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Public Health as If People Mattered
Published online by Cambridge University Press: 06 February 2025
Abstract
This essay offers a framework for analyzing whether government may justifiably intervene to contain the spread of disease. Nonconsensual transmission of dangerous pathogens is an inherently violent act. This framework therefore justifies government public health activities for the same reasons and only to the same extent as other government activities. Government public health interventions are legitimate only to the extent they minimize the amount of violence in society. Violence-minimization is a more egalitarian and welfare-enhancing rule than, for example, a rule prescribing that government public health activities should minimize loss of life.
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33 This essay defines violence to mean touching another or using physical barriers to confine another, even if no touching occurs, without consent. Under this definition, an act can inflict no physical harm yet still be violent because it violates another’s person autonomy. This definition is admittedly broad enough to encompass “touching” as innocuous as the electromagnetic radiation or sound waves that all human bodies emit.
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35 Kimberly Kindy, Shayna Jacobs, and David A. Fahrenthold, “In Protests against Police Brutality, Videos Capture More Alleged Police Brutality,” The Washington Post, June 5, 2020, https://www.washingtonpost.com/national/protests-police-brutality-video/2020/06/05/a9e66568-a768-11ea-b473-04905b1af82b_story.html; Shawn Hubler and Julie Bosman, “A Crisis That Began With an Image of Police Violence Keeps Providing More,” The New York Times, updated March 11, 2021, https://www.nytimes.com/2020/06/05/us/police-violence-george-floyd.html.
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37 The federal government lists the failure to pay federal taxes among forms of “significant domestic terrorism.” 26 U.S. Code § 7203; U.S. Federal Bureau of Investigation and U.S. Department of Homeland Security, “Strategic Intelligence Assessment and Data on Domestic Terrorism,” May 2021, https://www.dhs.gov/sites/default/files/publications/21_0514_strategic-intelligence-assessment-data-domestic-terrorism_0.pdf, 29.
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53 Adults routinely consent to disease-transmission risks, such as by visiting crowded areas and engaging in sexual activity. When adults give informed consent, such risks do not violate autonomy.
54 The violence is no less real, even if it is inadvertent.
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57 FY2022 CDC gross outlays: $16.5 billion. FY2022 total federal outlays: $6.3 trillion. U.S. Office of Management and Budget, Budget of the U.S. Government: Fiscal Year 2024, 152, 488, https://www.whitehouse.gov/wp-content/uploads/2023/03/25-1_fy2024.pdf.
58 U.S. Office of Management and Budget, Budget of the U.S. Government: Fiscal Year 2024, 135.
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60 Kelly Gooch, “Vaccine Mandates Have Hospitals Concerned about Staffing,” Becker’s Hospital Review, September 13, 2021, https://www.beckershospitalreview.com/workforce/vaccine-mandates-spur-staffing-worries-at-hospitals.html.
61 When governments condition services or subsidies on certain behaviors, they introduce no additional physical violence. Such conditions are no different from any other party to a transaction withholding its consent to that transaction. Even when a condition is unpopular, painful, or unconstitutional, government is not employing or threatening physical violence against those to whom the conditions apply. Due in part to the far greater difficulties in measuring nonviolent forms of pressure—i.e., duress—this essay defines and focuses on coercion in the sense of physical force. Note, however, that to the extent a nonviolent condition is so unjust and/or so painful that it would trigger a violent response from civilians, government officials would enter those effects into the balancing test this essay offers.
This position is not unassailable: withholding life-saving medical care feels coercive. Assailants face a challenge, however. If one sweeps into one’s definition of coercion, force, or violence the use of economic consequences to change another’s behavior that do not involve nonconsensual touching or physical barriers, one faces two possibly untenable options. The first is to consider every increase in every price of every good and service and every refusal to bargain to be coercion, force, or violence. (Every price increase threatens economic consequences against consumers who do not give producers more money than before: they no longer get the good or service. Every refusal to deal is an economic consequence that implicitly seeks to get the other party to accept a different price.) The second option is to furnish a rule that tells where noncoercive material incentives end and coercive material incentives begin. Hard cases (“refusing water to a man dying of thirst”) are easier to locate than is a limiting principle. Focusing on nonconsensual touching and physical barriers, as this essay does, avoids such difficulties.
Assailants are not wrong to seek validation of their intuition that threatening to withhold Medicare subsidies from hospitals with unvaccinated workers, which could well lead to loss of life, is coercive. The coercion they seek perhaps lies not in that condition per se, but in the coercive taxes that are so extensive that they make the economic consequences of such conditions so severe; that makes tens of millions dependent on Medicare for medical care.
