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Bioethicist On Libertarian Views Toward Face Mask Laws


We're going to stay on the subject of face masks a little longer. As you probably know, government orders to wear some kind of face covering, whether outdoors or indoors, are triggering hostility in some quarters, even though, in the absence of a vaccine for COVID-19, health experts say face coverings remain one of the best tools to fight the spread. On Wednesday, Georgia's governor, Brian Kemp, even banned local governments from enforcing these laws.

Now, critics of these laws generally say these mask orders violate their right to individual liberty, so we wanted to go a little bit deeper on this argument, which is generally described as libertarian. We've called on Jessica Flanigan for this. She teaches bioethics at the University of Richmond and is the author of the book "Pharmaceutical Freedom: Why Patients Have A Right To Self Medicate." And she is with us now.

Professor Flanigan, welcome. Thank you for joining us.


MARTIN: So let me just establish a few things before we start our conversation. We're not going to focus on people who don't take the virus seriously because it is serious. I mean, at least twice as many people have already died from this virus as die in a terrible year of the common flu. And we're also going to skip past people who say they're not wearing a mask because they somehow think it shows their support for President Trump if they don't wear masks. That's not the focus here.

We want to focus on the core idea of individual liberty versus the common good in a health context. So just start there, if you would. I mean, is there a basic libertarian view about public health measures like face masks?

FLANIGAN: I think that there's two questions about this. The first is, should people wear masks and stay home? And I think there, the libertarian answer is yes because libertarians believe or they should believe that people should wear masks because infecting someone with a harmful illness violates their bodily rights. Self-ownership and bodily rights are foundational to libertarianism. So masks make it less likely that people will violate these rights, so all libertarians should support mask-wearing and staying home when it's possible.

The second question is harder, though. Should the government enforce mask mandates and lockdowns? And there, the answer is more, it depends. The government should only restrict people's freedom in private spaces when it's necessary and when the benefits of enforcing it exceed the cost of enforcing it.

So some cases of preventing people from exposing other people to risks are less problematic. For example, the government enforces speed limits on public roads. But mask mandates or things like lockdowns would apply to private businesses as well. And in those cases, there's a higher burden of proof that the government would need to clear to establish that there really should be a mandate. But it's not as clear in some contexts that that burden of proof had been met.

MARTIN: How has it not been met when you have...

FLANIGAN: (Laughter).

MARTIN: ...More than a 130,000 people who've already died? This is highly contagious. It's a respiratory virus. People can transmit it without even knowing that they are themselves sick.

FLANIGAN: Absolutely.

MARTIN: How has that burden not been met?

FLANIGAN: I absolutely agree because as I said, I think everybody should wear a mask, and people should social distance for sure. But it's not as if enforcing a law is free of any kind of costs. And so in order to enforce a law that's limiting people's authority to run their businesses or act in certain ways in private spaces - we're not talking about the government spaces, where I think a mask mandate is totally fine.

But in private contexts, they should be able to show that they've tried less burdensome ways of addressing the virus first - so, for example, putting more resources behind expanding access to tests and medical care, provide more PPE, invest in contact tracing. FDA only approved pool testing yesterday. So public officials can require masks on government property, and they could try a lot of other ways to mitigate the virus.

MARTIN: But how do you respond to the fact that it is a fact that certain communities, particularly Black, brown and Native American people, have demonstrated to be far more vulnerable for a whole array of reasons that we've well discussed at this point than other groups?

I mean, one of the things that we're - conversations we're starting to see now is a real sense that people who are not as deeply affected as they have been on the aggregate just don't care or that they have sort of abandoned a sense of moral responsibility to other people just because they don't look like them and because they are not them or not related to them. How do you respond to that?

FLANIGAN: That's part of the reason that I think that we should really weigh the risks on both sides because on one hand, the virus is disproportionately harmful to marginalized communities. But on the other hand, expanding people's vulnerability to police power - that expansion of legal interference or the threat of law enforcement is also going to potentially be disproportionately harmful to people who are marginalized or people who lack social power.

And so when we're making these types of risk-benefit judgments, we should consider the risks of enforcement and the discriminatory effects of law enforcement or the disproportionate harms of law enforcement alongside the disproportionate harms of the virus to communities who are more marginalized.

MARTIN: That's Jessica Flanagan, professor of bioethics at the University of Richmond and author of the book "Pharmaceutical Freedom: Why Patients Have A Right To Self Medicate."

Professor Flanagan, thanks so much for talking to us.

FLANIGAN: Thank you.

(SOUNDBITE OF DOGO'S "BORN TO BE WILD AND FREE") Transcript provided by NPR, Copyright NPR.