The American Civil Liberties Union (ACLU) surprised even many of its harshest critics this week when it strongly defended coercive programs and other mandates from the state in the name of fighting COVID. “Far from compromising them, vaccine mandates actually further civil liberties,” its Twitter account announced, adding that “vaccine requirements also safeguard those whose work involves regular exposure to the public."
If you were surprised to see the ACLU heralding the civil liberties imperatives of "vaccine mandates” and "vaccine requirements” — whereby the government coerces adults to inject medicine into their own bodies that they do not want — the New York Times op-ed which the group promoted, written by two of its senior lawyers, was even more extreme. The article begins with this rhetorical question: “Do vaccine mandates violate civil liberties?” Noting that "some who have refused vaccination claim as much,” the ACLU lawyers say: “we disagree.” The op-ed then examines various civil liberties objections to mandates and state coercion — little things like, you know, bodily autonomy and freedom to choose — and the ACLU officials then invoke one authoritarian cliche after the next (“these rights are not absolute") to sweep aside such civil liberties concerns:
[W]hen it comes to Covid-19, all considerations point in the same direction. . . . In fact, far from compromising civil liberties, vaccine mandates actually further civil liberties. . . . .
[Many claim that] vaccines are a justifiable intrusion on autonomy and bodily integrity. That may sound ominous, because we all have the fundamental right to bodily integrity and to make our own health care decisions. But these rights are not absolute. They do not include the right to inflict harm on others. . . . While vaccine mandates are not always permissible, they rarely run afoul of civil liberties when they involve highly infectious and devastating diseases like Covid-19. . . .
While limited exceptions are necessary, most people can be required to be vaccinated. . . . . Where a vaccine is not medically contraindicated, however, avoiding a deadly threat to the public health typically outweighs personal autonomy and individual freedom.
The op-ed sounds like it was written by an NSA official justifying the need for mass surveillance (yes, fine, your privacy is important but it is not absolute; your privacy rights are outweighed by public safety; we are spying on you for your own good). And the op-ed appropriately ends with this perfect Orwellian flourish: “We care deeply about civil liberties and civil rights for all — which is precisely why we support vaccine mandates.”
What makes the ACLU's position so remarkable — besides the inherent shock of a civil liberties organization championing state mandates overriding individual choice — is that, very recently, the same group warned of the grave dangers of the very mindset it is now pushing. In 2008, the ACLU published a comprehensive report on pandemics which had one primary purpose: to denounce as dangerous and unnecessary attempts by the state to mandate, coerce, and control in the name of protecting the public from pandemics.
The title of the ACLU report, resurfaced by David Shane, reveals its primary point: "Pandemic Preparedness: The Need for a Public Health – Not a Law Enforcement/National Security – Approach.” To read this report is to feel that one is reading the anti-ACLU — or at least the actual ACLU prior to its Trump-era transformation. From start to finish, it reads as a warning of the perils of precisely the mindset which today's ACLU is now advocating for COVID.
In 2008, the group explained its purpose this way: “the following report examines the relationship between civil liberties and public health in contemporary U.S. pandemic planning and makes a series of recommendations for developing a more effective, civil liberties-friendly approach.” Its key warning: “Not all public health interventions have been benign or beneficial, however. Too often, fears aroused by disease and epidemics have encouraged abuses of state power. Atrocities, large and small, have been committed in the name of protecting the public’s health.”
The immediate impetus for the ACLU's 2008 report was two-fold: 1) the 2008 emergence of the avian bird flu pandemic, which produced highly alarmist and ultimately false headlines around the world about millions dying; and 2) new pandemic legislation and regulatory frameworks, enacted in the wake of 9/11, premised on the view, as the ACLU put it, "that every outbreak of disease could be the beginning of some horrific epidemic, requiring the suspension of civil liberties.”
