Too often, policymakers are resorting to law enforcement and national security-oriented measures that not only suppress individual rights unnecessarily, but have proven to be ineffective in stopping the spread of disease and saving lives.

The notion that we must “trade liberty for security” is both false and dangerous. It is false because coercive actions are seldom conducive to public health protection. It is dangerous because it provides a never-ending justification for the suppression of civil liberties while failing to safeguard public health.

In March 1900, a city health officer in San Francisco autopsied a deceased Chineseman and found bacteria that were suspected to cause Bubonic Plague. In response, health officials established a quarantine around Chinatown and forcibly removed whites from the affected area. Later, officials required people of Chinese ancestry to be vaccinated with a dangerous experimental vaccine before traveling. When a federal court correctly found that measure unconstitutional,3 officials responded by quarantining Chinatown anew, drawing a contorted map that included only the homes and businesses of Chinese-Americans. The federal court also found that action unconstitutional. Not only did the quarantine violate the Equal Protection Clause, the court found, but also, by confining everyone—healthy or sick—together, it was more likely to spread disease than to contain it.

Likewise, when smallpox arrived in Boston in 1902, health officials, accompanied by police officers, forcibly vaccinated immigrants and African Americans. Although the Supreme Court later upheld the authority of a city to fine individuals who refused vaccination during an epidemic, the Court never approved forcibly vaccinating people.

In contrast, New York City relied on a different approach in 1947, one that viewed the public as the client rather than the enemy of public health. When smallpox reappeared in the city after a long absence, the city educated the public about the problem and instituted a massive voluntary vaccination campaign. Not surprisingly, no coercion was needed. Provided with information about the need for and benefits of vaccination, and reassurance that the city was helping rather than attacking them, the citizens of the New York turned out en masse for one of the world’s largest voluntary vaccination campaigns. The campaign was successful, and the epidemic was quashed before it had a chance to spread broadly in the city or beyond.

In another case, a 27-year-old TB patient named Robert Daniels was involuntarily　quarantined in Phoenix, Arizona in July 2006 for disobeying an order by Maricopa County　health officials to wear a face mask in public at all times. He admitted that he on occasion　did not wear his mask, and stated that he was not aware of the seriousness of his disease,and that things had worked differently in Russia where he came from. Instead of being pressured to comply, or even placed in a locked hospital isolation and treatment room, Daniels　was turned over to the Sheriff and treated as if he were a jail inmate. He remained in solitary confinement in the jail ward for nearly a year without access to showers or hot water, or　even a view of the outdoors. His mail was censored, he was not permitted reading materials,and he was monitored by a video camera 24 hours a day, with no respite for private activities. As in the Speaker case, the treatment of Daniels was utterly counterproductive.Instead of being treated, he was subject to unhealthful and psychologically depressing conditions that reduced his likelihood of recovery, and placed in a jail which did not have the facilities(such as ventilation systems) for the proper treatment of an infectious respiratory disease.He was finally released for medical treatment and surgery to remove a lung in　Denver after ACLU lawyers filed suit protesting the inhumane and unconstitutional conditions of his confinement.　Eventually, physicians discovered that Daniels, like Andrew　Speaker, had a less dangerous form of TB than was initially suspected. Even after he was treated and no longer contagious, Daniels continued to be handled　like a criminal. Sheriff Joe Arpaio publicly threatened him with prosecution for the pre-quarantine events, and Daniels was forced to return to Phoenix in July 2007 under a court order,where he lived in a motel and was to remain under supervision of the county health department for the next year-and-a-half. But Daniels had had enough of Phoenix; in October 2007 he fled back to Russia to be with his wife and 6-year-old son.

Public health rationing of anti-viral medications and vaccines, on the other hand,involves populations, not individuals. Nonetheless, the ethical and legal considerations are similar, although instead of trying to save individual lives, one is trying to save large numbers of unidentified lives. A reasonable public health approach, and one most often advanced on the basis of efficiency or utility, is to allocate vaccine in a way that maximizes the total number of lives saved, or the total number of years of life saved. But these allocation schemes are likely to be unknowable at the beginning of a pandemic (e.g., when it is unknown which populations, such as infants, children, teens, or the elderly are most at risk).Also, while it is likely that almost everyone will want, and even demand, access to vaccine—the right to refuse to be vaccinated should be honored. No one should be forced to be vaccinated against their will both because of the constitutional right to refuse treatment, and pragmatically because forced vaccination will deter at least some people from seeking medical help when they need it