Ethics of Selective Restriction of Liberty in a Pandemic

Liberty-restricting measures are basic measures in combatting any pandemic. But whose liberty should be restricted? One standard response in public health ethics is to appeal to the “least restrictive alternative” necessary to achieve a public health goal. But in practice greater restriction of liberty can lead to greater control of the pandemic and save more lives, though with increasing burdens to others. Liberty restriction is thus a question of the distribution of benefits and burdens in a population, a question of distributive justice. This chapter argues that in some pandemics, such as COVID-19, it may be a more proportionate restriction of liberty to restrict the liberty of certain groups rather than the population as a whole. Two arguments were given in the COVID-19 pandemic for liberty restriction: protection of the vulnerable, and protection of the health service. These are, however, more fundamentally issues about distributive justice. The chapter explores how several approaches to distributive justice can support the differential restriction of liberty. In addition, it argues that the commonly accepted justification for liberty restrictions (that liberty restrictions may be justified to prevent direct harm to others) can be overly simplistic, as illustrated by the COVID-19 pandemic; that where risk groups are more likely to utilize limited health resources, they pose an indirect threat to others that warrants coercion; and that there should be a side-constraint on justice of non-maleficence. The chapter addresses the issue of whether selective restriction of liberty constitutes unjust discrimination and proposes an algorithm for making decisions.