The American Journal of Bioethics

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Vexing, Veiled, and Inequitable: Social Distancing

and the “Rights” Divide in the Age of COVID-19

Amy Fairchild, Lawrence Gostin & Ronald Bayer

To cite this article: Amy Fairchild, Lawrence Gostin & Ronald Bayer (2020) Vexing, Veiled, and
Inequitable: Social Distancing and the “Rights” Divide in the Age of COVID-19, The American
Journal of Bioethics, 20:7, 55-61, DOI: 10.1080/15265161.2020.1764142

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Published online: 19 May 2020.

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THE AMERICAN JOURNAL OF BIOETHICS
2020, VOL. 20, NO. 7, 55–61
https://doi.org/10.1080/15265161.2020.1764142

TARGET ARTICLE

Vexing, Veiled, and Inequitable: Social Distancing and the “Rights” Divide in
the Age of COVID-19
Amy Fairchilda, Lawrence Gostinb, and Ronald Bayerc
a
The Ohio State University College of Public Health; bGeorgetown University Law Center; cMailman School of Public Health

ABSTRACT KEYWORDS
Although unprecedented in scope and beyond all our life experiences, sweeping social dis- Public health; history
tancing measures are not without historical precedent. Historically, racism, stigma, and dis-
crimination resulted in grossly inequitable application of disease containment measures. But
history also provides examples in which broad measures enjoyed remarkable public support.
When it comes to COVID-19, blame and division continue to shape containment responses.
But the COVID-19 pandemic also resonates with moments in which there was broad social
support for containment precisely because lockdowns or stay at home orders are, on the
surface, remarkably equitable. Yet even in a context in which a majority of Americans sup-
port social distancing, small but coordinated conservative groups are challenging social dis-
tancing as a matter of individual rights. In sharp contrast, vulnerable populations, who bear
the heaviest burden of disease, have claimed a right to social distancing as a matter
of protection.

“The ‘Flu’ Is After Us,” ran a headline in Gunnison
News-Champion, the newspaper of a small mountain
town in Colorado (Gunnison News-Champion 1918).
The October 18, 1918 story outlined the social dis-
tancing measures that Gunnison would take to try to
stave off spread of pandemic influenza. Absolutely no
meetings, indoors or out, would be allowed.
Congregating on the streets was prohibited. The
schools were closed.
As the epidemic advanced in Colorado, local health
officials decided to blockade the entire county “against
all the world” (Carroll 2020). They diverted automo-
biles, barricaded the major rail line into Gunnison,
and prohibited people from entering the community
without submitting to a two-day quarantine. In an
epidemic that killed some 40 million worldwide and
more than 500,000 in the U.S. alone, this Colorado
county reported only two cases and no deaths.
Gunnison was one of many communities that
enacted sweeping protective measures in response to
pandemic influenza. Communities across the nation
required citizens to wear masks, canceled church and
school, staggered business hours, and in some instan-
ces closed business and transportation lines
(Peever 2020).
Our response to the COVID-19 pandemic, caused
by the virus SARS-CoV-2, may be unprecedented in
scope, but isolating individuals who are infected with
a disease, quarantining those exposed, establishing
cordon sanitaires (what we hear refer to in the media
as a “lockdown”) around an entire country, or enact-
ing sweeping social distancing measures are not with-
out historical precedent. But what we are experiencing
now is beyond all our life experiences.
What we can learn from looking at the application
of these different measures across a range of diseases
that stir fear and often panic is that these remarkable
displays of community or government authority—
sometimes heavy-handed but typically widely socially
accepted—were not equal in the ways they treated
groups within society. So often diseases turn us
against “the other,” blaming countries and even
particular ethnic communities.
As we consider the current COVID-19 pandemic,
we see broad continuity with the vexing historical
theme of blame. But we also see an important divide
over social distancing emerging. On the one hand, we
argue, the nature of the threat has created a remark-
able degree of consensus about the importance of
measures that leave almost no one untouched. At least

