http://forum.pafoa.org/showthread.php?t=357078&p=4502942#post4502942
The ACLU, Prior to COVID, Denounced Mandates and Coercive Measures to
Fight Pandemics
In a New York Times op-ed this week, the group completely reversed its
views, arguing vaccine mandates help civil liberties and bodily autonomy
"is not absolute."
Glenn Greenwald
4 hr ago
298
367
Protest for medical freedom and health choice in Minnesota, Stop the
mandates, Minnesota citizens demand informed consent and transparency in
matters of health choice and medical freedom without coercion. (Photo
by: Michael Siluk/UCG/Universal Images Group via Getty Images)
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.”
2008 report of the American Civil Liberties Union (ACLU)
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.”
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