62 Mary Beth Keane, “The History of Quarantine Is the History of Discrimination,” TIME, October 6, 2014, https://time.com/3474945/politics-quarantines-typhoid-mary-ebola/.
63 Lanzarotta and Ramos, “Mistrust in Medicine,” 743.
64 Harold Pollack, “Why Public Health Experts Aren’t Reaching Conservatives on Covid,” Politico, August 12, 2021, https://www.politico.com/news/magazine/2021/08/12/conservative-public-health-covid-conservative-affirmative-action-503448.
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66 Keane, “The History of Quarantine.”
67 Alexandra Marvar, “How New York Separated Immigrant Families in the Smallpox Outbreak of 1901,” Smithsonian Magazine, January 10, 2019, https://www.smithsonianmag.com/history/how-new-york-separated-immigrant-families-smallpox-outbreak-1901-180971211/.
68 “States’ COVID-19 Public Health Emergency Declarations,” National Academy for State Health Policy, updated June 13, 2023, https://nashp.org/states-COVID-19-public-health-emergency-declarations/; Juliette Cubanski et al., “What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access,” Kaiser Family Foundation, January 31, 2023, www.kff.org/coronavirus-COVID-19/issue-brief/what-happens-when-COVID-19-emergency-declarations-end-implications-for-coverage-costs-and-access/.
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74 Matthew D. Mitchell, Thomas Stratmann, and James Bailey, “Raising the Bar: ICU Beds and Certificates of Need,” Mercatus Center policy brief, April 29, 2020, https://www.mercatus.org/research/policy-briefs/raising-bar-icu-beds-and-certificates-need.
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77 Jeffrey A. Singer and Michael F. Cannon, “Drug Reformation: End Government’s Power to Require Prescriptions,” Cato Institute, October 20, 2020, https://www.cato.org/white-paper/drug-reformation-end-governments-power-require-prescriptions.
78 Paul Fronstin and Stephen A. Woodbury, “Update: How Many Americans Have Lost Jobs with Employer Health Coverage during the Pandemic?” The Commonwealth Fund, January 11, 2021, https://www.commonwealthfund.org/blog/2021/update-how-many-americans-have-lost-jobs-employer-health-coverage-during-pandemic; Michael F. Cannon, “End the Tax Exclusion for Employer‐Sponsored Health Insurance: Return $1 Trillion to the Workers Who Earned It,” Policy Analysis no. 928, Cato Institute, May 24, 2022, https://www.cato.org/policy-analysis/end-tax-exclusion-employer-sponsored-health-insurance-return-1-trillion-workers-who.
79 Sarah Kliff, “Why the Sickest Workers May Be among the First Back on the Job,” New York Times, June 18, 2020, https://www.nytimes.com/2020/06/18/upshot/coronavirus-health-insurance-sickest-workers-return.html.
80 Cannon, Michael F. and Pohida, Jacqueline, “Would ‘Medicare for All’ Mean Quality for All? How Public‐Option Principles Could Reverse Medicare’s Negative Impact on Quality,” Quinnipiac Health Law Journal 25, no. 2 (2022): 181–258, https://www.cato.org/sites/cato.org/files/2022-04/cannon-qhlj-v25n2.pdf Google Scholar.
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82 Steve Burrows, “We Deserve to Know Infection Rates,” Morning Consult, September 11, 2020, https://morningconsult.com/opinions/we-deserve-to-know-infection-rates/.
83 Maani and Galea, “COVID-19 and Underinvestment.”
84 Iddiols and Shelley, “Violent Clashes Erupt”; “Protest against Coronavirus Restrictions”; Ellyatt, “Protests against Covid Rules”; McDonell, “China Zero Covid.”
85 Steven Charles Buckingham, Saints, “Savages,” and Smallpox: Epidemic Disease and the Colonization of New England, 1616–1637 (master’s thesis, University of Memphis, 2012), 65, https://digitalcommons.memphis.edu/cgi/viewcontent.cgi?article=1530&context=etd.
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91 Greenough, “Intimidation, Coercion, and Resistance,” 643.
92 Long, “Mary Mallon and Typhoid Fever,” 38.
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94 Long, “Mary Mallon and Typhoid Fever,” 44.
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96 Watson, Oliver J. et al., “Global Impact of the First Year of COVID-19 Vaccination: A Mathematical Modelling Study,” The Lancet Infectious Diseases 22, no. 9 (2022): 1293–1302, https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(22)00320-6/fulltext Google ScholarPubMed.
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99 Jon Cohen, “The United States Badly Bungled Coronavirus Testing—but Things May Soon Improve,” Science, February 28, 2020, https://www.science.org/content/article/united-states-badly-bungled-coronavirus-testing-things-may-soon-improve.
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