The ACLU issued its 2008 report to warn that the worst possible way to respond to a deadly pandemic was through coercion and mandates. Instead, the group argued — as one would expect from a civil liberties organization — persuasion and voluntary compliance were both more effective and less likely to erode core liberties. As they put it:
The lessons from history should be kept in mind whenever we are told by government officials that “tough,” liberty-limiting actions are needed to protect us from dangerous diseases. Specifically: coercion and brute force are rarely necessary. In fact they are generally counterproductive—they gratuitously breed public distrust and encourage the people who are most in need of care to evade public health authorities. On the other hand, effective, preventive strategies that rely on voluntary participation do work.
The key dichotomy emphasized by the 2008 version of the ACLU was the difference between constructive and persuasive messaging regarding public health versus the use of law enforcement and forced mandates. Starting with the report's title (“The Need for a Public Health – Not a Law Enforcement/National Security – Approach”) through every section, the ACLU urges that mandates and coercion be dispensed with in favor of voluntary compliance and educational messages:
Government agencies have an essential role to play in helping to prevent and mitigate epidemics. Unfortunately, in recent years, our government’s approach to preparing the nation for a possible influenza pandemic has been highly misguided. Too often, policymakers are resorting to law enforcement and national security-oriented measures that not only suppress individual rights unnecessarily, but have proven to be ineffective in stopping the spread of disease and saving lives . . . .
This law enforcement/national security strategy shifts the focus of preparedness from preventing and mitigating an emergency to punishing people who fail to follow orders and stay healthy.
Much of the report is devoted to an examination of how the U.S. government has historically treated pandemics. As it reviews each pandemic — including horrifically lethal ones such as the plague and smallpox — the ACLU concludes over and over that American health authorities excessively relied on coercion rather than education and persuasion, fueled by media-aided fear porn and alarmist narratives:
Lessons from History: American history contains vivid reminders that grafting the values of law enforcement and national security onto public health is both ineffective and dangerous. Too often, fears aroused by disease and epidemics have justified abuses of state power. Highly discriminatory and forcible vaccination and quarantine measures adopted in response to outbreaks of the plague and smallpox over the past century have consistently accelerated rather than slowed the spread of disease, while fomenting public distrust and, in some cases, riots.
Amazingly, the model that the ACLU identifies as the one that must be avoided is precisely the one that it is now urging be used for COVID. Compare, for instance, the ACLU's defense of coercive mandates in its New York Times op-ed this week (vaccine mandates “rarely run afoul of civil liberties”) with this ringing endorsement of the need to preserve freedom of choice in its 2008 report:
This model assumes that we must “trade liberty for security.” As a result, instead of helping individuals and communities through education and provision of health care, today’s pandemic prevention focuses on taking aggressive, coercive actions against those who are sick. People, rather than the disease, become the enemy.
What most worried the 2008 version of the ACLU was that authoritarian power vested in the hands of public health officials in the form of mandates and coercion will become permanent given that we will always live with such threats and endless pandemics. That was why, urged that iteration of the ACLU, we must opt for an approach that relies on education programs and voluntary compliance rather than state mandates.
“The law enforcement approach to public health offers a rationale for the endless suspension of civil liberties,” they explained. Using post-9/11 expansions of state power as its framework, the group explained that “the ‘Global War on Terror' may go on for a generation, but the war on disease will continue until the end of the human race. There will always be a new disease, always the threat of a new pandemic. If that fear justifies the suspension of liberties and the institution of an emergency state, then freedom and the rule of law will be permanently suspended.”
The ACLU's New York Times op-ed this week repeatedly stressed that coercive mandates are justified whenever “the disease is highly transmissible, serious and lethal.” But its 2008 report argued exactly the opposite. The report was critical of forced vaccinations and other mandates in prior outbreaks of smallpox — certainly a highly contagious and lethal disease — but then argued that when the disease reappeared in the late 1940s, New York City handled it much better by offering voluntary vaccines and education programs rather than coercive measures:
In contrast, New York City relied on a different approach in 1947, one that viewed the public as the client rather than the enemy of public health. When smallpox reappeared in the city after a long absence, the city educated the public about the problem and instituted a massive voluntary vaccination campaign. Not surprisingly, no coercion was needed. Provided with information about the need for and benefits of vaccination, and reassurance that the city was helping rather than attacking them, the citizens of the New York turned out en masse for one of the world’s largest voluntary vaccination campaigns. The campaign was successful, and the epidemic was quashed before it had a chance to spread broadly in the city or beyond.