CONTACT Amy Fairchild Fairchild.139@osu.edu The Ohio State University College of Public Health, Dean’s Office, 1841 Neil Avenue, Columbus, OH
43210, USA.
ß 2020 Taylor & Francis Group, LLC
56 A. FAIRCHILD ET AL.
notionally, social distancing applies equally to all in a
political context marked by social polarization.
On the other hand, the pandemic is changing the
nature of ethical and legal reasoning about the meas-
ures required to justify such sweeping intrusions. It
was perhaps inevitable that small but vocal conserva-
tive groups, supported by the President, would
increasingly make the case against any ongoing intru-
sion on economic liberty, despite continuing biparti-
san support. At the same time, even when applied
equally, containment measures can and do create vast,
veiled inequities. Ironically, although we so often
frame them as a government intrusion that requires
safeguards to prevent misuse, the lack of access to
appropriate social distancing and quarantine measures
is being expressed in terms of rights to protection.
LEARNING FROM HISTORY
In September 1888, the postmaster in Cairo, Illinois,
dispatched a telegram to Washington, D.C. warning
that the “country below is in the hands of a howling
mob” (The Atlanta Constitution 1888). Yellow fever
terror radiated from the Deep South. It was one of
many unwanted visits from “Yellow Jack” in the years
after the Civil War—a plague causing painful, grue-
some death. The cause was unknown but the disease
was popularly connected to the exchange of infected
bedding and clothing (Humphreys 1992).
Locals not yet touched by disease often cast a broad
quarantine net around surrounding communities. In
the absence of permanent public health officials or
institutions, coalitions of citizens and elected officials
living in uninfected areas sometimes took up arms to
impose “shotgun” quarantines to fend off outsiders. In
Jackson, Mississippi, residents ripped up railroad
tracks leading into the city in 1897 (Chicago Daily
Tribune 1897, 3). The targets of such reactive
“shotgun” quarantines were typically middle- and
upper-class citizens with the resources to attempt to
flee a community touched by the disease, hoping to
find an uninfected town. In Jackson, even the gov-
ernor was barred from entering “his own capital,” as
“the public officers had no respect of persons in
enforcing the rule” (M’Laurin Gov. 1897, 3).
The classic American example of a race-based cor-
don sanitaire—the lockdown of an entire area—comes
from San Francisco at the turn of the 20th century. In
1900, the operators of a shabby hotel in Chinatown
found Chick Gin, a local resident, dead in the hotel’s
basement. At the first suspicion that he died of
plague, city officials ordered the evacuation of all
white residents. Chinese residents, in contrast, were
blockaded inside the district’s perimeter (Craddock
2000, 126–128). A federal court struck down the lock-
down, saying it operated “with an evil eye and an
unequal hand” (Yick Wo v. Hopkins 1886).
During the 1916 polio outbreak in New York City,
despite a summertime tradition of charitable organiza-
tions sending poor mothers and children to the coun-
try to restore their health, officials prohibited poor
residents from leaving. Wealthy families, of course,
continued to try to flee to mountain resorts or coastal
homes (Rogers 1992a, 33–34) meaning that the effect-
ive barricade applied only to immigrant families and
the poor, who lacked the resources to leave.
At this stage in American history, identifying car-
riers of poliomyelitis, also known as infantile paralysis,
was not yet possible. Neighboring states enacted what
the Pennsylvania State Health Commissioner called
“radical measures”: quarantines against New York
travelers (Rogers 1992c, 35). Even cities within New
York State barred New York City residents from
entering or even traveling through (Rogers 1992d, 36).
Others instituted two-week quarantines for nonresi-
dents. The New York experience with polio was one
repeated throughout communities in the U.S. in the
hot summer months.
Not only during the 1916 polio outbreak but
throughout the first half of the 20th century, com-
munities closed pools, delayed school openings, and
canceled parades. They barred children from church,
the circus, and theaters (Rogers 1992b, 40–43).
In the early years of the AIDS pandemic in the
mid-1980s and early 1990s, calls for broad limitations
or restrictions on those with HIV were denounced as
homophobic and lacking scientific merit. The notion
that public health and human rights were intimately
connected took hold, challenging long-held assump-
tions that, in an urgent situation, the interests of
population health always trumped the rights of indi-
viduals. Any effort to treat people infected with HIV
differently or exclude them from work, housing or
care was viewed as highly stigmatizing (Oppenheimer
and Bayer 2009). Stigma emerged as a profound threat
to effective public health (Fairchild and Bayer 2017).
The outbreak of multi-drug-resistant tuberculosis
that dovetailed with the AIDS epidemic provided an
urgent justification for imposing isolation on individ-
uals with active tuberculosis, an airborne disease. But
because of the ways in which AIDS had established
the importance of individual rights, the imperative to
impose limits on those who were infectious was
bounded by important legal protections for the

