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University of Arkansas at Little Rock Law Review

Article Title

Liberty and Health

Authors

Frank Griffin

Document Type

Article

Abstract

Liberty is the essence of human nature and is necessary for optimal health. During the COVID-19 pandemic, the government placed unprecedented restrictions on personal liberty in the name of public health, confining millions of Americans to their homes, forcing hundreds of thousands of businesses and parks to close, shuttering abortion clinics, heavily regulating churches, monitoring gatherings in private homes, restricting interstate travel, and shifting disease burdens onto protected populations. Personal liberty is sustenance for individual health. Medical principles of patient autonomy, patient privacy, and social justice are closely related to legal concepts of personal liberty, the liberty of constitutional privacy, and the liberty to be free from discrimination. This article defines liberties as active or passive for public health purposes. Active liberty is the liberty to do, and passive liberty is the liberty not to be done to. Restrictions on active liberties—like stay-at- home orders, business closures, and gathering size restrictions—tend to cause inactivity and lead to related side effects like social isolation, financial distress, and medical distancing. Restrictions on passive liberties—like quarantine, contact tracing, and intrusion into private homes—lead to more insidious health side effects related to discrimination and privacy-protective behaviors, in addition to social isolation, medical distancing, and financial distress. This paper examines how active and passive liberties were restricted during the COVID-19 pandemic and the side effects of those restrictions. This paper also advocates for a holistic approach to public health policy that incorporates the health effects of liberty and the side effects of restrictions of liberty into public health policy, following principles of the practice of medicine, which requires the artful application of science to disease in ways that account for human frailties. Often protecting liberty preserves health. Many medical research studies have found evidence of health side effects of the public health measures instituted throughout the pandemic, which are discussed here. Liberty is a fixed star in the American Constitutional constellation that is vital to the health of her citizens, and “no official, high or petty,” should prescribe public health measures restricting active or passive liberties without recognizing and understanding their side effects.

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