A recent Rasmussen Reports poll revealed a significant percentage of the public agrees with punitive actions for people who decline COVID-19 vaccines, such as fines, confinement or imprisonment. This mindset reflects a power strategy designed to chip away at the rule of law and spur divisiveness among the public.
Based on the poll, this strategy has successfully — and deeply — influenced public opinion. Viewing people as inherently dangerous based on their status rather than their actions poses grave risks to everyone’s human rights.
According to the poll: 59% of Democratic voters would favor a government policy requiring that citizens remain confined to their homes at all times, except for emergencies, if they decline a COVID-19 vaccine. Forty-five percent of Democratic voters favored removing people from their homes to reside in a designated “facility” if they decline the vaccination.
Today, many progressives view aggressive mitigation policies as a smart hedge against COVID-19. Notably, allegiance to this strategy would have been labeled conservative during influenza and Ebola pandemic concerns. In fact, in reaction to the rise of a deadly strain of avian flu in 2008, law professors writing for the American Civil Liberties Union explicitly cautioned against an expansive quarantine, coercive medical interventions and treatment of people as a threat.
Quarantine law attempts to balance restricting a person’s movement and liberty with protecting society from that person potentially spreading a dangerous disease. By definition, quarantine applies only to deadly or very serious communicable diseases, traditionally including diseases such as severe acute respiratory syndrome, better known as SARS; Ebola; or tuberculosis. It applies only to people with a known exposure, such as all people in one school or one ship, not an entire state or class of people.
Quarantine lasts only for the period of disease incubation, not for months on end. Importantly, quarantine is not designed as a punitive measure, but rather a method for monitoring and facilitating agreed-upon medical care.
This poll proposition is not a quarantine, but a penalty designed to coerce people to submit to medical intervention.
Broadly closing businesses, schools and places of worship and restricting travel did not merely revise the name for quarantine, but overlooked well-settled principles behind it. Health officials and policymakers exerted power over all businesses, all schools and all people under the presumption that everyone could possibly be exposed or acting as potential asymptomatic carriers of the virus.
This dismantled the law’s delicate balance: To exert control over a person or place exposed to communicable disease requires narrow precision, not attenuated or distant possibilities. These requirements exist as a built-in mechanism to balance the important coexisting rights at stake.
The constraints imposed by stay-at-home orders and theoretical poll scenarios are not merely inconveniences, but also contravene human rights law and constitutional law. This encompasses a variety of rights, such as the right to go to work and earn a living; the right to preserve one’s business and property; the right to congregate in groups to socialize, protest or worship; the right to travel; and the right to make one’s own medical decisions.
Importantly, these are naturally existing rights. They are not granted by the government but must be shielded from governmental attempts to infringe upon them.
World leaders and media commentators have expressed animosity toward people based on vaccine status, with calls to condemn and exclude them from public spaces such as workplaces, restaurants, and theaters. For the majority of people who complied with Centers for Disease Control and Prevention recommendations and received the COVID-19 vaccine, following this directive as a prerequisite to participate in work and social activities likely seems reasonable and imbued with good intentions.
These statements displace fear of the virus and a yearning to return to normalcy with a divisive call to view other people who resist compliance as a menace or impediment.
But what happens if those in power mandate compliance with another directive or medical intervention with which people do not agree?
During the height of anti-communism in the 1960s, the Supreme Court opined that engaging in cultural, social and political activities constitutes the “very essence of our free society.” The Supreme Court warned that curtailing those rights based on the proposition that a person could be dangerous can lead to abhorrent concentration of state power in totalitarian regimes that secure power by ticketing citizens and demanding identification papers.
Public health officials and government leaders can recommend and endorse medical interventions. In times of crisis or public health emergencies, people still retain the right to consent or refuse medical interventions, even when public health professionals declare that the intervention is necessary and beneficial.
We must vehemently resist the reclassification of certain people as presumptively dangerous based on their status alone. Cultivating suspicion and shaming people based on their status rather than conduct constitute a recipe for hostility, human rights abuse and erosion of the rule of law.
Katherine Drabiak is a professor of public health law, health law and medical ethics at the University of South Florida.