individual. Thus, AIDS helped to usher in a moment
in which the state was required to seriously consider
the rights of individuals (Fairchild et al. 2007).
It is remarkable, then, that in the early 1990s, after
Haitian asylum seekers tested positive for HIV in
Belize and Honduras, the U.S. Coast guard began test-
ing all Haitian refugees intercepted at sea for HIV.
The Coast Guard had already been intercepting
Haitians fleeing their country by boat and conducting
shipboard screenings to determine potential eligibility
for asylum. The Coast Guard transferred all who
seemed to qualify for asylum to the U.S. military base,
Camp Buckley, on Guantanamo Bay, Cuba.
By 1993, more than 200 refugees who had tested
positive for HIV, along with their families, were quar-
antined in an overcrowded, unsanitary camp sur-
rounded by razor wire. Some of the earliest arrivals
had been, in 1993, interned for more than 2 years
(Fairchild and Tynan 1994).
Over the course of American history, quarantines
and lockdowns have often targeted groups unfairly
and often on the basis of race, class, or national ster-
eotypes (Abel 2007). Ultimately, they reflect stories of
blame that resonate today. In some cases, like the
actions in Chinatown and the waters off the coast of
Haiti, liberty-limiting measures were challenged in the
courts. In others, like the 1918 influenza pandemic
and polio outbreaks, they reflected a broad social con-
sensus (Fairchild et al. 2020). And here there is a far
more complex story that underscores the ways in
which COVID-19 reflects longstanding themes but is
changing the language of rights in potentially conse-
quential ways.
BLAME AND DIVISION
One way to understand the past approach to disease
and containment is to read it in a story of blame and
social division. From that perspective, there are key
continuities between the past and the present.
Since COVID-19 originated in an animal wet mar-
ket in Wuhan, it has been China and its government
and people that have been at the center of global con-
troversy. Sadly, people of Asian descent have been
blamed and scapegoated in the United States and the
West. At the same time, the two world superpowers
have blamed the other, with the World Health
Organization caught in the middle. Conspiracy theo-
ries have been ablaze. Chinese social media has
swirled with the idea that the United States military
engineered the novel coronavirus, SARS-CoV-2, while
social media in the United States has pointed the
THE AMERICAN JOURNAL OF BIOETHICS 57
finger at a secure biological research laboratory near
Wuhan. Neither conspiracy theory is backed
by evidence.
The “finger of blame” has greatly impeded the glo-
bal response. Even the March 2020 G-7 summit, which
planned to align big powers in their response to
COVID-19, broke down with bitter recriminations.
G7 countries were unable to even issue a consensus
statement. Why? The United States insisted the state-
ment refer to “the Wuhan virus” rather than WHO’s
official designation of COVID-19. Europe refused to
go along with President Trump (Lee 2020). Tellingly,
to this day we call the Great Influenza Pandemic of
1918, the “Spanish flu,” but in reality, that pandemic
began in the United States. We never called the H1N1
Influenza pandemic of 2009, the “US flu” even though
it originated in the United States and Mexico.
President Trump withheld funding from the World
Health Organization, which amounted to $553 million
last year (Trump halts World Health Organization
funding 2020), claiming it “very much sided with
China” in the COVID-19 response (Trump Lashes Out
at WHO 2020). Of course, there are no “sides” in a
pandemic. Yet this coronavirus pandemic has divided
the global community. And it has deepened longstand-
ing divides here in the United States. Much of the div-
ide is political but also based on class, education, and
geography. But perhaps most remarkable, because of
the scope and scale of the COVID-19 pandemic and
the knowns and unknowns about its spread, we are
also seeing a transition in the ethical and legal dis-
course around liberty-limiting restrictions.
SOCIAL DISTANCING AS RESTRICTION
Although in large measure our current approach, in
which the need for procedural transparency goes with-
out question precisely because of historical examples
that underscore the place of the law in protecting
individuals or stigmatized groups from arbitrary gov-
ernment action, more striking than the continuities
are the discontinuities with the past.
At the outset of the COVID-19 pandemic, ethical
and legal analysis of the use of quarantine was rooted
in a Constitutional rights approach to containment.
SARS seemed to provide a relevant model. Following
the SARS outbreak in Ontario in 2003, targeted quar-
antines were effective. Health officials imposed “work”
quarantines on health workers, so they could travel
only between home and hospital. Along with other
traditional public health prevention measures they
were credited with containing a pandemic. Yet it was
58 A. FAIRCHILD ET AL.
also impossible to deny, in retrospect, that large-scale
quarantines had been too sweeping.
We wrote a piece justifying reliance on precaution
