A Final Comment on "Zywicki v. Wade"

I was going to leave this as a comment on this thread (https://crookedtimber.org/2021/08/06/zywicki-vs-wade/#comments) over at Crooked Timber, but they went and closed the comments for reasons which aren't clear. In any case, since I've already written it, might as well post it:

---

Tm @35 / notGoodenough @ 38 / J-D @ 41 -

Thank you all for the thorough and thoughtful replies. I recognize that there's lots of case law, custom, etc. in democratic countries which support the concept of vaccine mandates. Tradition is tradition, the law is the law, and I'm not arguing explicitly against either.

Rather, what I wrote was in response to Lee A. Arnold's early comments (@3 and @4) and Tm's subsequent response (@24) which I believe are arguing for a much broader, more general principle (hence my question @11 regarding limits). In response to my question

Should people be obligated to subject themselves to any medical procedure provided the benefit to society is high enough?

Tm says:

This is really not hard to answer: in a liberal society, a requirement is justifiable if it is necessary for the protection of society and does not place an undue burden on the individual.

Here are a couple of points about this exchange which are relevant to your various critiques:

• I framed the question in terms of "obligation" i.e. is a person morally obliged to take a positive action (such as getting vaccinated) if specific criteria are met. This is not really about whether someone is going to get turned away from the gym; its about whether people should (in the normative sense) submit to a medical procedure.
• The "balancing" framing was introduced by Tm. Justification consists of establishing that a requirement 1) is necessary for the protection of society and 2) does not place an undue burden on the individual. I acknowledge that I'm assuming this test includes a balancing element, that there's a requirement of proportionality between the level of protection provided and the burden on the individual. This needn't necessarily be the case.

Now, regarding specific comments that aren't addressed by the observations above:

• I'm still thinking through vaccination as a job requirement in the case where such thing aren't clearly spelled out ahead of time. If your employer tells you prior to accepting the job that you'll need to get vaccinated, all good.
• I support abortion on demand, and think that existing restrictions are bullshit. Tm, its interesting that you bring up abortion, since I think using it as an example helps illustrate my stance. A person seeking an abortion is making a decision for themselves about how a set of (possibly) subjective/incommensurable criteria affect their personal wellbeing. On the other hand, society/government/public health authorities have absolutely no business making that decision for anyone.
• "If you insist that the burden of proof for supporting a vaccine mandate requires calculation that the benefits to society outweigh any burdens, then to oppose a vaccine mandate must surely require calculation that the burdens outweigh the benefits to society?" I had to stop and think awhile about this objection, but I'm going to hold my ground because I think that in some ways this is the heart of the issue. I treat it as axiomatic that a preference for bodily autonomy is the (defeasible) default choice for such situations. I'm a little surprised I'm having to raise that here at CT; isn't that basically the crux of the (moral) argument underpinning the right to abortion?
• "We are not talking about Zwyicki’s autonomy with respect to vaccination". No, really, we are. I don't know Zwyicki, I don't care about Zwyicki, but a lot of commenters here seem to be pretty certain that Zwyicki's behavior is endangering people. Given the rapidity of the judgement, and the certainty of the verdict, it should be really easy for people to show their work. This was actually part of what prompted me to ask the "limiting principles" question earlier, because it really looks like people are assuming that any incremental protection provided to society is sufficient to require him to get vaccinated.

This paragraph deserves to be quoted in its entirety:

A government should have absolutely no input on the weighing of benefits and burdens in a society? If we were only considering the potential harm to Zwyicki, this might be more reasonable – but we are considering the potential harm by Zwyicki to others. A government (at least in theory) can have access to a vast body of resources, data, and expertise – including some of the most talented and empirically consistently correct people working in relevant fields (such as epidemiology and medicine). While I am certainly not blind to how frequently public health is overridden by political and economic considerations, however incompetent you believe the government may be in exercising such a function I’d be intrigued at how you came to the conclusion that an individual (with far less access to relevant data and knowledge) is better placed to make such evaluations.

notGoodenough, explain to me how you have not just reiterated the government's position from Buck v. Bell? And now I'm going to rant for a few sentences: For the love of god and all that is holy, how can you possibly hold this position given who just left office? Why the hell should I give any public entity that much deference when fucking Cheeto Mussolini might get reelected in 2024? Don't give more power to your best friend than you're willing to give to your worst enemy.

Maybe I should have said this up front, instead of burying the lede, but you have to hold the line somewhere. Government necessarily needs to do cost/benefit analyses all the time; I'm down with that. But I draw the line at giving society/government/public health authorities the power to compel medical procedures, because that power has historically lead to abuses. I was hoping that the wise heads could talk me out of that position in the case of vaccination, but so far I'm not convinced.