Do vaccine passports really ‘crush freedom’?

Or would requiring them ‘safeguard’ our liberty?

Your Turn

The conflict over vaccine passports: Do they “crush freedom” or “safeguard” it?

As the highly transmissible “delta variant” spreads and new cases spike, many people are once again masking and demanding “vaccine passports” — documents that would vouch for a person’s COVID-19 vaccination status as a requirement of access to government services, schools, transit and even private businesses.

Rep. Brandon Reed, R-Hodgenville, however, thinks vaccine passports would violate our “fundamental freedoms,” and so has prefiled bill, BR-65, which would ban them. Envisioning a world of coronavirus vaccine passports, he warned, “Kentuckians will not accept this kind of government overreach.”

Reed’s invocation of “fundamental freedoms” against “government overreach” might ring hollow, inasmuch as BR-65 would not only apply to government agencies — as Indiana’s similar legislation does — but would forbid private business owners to decide for themselves how to maintain their own, their employees’ and their customers’ safety. The libertarian philosopher Andrew Cohen — discussing a similar Florida law — characterizes politicians like Reed as “confused. You do not enhance freedom by crushing it.”

Reed might reply that it’s not just governments that coerce people, it’s also powerful private entities like corporations. Suppose you need bread and milk, but everyone who has what you want – Meijer, Walmart, Kroger – refuses you entry into their store. Now you are prevented from going about your life as you see fit, because the people who have what you need to feed your family won’t do business with you. If you’re unable to acquire bread and milk, your freedom is stunted, whether it’s the government or Sam’s Club that stops you.

So who’s right? Does BR-65 “crush freedom” or “safeguard” it? Are vaccine passports “governmental overreach,” or is banning them the overreach?

These conflicts arise because “freedom” means more than one thing, and each sense captures something important and worth protecting. One sense understands “free” to mean legally optional: you are legally free to do whatever the law neither forbids nor requires. Hence, free trade, free association and freedom of religion have to do with the government neither compelling you to exchange, interact, or believe in any particular way, nor preventing your doing so as you please and can afford.

BR-65 reduces our legal freedom by forbidding private businesses to decide who may enter and remain on their property, forcing them to associate with and cater to people against their will.

But legal freedom isn’t the only freedom that matters. “Agency” freedom is the ability to live as we choose, without subjection or deference to arbitrary power, be it governmental, economic or psychosocial. From this perspective, BR-65 could free people – vaccinated or not – to live as they choose without worrying about a business owner’s whims.

Two important facts are now clear.

First, legal freedom alone is inadequate for free agency. Sen. Rand Paul revealed as much when he criticized the 1964 Civil Rights Act for reducing the legal freedom of white-owned businesses, asking, “Does the owner of the restaurant own his restaurant? Or does the government own his restaurant?”

Sen. Paul’s ham-handed conflation of freedom with property rights hides the second important fact: People’s choices and interests inevitably conflict, and so a free society is one where we’ve intelligently balanced these interests in a way that ensures, so far as possible, equal freedom for all to do things that matter for a good life. A democracy enables us to deliberate together about how to find this intelligent balance.

Rep. Reed’s bill recognizes what Sen. Paul doesn’t: that property empowers owners to restrict others’ choices in ways that upset this balance.

But would BR-65 find the right balance? It would protect unvaccinated people’s agency freedom to live normally by restricting business owners’ legal freedom to control whom they do business with. Rep. Reed has a point. People who are involuntarily unvaccinated due to age, health or lack of access would be further harmed if necessities and government services were inaccessible. Requiring others to accommodate them infringes legal freedom, but liberates the involuntarily unvaccinated in important ways that could justify that infringement.

But what about those who voluntarily refuse vaccination? Voluntary refusers infringe others’ agency freedom by imposing potentially fatal health risks on everyone they interact with, especially the involuntarily unvaccinated who may be forced to stay home to avoid the risks thereby imposed. By guaranteeing these refusers’ legal freedom, Rep. Reed gives them the power to step on others’ agency freedom. So how do we find an intelligent balance of important freedoms? We need to evaluate: What essential interests or needs are these voluntary refusers pursuing? Are they simply free-riding on others, expecting the rest of us to achieve herd immunity without their help? Are they indulging disinformed fantasies of resistance?

Unless voluntary refusers have realworld explanations of significant interests that their choice safeguards, it is perfectly reasonable for business owners, schools and colleges and others not to accommodate them. We have no duty to accept the risks and unfreedoms they impose on us. We should prioritize the freedom of the involuntarily unvaccinated and others who are doing their part to end the pandemic.

Rep. Reed’s invocation of “fundamental freedoms” and “government overreach” thus obscures the moral questions we need to grapple with if we want to share a society where our interests often conflict. If we don’t deliberate democratically about these things, then money and power will win every time, and appeals to “freedom” will all just be cover for the interests of a few.

Like Rand Paul and Brandon Reed, we’ll fall into a perverse pattern of allowing immoral biases, like the property owner’s legal freedom to racially discriminate, or the voluntary refuser’s legal freedom to risk our health, to interfere with important values such as the agency freedom to live our lives without fear of racial discrimination or a deadly pandemic.

CHALFFY/GETTY IMAGES Questions continue to mount about how a COVID-19 vaccine passport program would work. Kentucky has a bill that would ban them.