in the case of SARS, making the case that the risks in
a context of uncertainty made it necessary to err on
the side of containing the disease. At that time, we
also made a strong case for procedural due process. In
2003, we wrote in the pages of JAMA, “Due process
requires the right to be heard by an independent tri-
bunal in a timely manner with representation by an
attorney. The US Supreme Court has noted that civil
confinement constitutes ‘a significant deprivation of
liberty’ that ‘can engender adverse social consequen-
ces.’ Although some may argue that home quarantine
need not trigger a full-blown hearing, we believe that
anyone deprived of liberty under color of law, what-
ever the place of confinement, should have available a
due process hearing. In a public health emergency, it
may be necessary to confine individuals before a hear-
ing is held, but a speedy hearing should, if requested,
follow. We make these observations aware of the vast
logistical complications of hearings in the event of
mass quarantines” (Gostin et al. 2003, 3234).
That remained our position at the outset of the
COVID-19 pandemic. Even as it became clear that
COVID-19 represented a threat that would justify
even more rigorous interventions–indeed, at levels
that US citizens had not experienced since 1918–the
approach remained one in which it was vital to care-
fully balance public health with rights to privacy and
liberty. In the balancing process, officials should
ensure that interventions were evidence-based, pro-
portionate, and no more restrictive than necessary.
The standard was individualized assessments of the
risk posed by the person whose liberty is being
deprived (Gostin et al. n.d.). Precisely because
COVID-19 was more threatening, protection of indi-
vidual rights to due process were more pressing.
As late as March 2020, mass quarantines were still
viewed as too blunt an instrument that would bring
too many people who do not pose a risk to the public
into its ambit. Even under a declared public health
emergency, it was hard to envision the courts uphold-
ing a mass quarantine (Gostin 2020).
Yet it also became clear that presymptomatic or
asymptomatic transmission might be surprisingly
high. In addition to evidence that suggests that some
individuals never experience any symptoms, evidence
suggests that up to half of those who test positive are
presymptomatic (Kimball 2020).
By April 17, 2020, all but nine states had ordered
the closure of non-essential businesses. All but eight
had issued stay at home orders. And all but six had
banned mass gatherings (https://www.stateside.com/
blog/2020-state-and-local-government-responses-
covid-19). As of April 7, 2020, some 300 million
Americans—95 percent of the population—were under
some form of lockdown (https://www.businessinsider.
com/us-map-stay-at-home-orders-lockdowns-2020-3).
In this context in which the threat of both public
health and economic catastrophe is of a scale without
historical precedent, traditional constitutional safe-
guards for these large-scale interventions appear
impractical. But also remarkable is that, sweeping
though they are, because nearly nation-wide social
distancing measures focus not on individuals or
groups, but populations as a whole, they have a note-
worthy equality. In response to COVID-19, cities and
states around the country have closed all schools, res-
taurants, bars, and movie theaters. No one can go to
church, out to a bar, or congregate at a sporting
events. Because key federal officials and both demo-
cratic and republican governors across the nation
have made persuasive scientific arguments, the major-
ity of Americans have remained supportive.
According to polling data released by the Pew
Research Center on April 16, 2020, 65 percent of
those interviewed expressed concern that opening the
economy too quickly would allow the virus to con-
tinue spreading. This position was also held by a
majority of Republicans (Russonello 2020).
As a result, large-scale stay at home orders applic-
able across large geographic areas remain untested in
the courts, though that is likely to change. It is con-
nected to political efforts in the streets.
FreedomWorks, Tea Party Patriots, and other groups
hostile to government intervention—some with poten-
tial ties to President Trump’s team—are organizing
protests in the name of rights. Strikingly, and reveal-
ing of a deep divide, 65 percent of those who identi-
fied themselves as “very conservative” were concerned
that efforts to reopen the economy were moving too
slowly. The Facebook page of a conservative group
that claimed two million “likes,” posted a statement
that read, “heavy handed government orders that
interfere with our most basic liberties are certain to
do more harm than good” (Russonello 2020).
Although relatively small, in some instances, and
seemingly the outcome of “astroturfing” initiatives
organized by Washington conservatives rather than
organic, local social movements (Vogel 2020) such
opposition was amplified by the White House. The
New York Times, in a front page story headlined,
“Trump Gives Right Wing Protestors a Megaphone,”

