to self-enforce tailored policies, just as the law incentivizes bars to prevent underage drinking.Footnote 146 The requirement to show an ID to enter a bar is not regarded as unacceptably inequitable or divisive.
B. Harm Prevention
Tailored policies have been criticized for imperfectly preventing harm because they rely on uncertain and changing information about risk, and for incentivizing counterproductive behavior or fraudulent claims. This Part considers those arguments.
1. Uncertainty
A common criticism of tailored policies is that because policymakers cannot be certain that some activities or groups are lower-risk, drawing distinctions based on uncertain information presents an unacceptable risk of harm.Footnote 147 This argument has been used to justify untailored closures and safety measures, such as the closure of playgrounds or continued emphasis on strict surface hygiene.Footnote 148 It has also been used to criticize the use of imperfect antibody tests in immunity-based policies,Footnote 149 and to criticize group-based policies based on imperfect proxies for risk, such as age.Footnote 150 More recently, it has been used to criticize the use of vaccine certification as a prerequisite for travel.Footnote 151
Uncertainty, however, is an insufficient justification for untailored policies. Overly strict untailored policies are likely to produce harm by leading people to make all-or-nothing rather than harm-reducing choices about risk. If policies close playgrounds or outdoor dining, they may lead people to congregate indoors at home with fewer precautions.Footnote 152 If people are told that antibody tests or age tell them nothing about their own risk, they may send their 75-year-old grandmother to do necessary grocery shopping rather than sending the 25-year-old grandson who tested positive for antibodies. If policies prevent vaccinated people from flying, those people are deprived of valuable experiences, like seeing family members, for little benefit. Meanwhile, lenient untailored policies—such as letting anyone fly to countries where COVID-19 spread has been stopped—would clearly produce harm by permitting COVID-19 spread.Footnote 153
Although tailored policies will inevitably fail to perfectly track the risks presented by activities or groups, imperfection is pervasive and is recognized as acceptable in other areas of policy. Some restaurants that fail sanitation spot-checks may be safer than some that pass; some drivers who fail driver’s tests may be better drivers than others who pass; some medical graduates who fail board exams may be better than some who pass. Yet, restaurant inspections, driver’s licenses, and professional licenses are acceptable despite their imperfections. Likewise, tailored policies need not be perfectly accurate, so long as there is reason to believe they are predictive of the outcomes they are attempting to assess and take steps to avoid replicating preexisting disadvantage.Footnote 154 Demanding greater accuracy may also present tradeoffs with other benefits, such as speedily returning results.Footnote 155
2. Incentives
Some worry that COVID-19 policies will create an incentive for risk compensation: as tailored policies make risky activities safer, people will pursue those risky activities more often.Footnote 156
The concern about incentives is most plausible for infection-based immunity policies, which could create incentives to infect oneself to become immune.Footnote 157 A variety of strategies have been proposed to counter or dampen these incentives, including subsidies for people who must stay at home, penalties for self-infection, and encouragement not to self-infect.Footnote 158 The advent of vaccines, however, makes this concern less salient.Footnote 159
Other people raise the risk compensation concern at the institutional level: they complain that exempting lower-risk individuals from some or all restrictions will discourage governments from taking other steps to limit the spread of COVID-19.Footnote 160 Professor Alexandra Phelan, for instance, suggests that tailored policies that treat immune individuals differently from non-immune ones “risk alleviating the duty on governments to adopt policies that protect economic, housing, and health rights across society by providing an apparent quick fix.”Footnote 161 This is a false dichotomy. Immunity-based policies no more prevent the policies Phelan advocates for than driver licensing prevents efforts to improve road safety or improve the quality of medical care for accident victims.Footnote 162 Society can work to protect people from COVID-19 in the short term by preventing the worst outcomes, even while pursuing other steps like economic support for the least advantaged or research into improved therapeutics or vaccines.
Last, some worry about incentives for fraud. These concerns have most often been raised about immunity-based policies,Footnote 163 but could also apply to policies based on current infection or lying about past travel or business activities.Footnote 164 This problem is not unique to COVID-19 policy: it applies to every social policy, from vaccination to passports to driver licensing to diplomas. Fraud exists in all of these systems, as do strategies for combating fraud, but in none of these cases are fraud concerns regarded as sufficient to justify abandoning the policy.
