Is Our Duty to Avoid Harm Unlimited?

On Tuesday 7th December 2021, former CDC director Dr. Tom Frieden made the following remarks under the CNN brand:

If everyone masks indoors where Covid is spreading, everyone is safer.

Just as your right to swing your fist doesn’t extend to someone else’s nose, your right to bare your nose and mouth doesn’t extend to killing someone by spreading a deadly virus. Mask mandates need to be implemented, enforced, and adherence monitored to build a collective sense of responsibility and achievement at high levels of mask wearing.

These are extraordinary claims, although they will not seem so if you accept all the underlying premises.

Let us set aside for now the problem that the evidence in support of community masking remains weak, and also that scientific debate over the efficacy of masks has not been permitted in mainstream media coverage or in most medical journals. Let us also set aside the breach in medical ethics implied by this failure to support the scientific process in the context of community masking. These are important ethical issues that warrant discussion, but these are questions concerning scientific discourse, and Dr. Frieden’s claim is not a scientific claim at all; it is an ethical one. He claims that there is a direct parallel between our duty to avoid violence and our duty to take steps to prevent viral transmission in the case of a deadly virus; in both cases, he claims that our duty to prevent harm requires us to take or avoid certain actions. Is he correct?

The trouble with trying to bring topics in ethics into political discussions is that the former is complex and nuanced. A community of debate, where nothing is resolved beyond dispute and apparent answers always lead to further questions inevitably emerges. Conversely, the latter, politics tends towards oversimplification, and largely obliterates nuance in the desire to assert the superiority of a certain package of beliefs over its alternatives. I think it clear that Dr. Frieden’s remarks here are political, and that he is not claiming any knowledge of moral philosophy, but this is not to claim that only ethicists can debate such matters. Far from it. Moral philosophy is something we all engage in. We don’t necessarily engage in it very well, though.

Dr. Frieden’s claim can be seen as resting on two principles that he apparently holds, and believes we should all hold. First, that we have an obligation to prevent harm, for example, by not punching someone in the face. Second, that in the context of a deadly virus, those obligations extend to mitigation measures. The former seems like something we all ought to accept, although it is nowhere near as clear cut as the ‘fist’ story makes it seem. The latter presents serious problems for citizens of democratic nations.

Unless we are pacifists, our duty to avoid harm by violence is not unconditional. Police officers, it is taken for granted, are permitted to use violence to apprehend criminals, even to the level of lethal force. Likewise, many countries believe in ‘just wars,’ i.e. that there are some situations where we can possess an ethical obligation to wage war. Regardless of the values you hold in respect of these particular cases, the general point remains. The assumption that “your right to swing your fist doesn’t extend to someone else’s nose” might be an overstament. Most of us recognise some situations where violence is justified. An especially relevant case here is boxing. When people opt to conduct violence in the name of sport, no such restriction applies. The voluntary nature of that situation is crucial to understanding why protecting noses from fists is not an unconditional duty. There are situations where punching noses is expected.

Dr. Frieden’s second assumption is even thornier. Let us come back to the ‘deadly virus’ part of his claims – not because SARS-CoV-2 isn’t a deadly virus, but because there are further complexities here that need considering separately. For now, let us question the idea that where a cause of death is concerned, we are obligated to pursue mitigation measures. I learned, to my disappointment, that this principle is not one that many people share. Automobiles – by far our deadliest technology, causing around 1.2 million deaths globally every year – are an especially significant cause of death. I have argued in papers and books for nearly a decade that if we did want to mitigate this cause of death, which is frequently in the WHO’s top ten causes of death for any given year and never much below #12, we would cease to manufacture motorised vehicles with a top speed higher than 25 mph. This design choice would drop this cause of death to almost nothing, the social cost of which would be that some journeys would take longer. But we are not interested in taking this path. Why not?

It’s not the longer journeys that are at task. Even if we prohibited automobiles from travelling faster than 25 mph, and this only inside cites, while allowing such vehicles to reach faster speeds on the interstates, people would generally be opposed to this kind of intervention. We prefer much higher speed limits, even though we know those limits are routinely ignored, creating significant risks of harm that we are capable of eliminating. The problem here is that humans are actually not very good at evaluating risks or understanding the implications entailed in comparing different causes of death. But at root here it seems that civil society largely wishes to view deaths from accidental causes, like road deaths, as a risk we are willing to bear in order to keep the transportation network that we are accustomed to.

It follows that Frieden’s second implied principle, a duty to mitigate risk, is also not unconditional. Civil society makes its own judgments about which risks it is willing to consider mitigating, and which risks it is willing to bear. The United States, for instance, is willing to bear the risks of selling fast food that has enormous negative health implications; of selling cigarettes that have enormous negative health implications; of selling guns and cars, both of which entail significant consequential deaths. In all these situations, the citizens of the United States have decided that individuals are free to make their own decisions about the risks involved – even when they entail significant risk of harm to others.