focused on the President’s efforts to press for an end
to what he viewed as both unacceptable and unneces-
sary limitations imposed in the name of public health.
In a tweet on April 17th, even as his health officials
urged the nation to lift restrictions in a slow, meas-
ured fashion, President Trump called upon states to
“LIBERATE” their citizens from guidelines that
entailed social restrictions on the economy.
Thousands of Michigan protestors chanted “lock her
up” in reference to Democratic Governor Gretchen
Whitmer. Liberate Minnesota, a St. Paul-based group,
demanded the end of what they called Democratic
Governor Tim Walz’s “Lockdown!” by protesting at
his home. Republic governors, too, felt the heat of
small but vocal public protests. In Columbus, Ohio,
protestors took to the state house. Tightly packed
together, they pressed against the doors of the state
capital to challenge Republican Governor Mike
DeWine’s measured, systematic steps that culminated
in closing all non-essential businesses and a stay at
home order. Back in Colorado, hundreds of protes-
tors, only some in masks, rallied at the state capital.
“End the virus, not the economy” and “Fear is the
real virus” was the theme in placards and chants.
Underscoring the divide, healthcare workers wearing
face masks and scrubs protested. In contrast to the
evening cheers that healthcare workers receive in New
York City, in Colorado protests honked horns
and hurled insults at those on the front lines of
the response (Protest in Washington, DC 2020). The
President empathized with demonstrators across the
nation and characterized social distancing measures as
“too tough” (Shear and Mervosh 2020).
The New York Times has reported lawyers with
connections to socially conservative groups or causes
have filed lawsuits aimed at governors. Some are nar-
rowly focused and aim to lift bans on church services.
Others target democratic governors. In Michigan,
Governor Whitmer’s order banning vacation home
travel and gatherings that extend beyond household
members has been challenged in a lawsuit. Wisconsin
Republicans have sued to block governor’s orders to
extend social distancing orders. Attorney General
William Barr has suggested the Justice Department
may support such legal challenges (Vogel 2020).
SOCIAL DISTANCING AS RIGHT
Despite the population-wide nature of the public
measures adopted, the patterns of disease and death
have reflected longstanding social inequalities. Blacks
and Hispanics are overrepresented among those who
THE AMERICAN JOURNAL OF BIOETHICS 59
become ill and die, dying at twice the rates of whites
and Asians in New York City (https://www1.nyc.gov/
assets/doh/downloads/pdf/imm/covid-19-deaths-race-
ethnicity-04082020-1.pdf). In Chicago, where less than
one third of the population is African American, 72.2
percent of those who had died were Black. In
Louisiana, where Blacks represent less than one third
of the population, 70 percent of the pandemic-related
diseases were among African Americans (Eligon
2020). Working class white Americans in industrial
and, particularly, rural areas may be at similar risk.
Recent data underscore that while infections and
deaths are not yet as high, the rate of growth in non-
metro areas (both those adjacent to metro areas and
those that are not) is alarmingly high. The rate of
nearly doubling nearly every two days far exceeds the
rate of growth in metro areas, where it is doubling
every four days (Goetz et al. 2020).
So, while social distancing, in theory and practice,
operates equally in that it applies to the entire popula-
tion rather than subgroups, it also operates in a con-
text characterized by profound inequalities and also
ways that are profoundly unequal. Moreover, many
people sheltering in place are vulnerable or historically
disadvantaged, including the elderly, those with
chronic conditions, the uninsured, undocumented
immigrants, and communities of color. In other
words, stay at home orders may apply to all, but the
burdens of those orders are far from fairly distributed.
There are other compound inequities playing out.
Perhaps the highest risk venue for SARS-CoV-2 trans-
mission are congregate settings like nursing homes,
group homes for persons with mental disabilities, jails,
prisons, and homeless shelters. We have seen infection
sweep through these settings taking many vulner-
able lives.
Much of the recent debate among bioethics has