In the scheme of repressive measures that worried the 2008 ACLU, “compulsory isolation and quarantine are among the most coercive non-pharmaceutical interventions that may be employed during a pandemic.” They minced no words about such policies: “civil liberties concerns arise when these interventions are imposed by law.”
The ACLU did not merely warn with words of the dangers of excessive pandemic coercion. They also legally represented at least one client who they viewed as the victim of public health hysteria and tyranny. In 2006, “a 27-year-old tuberculosis patient named Robert Daniels was involuntarily quarantined in Phoenix, Arizona for disobeying an order by Maricopa County health officials to wear a face mask in public at all times.” Even once Daniels was released and it turned out he had a less severe case of TB than originally assumed, “Sheriff Joe Arpaio publicly threatened him with prosecution for the pre-quarantine events.”
The ACLU's lesson from that case, and similar ones it had handled, was clear: these cases “are cautionary tales that illustrate the counterproductive nature of a punitive, law enforcement approach to preventing the spread of disease.” Most important of all, said the civil liberties group, coercive steps — such as mandates and quarantines — not only endanger civil liberties but are less effective in improving the public health, because they convert the public from cooperative allies into enemies that must be controlled and punished:
These efforts require working with rather than against communities, providing communities with as healthy an environment as possible, health care if they need it, and the means to help themselves and their neighbors. Most importantly, to protect public health, public health policies must aim to help, rather than to suppress, the public.
A separate ACLU report from 2015, issued during the ebola epidemic, contained a similar message. It warned “against politically motivated and scientifically unwarranted quarantines, which the report found violated individuals’ rights and hampered efforts to end the outbreak.” Hysteria over ebola became so intense that the ACLU “found that people were illegally deprived of their right to due process under the 14th Amendment because the quarantines and movement restrictions were not scientifically justified.”
While both reports acknowledge that more restrictive measures can be justified under extreme circumstances, the crux of each is that voluntary compliance is better than coercion, that state mandates typically fail, and that the far greater danger is vesting too much power in the hands of the state, which it will never relinquish given the permanence of pandemics.
How the ACLU fell from those traditional and vital civil liberties positions to urging this week in The New York Times that “far from compromising civil liberties, vaccine mandates actually further civil liberties,” is anyone's guess. But what is beyond doubt is that it is a far fall indeed. And most of all, hearing the ACLU invoke the standard rationale of authoritarians — we all have the fundamental right to bodily integrity and to make our own health care decisions, but these rights are not absolute — is nothing short of jarring.
Update, Sept. 7, 2021, 6:58 p.m.: Shortly after publication of this article, a former ACLU lawyer, Margaret Winter, noted in response: “It was NOT just ‘prior to covid’ that ACLU denounced vaccine mandates: Read ACLU's 2020 position paper passionately and correctly arguing that vaccine mandates ‘exacerbate racial disparities and harm the civil liberties of all.’” Winter was referencing this ACLU report, from May of 2020, that warned of the serious dangers of “immunity passports," under which citizens who already got COVID and thus had immunity would enjoy rights not available to others:
We at the ACLU have serious concerns about the adoption of any such proposal, because of its potential to harm public health, incentivize economically-vulnerable people to risk their health by contracting COVID-19, exacerbate racial and economic disparities, and lead to a new health surveillance infrastructure that endangers privacy rights. . . . This division would likely worsen existing racial, disability, and economic disparities in America and lead people struggling to afford basic necessities to deliberately risk their health.
While such a scheme is different in degree from vaccine passports let alone vaccine mandates — which the ACLU is now championing — its rationale for opposing such a system is fully applicable: “there are serious civil liberties and civil rights harms from making workplace decisions on that basis,” adding: “any immunity passport system endangers privacy rights by creating a new surveillance infrastructure to collect health data.”