As governors and mayors rush to stem the spread of COVID-19 throughout the country, and as healthcare workers make difficult resource allocation decisions, they are often treating some people differently from others. “Essential” businesses or establishments are permitted to stay open and fight for economic survival, while “non-essential” ones are forced to close, perhaps forever. Some jurisdictions, like Alaska and Rhode Island, are requiring that people traveling from elsewhere self-quarantine for a period of time.
How do we tell which policies are compatible with our guarantee of equality and which ones betray that commitment? My concern is with the general problem of how we might puzzle through the inequities that have arisen and will continue to crop up. For now, I don’t want to get bogged down too much in constitutional law or specific statutes, but instead wish to speak more generically. We’re more likely to get principles right when we separate analytically the question of what the principle of equality is supposed to accomplish from the question of who is best placed to do something about it.
Traditionally, two considerations matter the most when it comes to equality: reasons and harms. Focusing on reasons and harms helps us to develop the contours of the principle. As a society, we have collected a set of reasons for being sufficiently worried about certain forms of inequality that it motivates us to do something about them. Such justifications are important because in doing something about a form of inequality that troubles us, we are intervening to disrupt some transaction, trim some policy, or reform some institution.
By the same token, we care about the reasons offered by someone who wishes to treat people differently. Presenting the right reason can justify treating a person or group differently from another person or group. By contrast, giving the wrong reason might lead us to say the action is incompatible with egalitarianism.
A pernicious reason—say, racial antagonism or an unfounded sense of dangerousness based on a group characteristic—is impermissible because it undermines the concept of equal status. One need look no further than 1900 Honolulu, when the fear of Chinese people carrying the bubonic plague led the Board of Health to burn down the homes of sick Chinese people, or the City of Los Angeles’s choice to protect white families by quarantining a Mexican-American neighborhood in 1924. By contrast, an empirically sound reason might get the green light.
Still, reasons alone are not enough to tell us everything we need to know. At times, even an excellent reason to treat someone differently ought to be disallowed because the harm is so grave. We say this when, for instance, we think the abridgment of a fundamental or human right is too high a price to pay. A good example of this realization can be found in Skinner v. Oklahoma, where the Supreme Court didn’t so much cast doubt on the state’s goal of reducing crime as it felt that removing the reproductive organs of “habitual offenders” was too extreme, particularly when the crimes that qualified one for sterilization excluded white collar offenses. As authorized, Oklahoma’s practice raised the prospect of poor people, but not the wealthy, demographically controlled in this fashion. Similarly, when philosopher Jeremy Waldron, in his book One Another’s Equals: The Basis of Human Equality, speaks of “basic equality” as a principle, we might rephrase that commitment as one that insists a certain set of harms cannot be foisted upon an individual because doing so damages our sense of humanity.
In deciding who between the community and the individual should prevail, we’ll have to decide which kinds of harms are relevant to our calculus. Tradeoffs are unavoidable, and we have to be able to weigh the harms from inaction claimed by someone who is defending a policy, as well as the harms that may flow from allowing that policy to be implemented.
When it comes to harms, I’ve long been haunted by something that Justice Hugo Black said about the wartime internment of people of Japanese ancestry. “[H]ardships are part of war, and war is an aggregation of hardships,” he wrote in Korematsu v. United States. “All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.” His indifference towards the unequal harms of internment stung all the more since the probability of anyone acting seditiously simply because he or she was born to Japanese parents was incredibly low, and thus the harms the government sought to avoid were entirely speculative. At the same time, the harms Japanese Americans were forced to endure through indefinite detention were utterly predictable and their scale enormous.
From the standpoint of equality, these unequal harms were compounded because the presumption of dangerousness that drove internment policy denied people of Japanese ancestry equal respect, ratified racial hostility directed at them, and invited others to believe that stereotypes based on cultural differences can be legitimate reasons for denying liberties and opportunities.
What Justice Black gets terribly wrong is this: equality demands more than platitudes. The banal fact that hardships generally increase during a crisis should not be enough to relieve us from scrutinizing the distribution of those burdens. To the contrary, the principle is founded upon an ethic of shared suffering. This baseline means that, even if we aren’t always entitled to exactly what we want in the name of equality, each of us can at least expect not to be forced to bear disproportionate burdens for no good reason.
So, in assessing coronavirus policies, we must start from a presumption of shared suffering and demand good reasons from someone who wishes to depart from that baseline. An emergency may improve the salience of the reasons actually given, but it doesn’t relieve anyone from the obligation of justifying their choices.
How do we evaluate the policies of states that require travelers to self-quarantine for fourteen days with the goal of “bending the curve?” Let’s first consider an individual’s interest in mobility—characterized in American constitutional law as “the right to travel” or in international circles as “the right to migrate.” When think of this concept purposively, we see that an interest in mobility is most potent when it’s tied to ordering one’s life, executing a plan to relocate somewhere for a fresh start, or reunifying with family. Conversely, the more trivial the point of traveling, the less likely we are to say that one’s curtailed activity implicate basic values.
The nature and severity of the emergency are paramount. That the coronavirus, which causes acute respiratory illness, can be easily transmitted through the air and physical contact with asymptomatic individuals favors proactive policies. The low fatality rate from the coronavirus (anywhere from 1.6% in Germany to as high as 12% in Italy) may caution against the most draconian measures within a state’s police power, though uncertainties remain as to why some healthy individuals become severely ill. The key, though, is that we currently lack a vaccine. This justifies erring on the side of caution, though the moment we discover one, the state’s justifications should weaken.
There are almost certainly people inside the state who are infected with the virus, but if the state’s goal is to reduce the number of cases overall, then treating in-bound travelers differently from people already inside a state could help, while also preventing health care systems from being overwhelmed.
Although onerous, the hardship to an individual is limited in duration. It may seem a small price to pay to prevent the many harms associated with letting the virus ravage the population. Alaska’s approach, also followed by Hawaii and Rhode Island, treats all incomers the same regardless of citizenship or point of origin. It’s on strongest footing, even though it does exempt people who work in “critical infrastructure industries.” Unlike the use of race or religion, the solution doesn’t try to keep unwanted individuals out completely for who they are, but instead imposes a temporary condition based on a probability that travelers might be infected.
That a state is already requiring residents to stay at home indicates that the burdens of fighting coronavirus are being broadly shared, rather than foisted on one group alone, and we can thus rule out the possibility the state is trying to oppress a despised minority. Self-quarantine is understood as slightly more onerous than a shelter in place order, which in turn is more onerous than a requirement to engage in physical distancing, but these differences may be of degree rather than kind.
Apart from search-and-seizure concerns, which aren’t trivial, the equality issue is whether states can use point of origin as a proxy for probability of infection. As cases go up around the country or from certain hot spots, that proxy becomes more reliable; as cases disappear, its usefulness fades. As a criterion its usage can also be less intrusive to liberty and wreak less economic damage by permitting travelers from all other places to freely come and go. Moreover, point-of-origin restrictions are employed at the country’s borders to restrict the entry of potentially dangerous individuals, goods, or diseases, and the same logic would seem to apply here.
Originally, Rhode Island and Florida singled out travelers from New York for roadside stops. But those approaches left governors scrambling to justify that differential treatment—did it rationally slow the spread of the disease or merely scapegoat one set of outsiders? Rhode Island has since wisely expanded their orders to encompass all inbound travelers.
Texas and Florida, however, have stuck with a more targeted approach, working from a more limited list of hot spots. While defensible, the drawback is that they have had to update their list every few days, leaving everyone wondering whether they are getting ahead of the crisis or constantly playing catch up.