In fact, libertarian criticism of the regulatory state has been frequently vindicated. Libertarians have developed ideas for how to compensate those affected by business closures, take better advantage of testing, and develop and distribute vaccines more rapidly. Libertarians can also rightly condemn some of the worst actors in the pandemic, from anti-maskers violating private property rights to the prison system’s oversight of the nation’s largest outbreaks.
There are libertarians in a pandemic, and it turns out they have some good ideas and insightful critiques.
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The American pandemic response was beset by government failure from the very beginning. In February of 2020, the most urgent priority in the United States was deploying COVID tests to identify cases, survey the extent of the virus’s spread, and attempt to contain it. Although the World Health Organization had already developed a working test, the Centers for Disease Control designed its own from scratch. The CDC test turned out to be unworkably flawed, reporting false positives even on distilled water.
Around the same time, Health and Human Services Secretary Alex Azar declared a public health emergency. Ironically, one effect of this declaration was to forbid clinical labs from creating their own tests without first obtaining an emergency use authorization from the Food and Drug Administration. Bureaucratic hurdles — which included pointless requirements to send files by mail and to prove that the tests would not return false positives for MERS and the original SARS virus — slowed development. The early outbreak in Washington was uncovered in part by researchers simply defying the CDC to test samples without permission.
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In the healthcare field, states responded by easing licensing requirements to allow medical personnel to practice across state lines and increase access to telehealth. In some states, ride-share companies expanded non-medical transportation and got into pharmaceutical delivery, thanks to waived regulations. The FDA relaxed enforcement of rules to speed the production of respiratory devices and personal protective equipment. The agency also allowed distillers to pivot from spirits to hand sanitizer, albeit with strict denaturing requirements that needlessly raised costs and reduced supply.
As indoor dining plummeted due to mandated closures and the risk of airborne transmission, the hospitality industry benefited immensely from cities allowing more use of outdoor spaces and expanding the legality of outdoor drinking, both of which made urban environments much more livable and fun. All of it went to show how unnecessarily prohibitive the rules had been before COVID. Alcohol has been deregulated in ways that would have been unimaginable a year ago, with states tearing down barriers to home delivery and allowing bars and restaurants to serve cocktails to-go. These changes are nice for consumers, but more importantly, they provide a lifeline to struggling businesses and hospitality workers.
As of August, Isabelle Morales of Americans for Tax Reform had documented more than 800 regulations waived in response to COVID. While some of these will eventually come back into force, the pandemic has revealed how regulations often inhibit flexibility. In many cases — consulting our doctors over the internet, enjoying outdoor spaces, getting cocktails with our takeout — we’re simply better off without them.
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The largest COVID outbreaks in the United States are in our prisons and jails. Data collected by the Marshall Project and the Associated Press finds that 275,000 prisoners have been infected and that more than 1,700 have died. One in five prisoners has had the virus, about four times the rate in the general population. In some states more than half of the incarcerated population has been infected. These outbreaks can seed wider spread in surrounding communities.
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Governments from New York to California to Florida have instituted and walked back outdoor restrictions such as shutting down beaches and closing parks and playgrounds.
Epidemiologist Julia Marcus noted early this summer that these heavy-handed approaches drive socializing indoors where the risk of transmission is higher and that coercive policing of social distancing disproportionately impacts minorities while undermining trust. A better approach would focus on harm reduction, recognizing humans’ social needs and encouraging the safest ways to meet them.
Relatedly, people will act independently to ignore restrictions when they perceive risk to be low and to mitigate danger when they perceive it to be high.
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One of the most astonishing facts of this pandemic is that the Moderna vaccine was designed on January 13, 2020, before most of us had even heard of the then-novel coronavirus and before any American had died from it. Other vaccines followed very soon after. For nearly the entire run of the pandemic, which has taken 400,000 lives in the United States and more than two million globally, the tools were available to stop the disease, if only we’d known how to test, produce, and distribute them more rapidly.
Libertarians, as well as others on the ideological spectrum ranging from Peter Singer to Sally Satel, made the case for using human challenge trials to accelerate the testing of vaccine candidates. The website 1 Day Sooner signed up more than 38,000 volunteers to take part in them. Others, including many bioethicists, objected that volunteers could not give meaningful consent to the potential danger. Yet the risk of participating would likely be comparable to that of donating a kidney, another altruistic medical decision that ethicists discouraged in the recent past. Every day without a vaccine also shifts COVID risks onto healthcare workers and others in the general population, including those more vulnerable than likely trial volunteers. If human challenge trials can accelerate vaccine development, there’s a strong case for respecting the autonomous decisions of volunteers to take part in them.
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The dreadfully slow rollout of vaccines embodies the perils of central planning. Despite the scarcity of doses, states are struggling to use their allocations. In some instances, unused doses are ending up in the trash. The most successful states and countries, such as Israel and Connecticut, have emphasized speed and flexibility over rigid adherence to vaccinating people in the “correct” order. Simple rules work better than elaborate plans and doses do more good in bodies than on shelves or in the garbage. Strict compliance with demands to vaccinate only certain groups threatens to undermine the goal of simply getting enough people vaccinated to reduce transmission.
While states struggle to put their vaccines to use, people are also queuing for hours in hope of securing near-expiration doses that would otherwise go to waste. This is a predictable outcome of setting a price ceiling of zero dollars.
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Combatting the spread of infectious disease is a legitimate function of government under many libertarian conceptions, and the unprecedented scope of COVID justifies a lot of government activity that libertarians would find unreasonable in other circumstances.
Still, it’s worth contemplating what a more libertarian response to the pandemic would have looked like.
- We would have had more and better testing available during the earliest outbreaks when that would have helped slow the spread of the disease.
- We would have more and better testing now and the freedom to test ourselves at home, empowering us to discover when we are asymptomatic and contagious.
- We would have more vaccines, faster, available to more people.
- We would have smaller prison clusters, more people freed on compassionate release, and fewer of us imprisoned in the first place.