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Opinion Where conservatives’ arguments about public health mandates go wrong

A sign requiring proof of vaccination for entry is posted at a bar in San Francisco on July 29. (Haven Daley/AP)

As with everything else covid-related, vaccine passports were a political flash point even before New York City announced Tuesday that it would mandate proof of vaccination for many indoor settings. Liberals are enthusiastic, while conservatives have variously derided them as “Jim Crow,” “authoritarianism” or “un-American” — and denounced as a quisling anyone on the right who seems to support them.

Conservatives are not wrong, of course, that such measures are a serious infringement on liberty. It may sincerely feel like an unprecedented incursion on bedrock American principles of small government and individual freedom. But we’re really haggling over whether this particular risk is worth the kinds of measures that public health authorities have been imposing for centuries.

As Adam Klein and Benjamin Wittes documented last year on the legal-affairs site Lawfare, our country’s history of public health coercion is long and illustrious — and predates the founding. The Massachusetts colony got its first quarantine law in 1647. By the early 18th century, authorities were permitted to remove the ill to separate houses. Ship quarantines were common, as were 19th-century quarantines of immigrants.

As more became known about the causes and treatment of disease, the reach of public health officers became even more intrusive. In 1905, the Supreme Court upheld compulsory vaccination to halt a smallpox epidemic. A few years later, a cook named Mary Mallon was given the choice between surgery to remove her gallbladder and lifetime quarantine. She died in confinement, yet you probably know her not as a tragic martyr to authoritarian government but as “Typhoid Mary,” the asymptomatic carrier who sickened many people in the households where she was employed, and killed at least three.

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Yet the U.S. local, state and federal governments that enacted these measures would probably strike even many modern conservatives as a little too hands-off about many things. It wasn’t that our ancestors didn’t love individual liberty; they just loved it a little less than they hated getting typhoid or smallpox.

Conservatives who think that they’re defending a kind of natural order of things, or at least historical precedent, are actually fixing on a fairly recent, and extraordinarily novel, era characterized by humanity’s conquest of the most common and infectious diseases. Back when this country was founded, our population was routinely ravaged by disease: waterborne illnesses such as typhoid, polio and cholera; mosquito-borne illnesses such as malaria and yellow fever; bacterial infections including staph, strep and tuberculosis; and airborne viral infections such as measles and mumps. Our ancestors used the power of the law to contain those threats, at least partially.

One by one, however, those diseases were neutralized through great public works projects of the late 19th and early 20th centuries, and then through medical advances in vaccines and antibiotics. Thanks to them, almost no living Americans worry as much about infectious disease as their ancestors. Yet even so, we haven’t entirely given up on restrictive interventions: Tuberculosis patients who don’t comply with treatment can be, and are, forcibly isolated until they complete a lengthy and unpleasant drug regimen. In 20 years around the libertarian and conservative movements, I cannot recall ever hearing anyone denounce this practice.

A vaccine passport would of course affect more people, which makes it feel more intrusive, even though in principle it is less so: You don’t have to get a vaccine in New York; you just can’t dine indoors without one. And it’s understandable that conservatives tend to think of their old existence as the natural state of affairs. But it’s actually highly abnormal — and since the outbreak of covid-19 has pushed us a little closer toward the historical “normal,” arguably our willingness to infringe on personal liberty should get more “normal” too.

It’s fair to disagree, but you won’t persuade your fellow Americans by ranting about jackboots and Jim Crow. A better counterargument is to concede that while other interventions might have been justified, covid-19 poses too small a threat to the vaccinated to justify the intrusion.

After all, the recent spike in covid infections in Britain has not led to a correspondingly massive spike in deaths. Moreover, the delta-variant-driven wave there seems to have peaked quickly and receded even faster, a pattern that’s also apparent in the Netherlands, raising questions about just how many people delta fatally threatens. There’s a strong case that the added risk is too small to merit a mask mandate — much less measures that coerce people into injecting a foreign substance into their bodies.

That’s not to say that conservatives will win that fight. There are also good arguments in favor of vaccine passports, and conservatives will have to rebut them convincingly. But they’re more likely to win by standing on those sorts of facts than by claiming the mantle of good old-fashioned American values — because in the case of infectious disease, those old-fashioned values are not really on their side.