This is, in some ways, part of a deeper shift in which Americans have come to rely on the private sector to set the standards for behavior that impacts health. Think of it as the privatization of public health.
Unquestionably, the private sector has a role to play in public health—just look at the private companies that produced the vaccines and the private hospitals that have cared for the ill. But to rely on it to protect the public’s health is pure folly. As the pandemic has shown only too well, private and public interests do not always align. Before COVID-19, for example, hospitals focused on their bottom line and failed to stock up on personal protective gear or extra ventilators, even though they knew a pandemic could strike. Once one did, competitive pressures also pushed many businesses, such as restaurants and meatpacking plants, to stay open and overlook the health of their employees and communities, even as they became sources of infection. To depend now on the private sector to increase vaccination rates would further underscore America’s tepid commitment to the basic principles of public health.
For much of American history, the balance between public and private was not nearly so tilted. Resistance to vaccination is not new, but at one time, vaccine mandates and other public-health laws were seen as part of the social contract, that metaphoric agreement between individuals and their government—not private institutions—that was central to early American political thought. Under social-contract theory, individuals give up some of their liberty in return for the benefits of living in a society that protects their well-being. In the early days of the American republic, citizens understood that this contract covered protection from plagues. When epidemics struck—as they regularly did—citizens gave up some liberties so that the contagion could be controlled.
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This was the view that the Supreme Court adopted in 1905’s Jacobson v. Massachusetts. In rejecting a constitutional challenge to a Cambridge, Massachusetts, law requiring vaccination against smallpox, Justice John Marshall Harlan explained that “real liberty” cannot exist “under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” As social-contract theory posits, the right to reject vaccination is one that individuals give up to live in a world without fear of smallpox.
For many decades, Jacobson served as the leading authority for the state’s power to require vaccination. Yet, even as courts continued to uphold vaccine laws, Jacobson’s social-contract roots were fraying. In recent years, public-health budgets have fallen, as Americans have spent ever more on personal health care. And despite the growing body of research showing the significant role that social factors, including poverty, education, the environment, and institutional racism play in determining our health, Americans have generally come to frame health in individual terms. To many Americans, including many of the country’s political leaders, preventing the spread of COVID-19 is largely a matter of personal responsibility. Laws that mandate masks or limit social gatherings are viewed by many as infringements on individual freedom.