But does a deadly disease upend our standards of judgement about risk mitigation? I hope it is clear at this point that Dr. Frieden’s argument rests almost entirely upon this question, and I suspect that many people who share political views with Dr. Frieden also share this ethical assumption. Yet what counts as a ‘deadly disease? Heart disease, cancer, and stroke collectively cause half of the deaths in the United States, but I think it clear this is not what is meant by ‘deadly disease’ in Dr. Friedan’s sense. If we were obligated to undertake mitigation measures for these diseases, we would ban or restrict fast food and tobacco, which would greatly extend the lives of a significant number of people. Yet as with the case of restricting by design the speed of automobiles to save lives, these mitigation measures are simply not on the table, whatever the benefits in terms of reduced mortality.

So ‘deadly disease’ is presumably a short form of ‘deadly communicable disease capable of playing a major role in bringing about someone’s death,’ a category that certainly includes SARS-CoV-2, malaria, and AIDS, which are the sorts of diseases people are likely to think about in this way. But it also includes influenza and, yes, even the common cold. Because in the immunocompromised or the elderly, these infections are ‘deadly diseases’ too. Indeed, every year prior to the arrival of SARS-CoV-2, roughly 2.5 million people around the world died of respiratory infections annually. Yet unlike the case of capping the speed of motor vehicles by design to a velocity radically unlikely to cause death, these diseases are not entirely preventable. Because although we no longer like to admit it, we all die in the end, and respiratory infections are one of those ‘end of life’ diseases that primarily affects the elderly, which is why the average age of death from complications related to SARS-CoV-2 in Europe and the United States is around average life expectancy.

Even if we accepted Dr. Frieden’s principle that we are obligated to adopt mitigation measures against infectious diseases, we would still face terrible decisions about which infectious diseases we should count as worth intervening over, and when we should disrupt aid to other nations in order to mitigate deaths from one cause of death in our own nation. 

So what should we make of Dr. Frieden’s comments about masks? A large number of people seem to agree with him completely, but I am inclined to see in this suggestion a proposal to create an entirely new society of people who believe that we must not pass infections if they might cause or contribute towards the deaths of others. I set aside the weak evidence base for community masking earlier, because Dr. Frieden’s comments make it clear that this point is unimportant – he advocates later in the article for N95 masks, and if he is sincere in these remarks he would eventually have to advocate for even stronger protective equipment, maybe all the way to Hazmat suits. Logically, the use of these protective measures would not be constrained to any crisis situation, since influenza can be passed by anyone, and will contribute to a significant number of deaths in the elderly. What is being asked for by Dr. Frieden and those who agree with him is a new form of life where everyone wears filtration masks at all times.

I trust I speak for a significant number of citizens of Europe and the United States when I say that we do not think such a form of life is desirable, and it certainly cannot be justified on the basis of any scientific evidence currently available. It is not a scientific truth but rather a political choice that living in a state of permanent masking is desirable.

Even if both of Dr. Frieden’s principles were to hold unconditionally, the behaviors that would be implied would still be open to debate. An ethical requirement to take action in the face of a deadly disease in no way specifies which actions are worth taking, especially in the absence of any public debate about the many possible mitigation strategies. There were numerous possible plans of attack – we were not restricted to masks and lockdowns in this regard. Without a debate over these possibilities, there could be no democratically justified course of action.

The truth is that there is, strictly speaking, no right to swing your fist at all, and the question of anyone else’s noses doesn’t come into the discussion. Rights are promises made by our societies that we can choose to uphold or dismiss, and the matters they are concerned with are authentic questions of political freedom. Those promises include a commitment not to force medical interventions on people against their will, a promise that entails freedoms with respect to both vaccines and face masks. We made human rights promises because we wanted to protect life and liberty from potential abuses. To renege on them – for any reason – is to reject the value of liberty and to choose to live in some other kind of world.

Those who wish us all to wear face masks in the hope that this will save lives have an obligation to pursue research and encourage scientific debate over whether this measure will be effective, and to investigate and discuss which harms are entailed in this course of action – including the terrible harms caused by singling out one cause of death to the abject neglect of all others. A society of the masked is highly likely to be far worse at limiting deaths from communicable diseases than one that combines research and scientific debate with the known strengths of our natural immune system. That this bizarre splinter society is also one that turns its back on our human rights agreements is merely the confirmation of what many of us have long suspected: that the politicization of a nasty virus now threatens to unravel civil society in its entirety.

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