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The COVID-19 crisis creates a conflict not between individual rights and the community, but rather between individual rights themselves—including, above all, the right to health.
Much of the moral rhetoric of our response to the coronavirus crisis is framed in terms of a clash between basic individual rights and collective interests: we should be liberals in ordinary times, many seem to contend, but communitarians in extraordinary times. We would not and should not normally tolerate stay-at-home orders, the argument goes, but the situation calls for sacrifices of individual rights for the “common good.” Extraordinary times call for a new balance between the basic rights of the individual and the interests of the community.
It is possible to see our situation not as a sacrifice of individual rights to community interests but rather as a rebalancing of some individual rights against others.
It is precisely this framing that some fringe anti-lockdown protesters have taken issue with, perceiving lockdowns to be communitarian overreach at the expense of civil liberties. Yet the communitarian understanding of our response is not unique to anti-lockdown minorities. The overwhelming majority of Americans still support current restrictions, many of them seeing lockdowns as justified by a “showdown between public health imperatives and civil liberties,” requiring us to “give up . . . individual rights for the sake of the common good.”
This is one way to justify the more restrictive public health interventions our state and federal governments have used to fight COVID-19, but it is not the only way. In fact, it is possible to see our situation not as a sacrifice of individual rights to community interests but rather as a rebalancing of some individual rights against other individual rights. This understanding of our response—one based on a conflict between basic individual rights, not between individuals and the community—helps to give both liberal vigilance and social solidarity their due in critical and post-critical times alike.
• • •
From a rights perspective, what makes public health crises like the current one special is arguably not that they urge us to put basic individual rights aside, but rather that they create a conflict between them. Legal declarations of states of emergencies in liberal democracies make this clear: they are not invitations to set aside rights in favor of the interests of the community. True, the extraordinary authorizations that states of emergency confer upon the executive branch of government offer new pathways for restricting some of our rights more speedily and without legislative deliberation or majoritarian conviction—but they do not change the moral landscape of our law and politics. And that is for good reason. Among other things, rights talk is the language of vigilance against abuses of the individual. That vigilance is badly needed exactly in times of increasing community pressure.
Collective threats, in fact, provide one of the best reasons for vigilance in the protection of basic individual rights. At best, the United States has a mixed track record in upholding this vigilance. Memories of interning 120,000 American citizens of Japanese descent, of imprisoning men and women for distributing pacifist leaflets during World War I, and of detaining foreigners in a land outside the purview of law make it clear that respect for individual rights lapses all too easily in time of war and in the midst of otherwise legitimate concerns with national security. Moreover, these past examples show that such infringement often adds to the hardships of otherwise already disadvantaged or marginal communities. This is not at all to say that these past violations are on a par—either symbolically or substantially—with the current lockdown-related restrictions. (While unemployment and economic hardship are among the driving forces of the anti-lockdown protests, some argue it is actually more privileged populations who speak up for their rights as well as for much more questionable ideals.)
Rather, the common thread between these past and present restrictions is merely their abstract moral structure: all of them are examples of restrictions on individual rights in the face of a collective threat. To the extent that any of these violations ended in a morally satisfactory resolution, it is by appealing to the significance of basic individual rights, whether in law or in politics. In ignoring this, the communitarian response to the crisis does not do justice to the liberal underpinnings of our law and politics.
Even in the midst of crisis, we should not accept giving up the liberal notion that our rights should protect us from unjustified interferences of the community.
Even in the midst of crisis, then, we should not accept giving up the liberal notion that our rights should protect us from unjustified interferences of the community. Rights are not there for us only in normal times (however they might be defined), but in all times: they continue to serve as yardsticks for assessing each and every restriction on our freedoms. Governor Tate Reeves, who fervently resisted imposing a lockdown in Mississippi in order to uphold individual rights, as well as the protesters who called for an all-too-early opening-up on the grounds of civil liberties, were right about one thing: individual rights are no less important now than they were before the crisis. But that does not mean that we should not impose a lockdown under any circumstances, or that we should open up immediately, lifting all restrictions at once, if a lockdown is already in place. It is perfectly possible to justify such interventions within a rights framework: it is not that we are giving up basic individual rights, but rather that we are restricting them in order to allow other basic individual rights to prevail.
The communitarian understanding is also unhelpful because it offers little to learn from our current situation that could be applicable to normal times. If rights discourse is the material that our politics, law, and morality for normal times are woven of, there’s nothing to carry over from our extraordinary experience to our normal political, legal, and moral order. As soon as normal times resume, the old balance between individual rights and collective interests should resume too. The communitarian response suggests that solidarity belongs to times of crisis, whereas independence, self-sufficiency, and a lack of constraints on individual conduct characterize normalcy. In doing so, the communitarian response not only sells us short on liberty in critical times, but it may also sell us short on community and solidarity in less-than-critical times.
• • •
To avoid both pitfalls, we need more rights talk, not less. But we also need to examine what basic individual rights ultimately are and should be about, in order to understand how they could illuminate both our current response and its lessons for a post-crisis world.
Basic rights serve to protect individuals’ most fundamental interests. Some of these interests are related to autonomy (such as freedom of movement); others are not (such as the right to equal treatment). But whether or not some of your interests are respected and protected as basic rights is not a function of their relation to autonomy; it is rather a matter of their importance. In society certain fundamental interests of different individuals inevitably come into conflict with each other—and hence, so do their basic rights. Rights, then, are not the final word on who prevails in a conflict of interests. Rather, they are like flashlights that guide our attention to the most important individual interests that need to be attended to in a society. Conflicts between them often require a judgment of their relative importance.
