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Defining liberty when it comes to vaccinations

Daniel H. Stewart
Daniel H. Stewart

There are few topics I am more hesitant to touch than health care. Personal medical decisions are the most sensitive and individually specific as any we make. And after more than a year of death and disruption, shut-downs and shut-ins, quarantines and quarrels, many of us are as exhausted as we are annoyed with the COVID conversation. Global pandemics, though, have a way of making all issues health-related, whether we want that or not.

Early on, it was the unanswered COVID questions that haunted us. How deadly? How long? How come? Nowadays, COVID is a familiar foe, its mystery sapped by personal experience and unrelenting reminders. The microscopic became the ever-present. By summer of 2021, COVID felt less like the deadly trap we learned to give a wide berth, and more like the squeaky step we promise to fix each time we avoid it.  For some, COVID honestly remains the scariest thing they face — maybe the scariest thing they have ever faced, with the fear of death looming over everyday life. Others are sincerely afraid or concerned, but not of the virus. They fear the consequences of the response: lost jobs, social blockades, closed schools and churches, less freedom, more uncertainty.  

Whether you primarily fear the virus or the response, your worries are real, and made worse by a feeling of terror that everything you hold dear is at risk. Given these stakes, of course the debates over COVID eventually settled into well-worn ideological and political  footpaths. We are all predisposed to shape the facts we encounter to the world-views we already have. But yelling at those who fundamentally disagree is no more effective than arguing in a language no one else understands. 

The war against COVID has many fronts, and the debate over COVID policy wears many faces. But for the purposes of this article, I am really only concerned with two immediate questions: (1) whether everyone possible should get the vaccine, and (2) whether not getting it is itself a principled stand for liberty. In addressing both questions, I start from the assumption that the COVID vaccines significantly reduce the chances of death or serious injury in those who are vaccinated. 

The answer to the first question is easy. Yes. Everyone whose health allows, and who does not have a sincere religious or conscience objection, should get vaccinated.  Admittedly, I am not a scientist or a medical expert. COVID vaccination is a painful subject that has already divided family and friends in my life. That said, my day job requires me to weigh evidence and do risk analysis all the time. My conclusion: as many people as possible should get vaccinated. 

It is the second of my two questions that is more interesting and more difficult to answer. In what way, if at all, are vaccine refusers also freedom fighters? 

I do not support a government vaccine mandate, nor do I even know how such a mandate could be enforced fairly and equally. Getting vaccinated must remain a personal commitment. So no, I am not asking about general resistance to state control, but about voluntary choices, where “could” and “should” are two separate things. On those grounds, I pose the question again: Is the no-vax decision itself (and not just the freedom to choose) a pro-liberty position? 

No. At least not on balance. And those claiming otherwise likely are charting the path to their conclusion with an incomplete calculation. They likely are focusing exclusively on the liberty of the person refusing the vaccine while ignoring the obligations such a choice forces on others, who also wish to be free. In addition to the severe restrictions on and interruptions to normal life that we all will bear as long as COVID remains a threat, individual choice may coerce others into unwilling service. Indeed, the individual freedom to refuse the vaccine assumes and requires the legal and moral coercion of countless others. 

How so?

If you refuse the vaccine on the grounds of liberty, can hospitals refuse to admit you? Can doctors or nurses refuse to see or treat you? Can employers refuse to hire or retain you, vendors refuse to use your services, businesses refuse to serve you, regulators refuse to license you, patrons refuse to visit you, friends or family refuse to associate with you, parishioners refuse to worship with you, teachers refuse to teach you or your kids, insurers refuse to insure you?

Yes. Many of the above refusals would, in fact, be legal, if not just. The anarchist may answer by demanding the dismantling of all compulsion, leaving everyone free to completely self-segregate away from the non-vaccinated. But I suspect most Americns would not go so far. Nor would they likely tolerate such a system — vaccinated or not. Nevertheless, if exercising your right to decline the vaccine is contingent on the forced acts of others, it is hard to see how liberty is advanced. In fact, far from expanding individual liberty, refusing the vaccine may actually mean borrowing such liberty from others, with a net loss to liberty rights as a whole. 

Abraham Lincoln well understood those instances when liberty collides with liberty, depending on one’s perspective. Consider his remarks in 1864: 

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names—liberty and tyranny.

To be clear, today’s vaccine refusers do not share even the same moral galaxy as yesterday’s defenders of slavery. Such comparisons would be offensive and disgusting. There are many good, just, and righteous citizens who do not want to be vaccinated. And I will defend from the ramparts their right to refuse, even if I disagree with their choice. I quote Lincoln only to show how definitional dilemmas about the concept of liberty present from time to time, not to cast moral opprobrium.  

Moreover, I come not to shame, judge or compel, but to persuade. It is the battle between competing liberty interests that demands from us the most difficult and fundamental decisions. Weighing an individual’s right not to be vaccinated with a community’s need for that vaccination is no simple quandary. We need as many people as possible to be vaccinated. And while there are some good reasons to personally decline the vaccine, taking a stand for liberty is not one of them. 

Daniel H. Stewart is a fifth-generation Nevadan and a partner with Hutchison & Steffen. He was Gov. Brian Sandoval’s general counsel and has represented various GOP elected officials and groups. 


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