Public health’s post-pandemic relationship with coercion

Blog by Professor Maxwell J. Smith, Western University, London, Ontario, Canada 

Image credit: Naomi McKinney on Unsplash

The most significant challenges society faced during the COVID-19 pandemic can be distilled into a single, deceptively straightforward question: what role should the state play when it comes to protecting and promoting the public’s health? Views about lockdowns, school closures, occupancy limits, curfews, hospital visitor restrictions, mask mandates, vaccination mandates, travel restrictions, and so forth - the most controversial policy decisions of the past few years - are shaped by how one (and how society) understands the justification for state intervention in the name of the public’s health.

The state can of course intervene in myriad ways to protect and promote the public’s health, but the most controversial interventions tend to be those that are considered coercive in nature, i.e., interventions that require an action or behaviour or otherwise restrict one’s choices, often under the threat of sanction. As a result of the COVID-19 pandemic, a large swath of the public has for the first time considered whether coercive public health measures are justified and have formed strong opinions in response. At the same time, some of those who had considered this prior to the pandemic will have shifted their views after having experienced the actions taken—or not taken—by governments in pandemic response. Vociferous debates over vaccination mandates for COVID-19, for example, have in some instances led to revisiting and removing longstanding requirements for routine childhood vaccinations. And in other instances, legal challenges to policies enacted during the pandemic have set far-reaching precedents that are likely to limit the authority of administrative health bodies for many years to come. Hence, we find ourselves at a pivotal point where our societal understandings of the authority and legitimacy of governments and institutions to implement coercive measures to protect and promote public health are being carefully examined and shaped for the future.

I had the great fortune of visiting Ethox as a Caroline Miles Visiting Scholar at this pivotal juncture to begin exploring public health’s post-pandemic relationship with coercion. Four key insights emerged, due in part to productive interactions with members of the Ethox community, which will catalyze a sustained programme of research in this area:

1. The coercive measures deployed during COVID-19 for the sake of the public’s health were perceived by some as an unprecedented overstepping of state authority. Some might have had the thought: “wait, the government can’t do that!” While the measures deployed during COVID-19 were indeed unique and unprecedented in many respects, at least part of this perception could be credited to a general ignorance of the ways in which our health and our lives are routinely shot through by the authority of the state. This of course doesn’t justify such authority. Rather, it raises a curiosity regarding the extent to which state authority is accepted (or is considered more acceptable) merely because it ‘has always been that way’ or because it is invisible/less visible to us. Measures taken in response to COVID-19 were visible in a way that other coercive public health measures often are not, including routine childhood vaccination requirements and the ways in which drinking water and sanitation are tightly regulated. Should this newfound realization (among some) that governments commonly have the authority to deploy coercive measures to protect and promote the public’s health cause us to challenge these longstanding public health norms, or should it cause us to appreciate that coercion can in fact play an important and justified role in protecting and promoting the public’s health?
2. Public health measures can restrict choice and autonomy in many ways. Yet, it seems to be measures that engage individual behaviours or actions that are viewed as more objectionable. Consider the contrast between seat belts and air bags. In many jurisdictions, both are required as a means of protecting the health and safety of vehicle occupants. Failing to wear your seat belt or disengaging your air bag can each come with stiff penalties. Both are safety devices that have the unintended consequence of potentially injuring you when they work correctly. Yet, historically, it seems that seat belt requirements have received the lion’s share of opposition (usually on liberty grounds). Despite air bag requirements being more difficult to avoid (one has little, if no, say in the matter) and air bags potentially being more injurious than seat belts, seat belt laws are curiously viewed as more of an affront to liberty than air bag requirements. Is this because it is more so vehicle manufacturers, not you or I, who must comply with air bag requirements? Is it because penalties for noncompliance are more likely to be borne by vehicle manufacturers? Is it because seat belts can be uncomfortable, whereas air bags aren’t noticed until they deploy? Or is it because seat belt laws require individuals to do something, whereas air bag requirements don’t (other than shell out more cash for our vehicles)? This raises two insights: (i) perhaps it isn’t (always) limits to liberty per se that are so objectionable when it comes to public health measures, but rather ‘telling me what to do or not do’; (ii) public health might do better to favour structural interventions that do not engage individual behaviours or actions, even if such interventions are in fact more difficult to avoid and end up limiting liberty more (e.g., seat belts that are ‘built in’ where the user has no say as to whether to ‘wear’ one).
3. Justifications for coercive public health measures during COVID-19 seemed to hinge on whether evidence existed that showed with a high degree of confidence that those measures would have beneficial population-level effects (e.g., end an epidemic wave, affect population-level transmission dynamics, etc.). But this leaves little room for justifications grounded in justice. Is it ethically appropriate for governments to wield their coercive powers in order to better enforce the just distribution of health outcomes? For example, if mask mandates or vaccination mandates were expected to have little effect on overall population-level health outcomes, could they be justified if they would be expected to even out the disproportionate effects experienced by the least advantaged and most at risk?
4. In his 2000 book, “From Chaos to Coercion: Detention and the Control of Tuberculosis”, Richard Coker provides a lucid diagnosis for why policymakers may often choose coercion from its policy toolbox: mandatory measures can in many cases be easier, and decision-makers often fail to act prudentially and end up leaving themselves little choice but to deploy more coercive measures when things have spiralled out of control. But while this seems to be an apt diagnosis, what remains unclear is whether the mere fact that a government has failed to act in response to a public health threat, leading them to later consider more coercive interventions, renders those coercive interventions at that later stage less justifiable.

Much work clearly remains to examine public health’s post-pandemic relationship with coercion, and I very much appreciate my time with Ethox as a Caroline Miles Visiting Scholar to begin working on these questions.

Professor Maxwell J. Smith, Western University, London, Ontario, Canada