It is true that some of our basic rights are more heavily interfered with now—notably, freedom of movement, of assembly and association, privacy, and several economic liberties. But arguably what is special about our current situation is not that we are being asked to put these rights aside. Instead, what is new is that rights that do not conflict in less dire times—my right to freedom of movement and your right to health (yes, more on that in a moment)—have sadly now come to conflict. The same fundamental interests that liberal democracies could and should protect in normal times without tradeoffs can only be protected in more challenging circumstances with painful tradeoffs. It is the circumstances that have changed, not the ultimate moral and political principles that we should apply to them. It is still rights against rights, not rights against the interests of the community.
But exactly what is the basic individual right to health that should prevail over, and justify certain restrictions on, certain others rights? Talk of a right to health may strike many American ears as controversial, of course. This hesitation partly explains why we fall so quickly for the communitarian understanding: we sense that we need to balance basic individual rights against something, unsure of what that something could be if not the interests of the community. What does it mean to have a right to health, and how could this right have escaped our notice for so long in this country’s moral as well as political landscape and legal ambition?
From a rights perspective, what makes public health crises like the current one special is arguably not that they urge us to put basic individual rights aside, but rather that they create a conflict between them.
The less ambitious view of a right to health is that it protects you against excessive threats to your health. Just as your right to life entails a right not to be killed or excessively threatened in your life by others, so your right to health also entails a right not to be excessively threatened in your health by others. During the COVID-19 pandemic, in particular, we owe it to our individual fellow citizens as bearers of this right—not just to the nation, the community, or the health care system—to stay at home now, if we do not have other, less restrictive means to avoid that excessive threat to others’ health. (Alternative means may include, for instance, a combination of massive scale testing, tracing, and supported isolation—which involves restricting the free movement of fewer people, and the state providing for the basic needs of those who need to be isolated. This alternative would still jeopardize rights to privacy, though, a cost that would also need to be minimized.) The fact that another’s right to health does not conflict so strongly with our other rights in less critical times doesn’t mean there is no such right. But it does help to explain why so many people normally pay so little attention to it.
Traces of this basic right to health can be found in the regulation of a very mundane activity: driving. There was a time when vehicles did not pose excessive threats to others; there was not much of a need to impose speed limits on horse-carts, and even today, you can still ride a bicycle without a driver’s license. But cars are different: they make it much easier to endanger the health of others. The very point of requiring drivers to be licensed—and, in part, to impose a speed limit—is precisely the recognition that others’ health, in these circumstances, is excessively threatened by incompetent drivers. It is primarily in respect of other individuals’ right to health that we should drive competently, with reasonable speed, and not under the influence of alcohol. It would be disrespectful of the non-interference aspect of the right to health if governments entirely lifted the requirement of licensing drivers, or abolished all speed limits.
A more ambitious understanding of the right to health—one that goes beyond non-interference—is not only part and parcel of international human rights law, but has also profoundly shaped recent political and moral discourse on health care in the United States, too. In fact, this political and moral ambition is far from recent on this side of the Atlantic. It found its way into The Universal Declaration on Human Rights, which expresses a political commitment to a broad set of human rights, including the right to health. As early as 1948, at the Third Session of the UN General Assembly, the United States not only voted in favor of the entire Declaration, but also supported the specific article providing for the right to health. Article 25 of the Declaration holds that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including . . . medical care.” Some argue the recognition of a right to medical care is not even contentious along party lines: Republicans may disagree with Democrats over what it entails and how exactly it should be realized, but not about whether it should be recognized.
It should be stressed that calling something a basic right is not the end but the beginning of the conversation. Once an individual’s basic rights are recognized, it is always an open question how to balance them against other individuals’ basic rights in any particular context. But either way, a right to health should be put on the table.
Would this recognition leave us with enough solidarity, at least in the provision of health care? Not necessarily; there is likely much more to the politics of solidarity, not to mention the politics of health, than rights talk. However, a credible language of rights helps to protect some of what we take to be important. Further, it also indicates some starting points for that conversation. The more ambitious aspect of the basic right to health—not just a negative right against excessive health threats, but a positive right to medical care—is widely interpreted as a universal entitlement, at the very least, to health care that is adequate to the economic situation of one’s country. Wherever the conversation ends, it must start from the recognition that even this minimal standard is not currently met in the United States, nor was it before the pandemic.
• • •
This defense of rights does not absolve us of making difficult political decisions. We always need to make decisions about which rights need more protection in particular contexts, and what the right to health will require from us in a post-crisis world. The framework of rights is not at all meant to silence these moral and political questions, whether in times of crisis or otherwise. Quite the contrary: it provides us with guiding lights out of a moral maze. But a system of rights can only fulfill that role if it recognizes the fundamental interests of a broad cross-section of our diverse, modern society, and if it is robust enough to protect them in difficult times, yet also flexible enough to allow us to adjust to changing circumstances.
Just as your right to life entails a right not to be killed or excessively threatened in your life by others, so your right to health also entails a right not to be excessively threatened in your health by others.
This conception of rights also reveals that solidarity and rights are not in conflict. Rights are not magic wands that we can wield against the community to make others’ needs invisible when they ask for our solidarity. Instead, rights offer a framework to negotiate fundamental, often conflicting, interests. That is anything but easy. Rights are moral concepts, and they have to do most of their job—as any other moral concepts—in the prevailing political and legal realities. Just like almost any other moral concept, including communitarian ones, they can get hijacked in political abuses and legal tactics. Yet these somewhat grim realities are no reason to abandon rights talk as such. Instead, we should improve on the political and legal environment tasked to establish and balance individual rights in a fair and inclusive way.
In the end, we should not reserve solidarity for crises, nor should we reserve basic individual rights for normalcy. Instead, at all times, we have to consider what basic rights we should have based on a wide and inclusive assessment of the fundamental interests of all members of society. This is the only way to respect both the liberty of individuals and solidarity between them in extraordinary as well as more ordinary times.
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