focused on questions of fair allocation of ventilators
and treatment (Troug et al. 2020). But the more fun-
damental public health issue has been largely
neglected. Consider, for example, the plight of home-
less people. They literally have nowhere to shelter, to
protect themselves. On the streets, they are met by
police telling them to shelter in place. There are few
passersby for whom to ask for help. So, as a result
they resort to shelters, which are now overcrowded at
historic high occupancy, beds inches or feet apart, a
“virus time bomb.” As one homeless man told the
New York Times, “If this is a worldwide pandemic, we
should have a fair chance to protect ourselves. We
don’t really have that chance” (Stewart et al., 2020).
60 A. FAIRCHILD ET AL.
Remarkably, reflecting the extent to which conser-
vatives support of social distancing measures, when
the American Enterprise Institute released a roadmap
for reopening America on March 28, it argued that
“measures will need to be in place in each state until
transmission has measurably slowed down and health
infrastructure can be scale dup to safely manage the
outbreak and care for the sick.” Although the aim was
to create a framework for avoiding a return to sweep-
ing measures, it stressed that, moving forward,
“massively scale[d] contact tracing and isolation and
quarantine” was a must. And it suggested that those
who would be called on to make sacrifices had rights,
not to resist, but to expect “comfortable, free facili-
ties … for cases and their contacts who prefer local
isolation, quarantine, and treatment away from
home.” Although, they argued, individuals should not
be forced into isolation or quarantine away from
home, the framing underscores how far the pandemic
had shifted thinking in a think tank historically
opposed to government intervention (Gottlieb, et all;
American Enterprise Institute).
The broad consensus supporting the centrality of
social distancing as a strategy for interrupting viral
spread was reflected in the fact that when many
defenders of individual rights, such as the American
Civil Liberties Union, addressed the practice it was
not as a matter of intrusion upon liberty. Rather, it
was the failure to guarantee a right to the protection
offered by social distancing that was a matter of deep
concern (Press Release https://www.aclu.org/press-
releases/aclu-demands-release-prisons-and-jails-com-
munities-vulnerable-covid-19). Hence the calls for the
release of non-dangerous prisoners confined to set-
tings that could, by definition, not offer safe spacing.
CONCLUSION
In a context characterized both by uncertainty and
seemingly high levels of presymptomatic transmission,
the analysis provided by Margaret Battin and col-
leagues takes on particular significance (Battin et al.
2009). The potential for individuals to be simultan-
eously victims and vectors is amplified.
Nonetheless, the burden of this dual status falls
more heavily on some groups. Health disparities are
not simply a matter of lack of access to appropriate
clinical services, but the profound impact of long-
standing patterns of social and economic inequalities.
Those inequalities preexisted this epidemic.
The consequences of getting social distancing right
moving forward could not be higher from the
perspective of both economic and physical health.
Economists predict an 8 percent decline in GDP if
spread of the virus is contained but a 13 percent
decline if left unchecked (McKinsey and Company
2020). And in a context in which effective social dis-
tancing measures have left herd immunity low, mod-
els are predicting a relatively swift resurgence of
outbreaks if social distancing measures are lifted in
anything but a carefully staged fashion (Stanford
University 2020). Indeed, the Director of the CDC,
Dr. Robert Redfield, has warned of a second deadly
wave in the fall, when COVID-19 and seasonal influ-
enza intersect (Sun 2020).
Not only lawsuits and astroturfing but also the
potential spread of the virus to areas thus far not
heavily impacted (Elving 2020) may transform the
nature of the political debate when it comes to fram-
ing social distancing as an intrusive measure to be
resisted, or as a right to be extended and defended. In
either case, however, rights are squarely at the center
of the evolving social distancing debate.
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