A COVID Constitutional Crisis: Individual Rights vs. the General Welfare

Photo by Branimir Balogović | Unsplash


Photo by Branimir Balogović | Unsplash

Epidemiologic and surveillance data on Covid-19 infections show that preventive Covid vaccination rates have fallen, infection rates and hospitalizations are rising, the highly contagious Delta Covid-19 variant has taken over. The Delta variant is now 83% of sequenced isolates according to CDC, and the unvaccinated population is the target for this new rising epidemic.


Tragically, unlike the older variant of the virus, the Delta has been shown to produce a higher number of serious cases among younger, seemingly fitter populations. Children, in particular, are at much higher risk for long-term neurologic consequences than adults seem to be, and no vaccine is approved for children under the age of 12.  Furthermore, while vaccinated individuals have effective protection against all COVID-19 variants, it is now clear that immunized individuals can still acquire and transmit the virus to others.  The US population as a whole is nowhere near the 70 percent immunity rate we need to reach herd immunity.


This pandemic has caused a national crisis the likes of which I have never seen in my 40-odd years of research and practice in pediatrics, pediatric infectious diseases, and infectious disease epidemiology. This pandemic has revealed many holes in our healthcare infrastructure, but a uniquely American dilemma has to do with the conflict between rigid defenders of individual rights and public health proponents who focus on general welfare.


This tension has been magnified several times over by social media platforms and commercial broadcast outlets who allow misinformation to flourish. A widely publicized study by The Center for Countering Digital Hate found that 65% of all anti-vaccination misinformation was perpetrated by 12 people – many of whom are still on social media. Tucker Carlson and Laura Ingraham regularly undermine the scientific community on their nightly Fox News shows.


Much of the misinformation these actors perpetuate is grounded in the concept and belief that one’s individual rights supplanting the general good. This ethos is so rampant that a common defense for many vaccine-hesitant or anti-vax Americans is rationalizing their decision as a personal choice that has no consequences for their family or wider community.


Public health as a medical discipline for research, practice, and the situational application did not exist when our Founding Fathers wrote the Constitution; however, “promote the general welfare” was a prime reason for the ordaining and establishment of the U.S. Constitution. The phrase is written into the first sentence of the Preamble of the document.  Over the centuries since then, a legal precedent for public welfare overriding individual liberties has been well established. The most relevant legal precedent stems from the Supreme Court case Jacobson vs. Massachusetts in 1905, which upheld the constitutionality of a state law requiring compulsory vaccinations against smallpox.


 Vaccine resistance and misinformation are not new, but they have been historically isolated to the fringes of American society. Much of the public had no qualms about medical treatments for polio, measles, mumps, and chickenpox when they were endemic diseases in our society.  The idea of “promoting the general welfare” was a fully operational principle, and when vaccines for all these were developed and implemented, no one argued when they were made mandatory for children for school entry.


The reason why was because immunizations clearly worked. They protected children and adults and practically eliminated the societal burden of the diseases they protected against.  Furthermore, the information ecosystem was much more contained and healthier. Most adults knew first-hand the horrors these diseases could cause, and there weren’t social media apparatuses that facilitated the spread of nonsense.


The modern disinformation ecosystem has cultivated a sense of complacency about the illness and its consequences. Many hesitant Americans are making medical decisions based on medical misinformation or misguided beliefs in individual liberties. To counter this way of thinking, we must not only provide sound medical information but also simultaneously “promote the general welfare” as a guiding principle of our vaccination effort.


The current wave of individual resistance to COVID vaccination, especially in the face of the Delta variant, is very dangerous to our society. To paraphrase Dr. Anthony Fauci, if current anti-vaccine attitudes and misinformation had been prevalent in the late 20th century, Polio and other childhood diseases would still be here in America.


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