C. Liberty
Some criticisms of tailored restrictions allege that they will cause lurid deprivations of basic freedoms. Kofler and Baylis, for instance, ask us to “[i]magine a world where your ability to get a job, housing or a loan depends on passing a blood test. You are confined to your home and locked out of society if you lack certain antibodies.”Footnote 165 Other critics of immunity-based restrictions frame them as generating a “two-tiered society” where “[o]ne group has access to jobs and public places, one doesn’t,” and frame the policy question as whether we should “make participation in society depend upon immunity status” or condition “societal participation on taking a vaccine that’s not fully vetted.”Footnote 166 This is an implausible picture of immunity-based restrictions, whether immunity is derived from past infection or from a vaccine. It is similarly an implausible picture of other group-based restrictions and of activity-based restrictions.Footnote 167
A more realistic understanding of tailored policies is that certain groups of people—those not yet infected or unable or unwilling to be vaccinated, those unable or unwilling to wear masks—would be accommodated differently in some high-risk settings. They would not be barred from employment or social activity, but they might be unable to work as a nanny or a dental hygienist;Footnote 168 they would not be confined to their homes, but they might have to get take-out from restaurants rather than eating inside or attend large gatherings remotely rather than in person. These policies do limit liberty for the vulnerable directly, by limiting the ability to engage in certain activities. But they enhance liberty indirectly, by reducing the spread of COVID-19 and by reducing the risk of death, the most serious deprivation of liberty. Returning to a point made above,Footnote 169 everyone, and especially those at high risk, will have their liberty seriously limited by government inaction—rather than government action—if COVID-19 spreads uncontrollably. And their liberty will be even more limited by untailored closures and restrictions than by tailored ones.
As vaccines become more widely available, and evidence that they reduce transmission improves, relaxing restrictions for vaccinated people becomes increasingly compelling both legally and ethically.Footnote 170 Kofler and Baylis nevertheless argue that seeking to “jump-start flailing economies” or provide “some semblance of a ‘normal’ pre-Covid life which includes international travel” are inadequate bases for policies that differentiate vaccinated from unvaccinated people, and that motivations for vaccination certificates “rooted in neocapitalism and individual liberalism are at odds with public health ethics.”Footnote 171 Permitting other policies, such as tax policy or macroeconomic policy, to be grounded in capitalist motivations while rejecting the use of vaccination certificates would be an odd exceptionalism. Furthermore, economic recovery benefits ordinary people whether or not they hold capital.Footnote 172 And rejecting individual liberalism—a core value in most democracies—as a basis for permitting vaccinated people to engage in activities is even less plausible. Kofler and Baylis appear to suggest that the only legitimate basis for vaccination certificates is “to assist public health with the overarching goal of reducing viral transmission.”Footnote 173 But even if allowing a vaccinated person to visit her children, attend a Broadway musical, or go on a religious pilgrimage would not reduce viral transmission, blocking her from doing so is difficult to justify when her travel would be unlikely to increase viral transmission and would serve important aims she reasonably wishes to pursue.Footnote 174 Public health ethics and law recognize that better public health is not the only outcome that matters.Footnote 175
Alternatively, activity- and group-based policies might be criticized as a paternalistic intrusion on people’s right to choose their own level of acceptable risk.Footnote 176 People at high risk are typically permitted to engage in risky activities, such as contact sports, though the law permits employers to exclude them based on an individualized risk assessment.Footnote 177 Those who become infected with COVID-19, however, place not just themselves, but others at risk, undermining the suggestion that “everyone gets to weigh the risks for themselves.”Footnote 178 First, COVID-19—unlike sports injuries—is contagious. Second, COVID-19 outbreaks overwhelm health systems, while sports injuries typically do not. Both of these factors mean that people who take COVID-19 risks also pose risks to others.
V. CONCLUSION
Tailored policies try to identify the activities and people at greatest risk of suffering and causing harm due to COVID-19 infection. They have been widely adopted and even more widely proposed. But they have also been widely criticized, and those criticisms have often stymied their adoption or persistence. I have argued that the law rarely proscribes tailored policies, and increasingly often requires them. I have also argued that ethical critiques of tailored policies need to compare their potential deleterious consequences to the deleterious consequences of feasible, and often actual, alternatives. Those who enact tailored policies often open themselves up to blame for causing inequality and harm or depriving people of liberty, particularly when those policies invariably prove imperfect—as all policies are. But that blame is often misdirected. Even when these policies directly cause inequity or harm, or limit liberty, they often directly and indirectly serve to prevent far greater inequities, harms, and losses of liberty. Analysis of tailored policies must make these comparisons, rather than blaming the messenger.
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