Covid controls limit our freedom, but free choices are rarely free

Attempts to protect humankind against a vicious deadly virus are consistently being undermined world-wide by the refusal of some people to wear masks and be vaccinated.

On the outer lunatic fringe are those who deny the very existence of the coronavirus. Hospitals allegedly receive money for reporting heart attack and cancer deaths as caused by Covid-19. The argument that the virus “has not been isolated” is often raised by people without any understanding of the “isolation” of a virus. 

One day Bill Gates will allegedly push a button to make all those vaccinated march forward, like Frankenstein’s monster, arms raised in front of them, with dark dead eyes, to follow his every order. (What I can do for Bill I do not know, but I may happily cooperate, without a vaccine or microchip, at a modest fee which I suspect he can afford.)

One Canadian lawyer attacked Covid restrictions by suing not only Gates, but the Pope, the World Health Organisation and numerous other alleged co-conspirators. He was humiliated in court, but enjoyed the attention. Understandably, he litigated with donor money.

The super-religious believe that only God decides on life and death. Masks and vaccines interfere with His sovereignty. Some are bold-faced. Somewhat embarrassed in sane company, others hide behind scepticism about the hasty approval of vaccines. Lunacy and faith overlap in, for example, words like those of Chief Justice Mogoeng Mogoeng’s passionate prayer for the destruction by fire of “the vaccine that comes from the mouth of the beast”, with the mark 666 on it.

Unqualified as I am to diagnose the psychological and sociological causes of the above-mentioned attitudes, I suspect a selfish pathological desire to establish an own identity, attract attention, belong to a group, find purpose in an otherwise seemingly meaningless existence, or all of the above and more.

Then there are the free-choicers. They rely on their “rights”, mostly from a right-wing perspective. In South Africa they include those who realised that people had rights only when apartheid was replaced by majority rule. They portray Covid restrictions as a Stalinist plot by the ANC government which wants total power, is planning a military dictatorship, or is as clueless as they expect African rulers to be. It is also argued that living dangerously — by smoking, eating fatty meat, driving fast and not wearing a mask — makes life worth living. 

In the United States even governors and mayors have been opposing and undermining the federal government’s restrictions, policies and advice. According to them, the essence of their constitution  is the right to make personal choices about their bodies. Yet, many of them will never recognise a woman’s right to protect her own bodily and psychological integrity by choosing an abortion. Even pregnancies caused by rape or incest are God’s will, which the law must respect. And religious leaders encourage their followers to gather to worship, or at least urgently deposit their financial offerings electronically. 

 Covid restrictions do interfere with the exercise of several constitutionally recognised rights, such as freedom of movement, association and assembly for religious or other purposes, as well as choices about one’s own body. Rights sometimes compete, though. Therefore they must be weighed, balanced and limited. Our constitution  expressly provides for the limitation of rights by law, provided that the limitation is reasonable and justifiable in an open, democratic society.

The absence of a limitation clause in their constitution  allows for the American pro-gun rally to oppose any gun control on the basis that the right to bear arms includes the right to own unlimited Smith and Wesson six shooter revolvers, semi-automatic Glock pistols and assault rifles. Yet, in practice rights are limited, for example by traffic laws. Just see how a tough armed American police officer responds when you drive on the wrong side of the highway at 200 kilometres an hour … and tell him that you exercise your constitutionally protected freedom of movement.

Whereas dying in your own bedroom as a result of smoking, alcohol and fatty meat may not generally harm society, your driving clearly affects the safety of others. Much as you may enjoy your personal freedom to drive your very own Ferrari at its top speed, the law has to protect others against your selfish self-indulgence.

Debates about individual autonomy, free choice and the law are not new. A few decades back some argued that you had the right to choose whether to wear a safety belt in your car or a crash helmet while riding your bike. After all, taking exciting risks is your own business. But, for the police to collect your body parts on a busy highway or scoop up pieces of your brain from a sticky dark blood puddle on the sidewalk surely affects the dignity of the police officers, those stuck on the highway and children walking home from school. Furthermore, insurance premiums and taxes may increase as a result of accidents and to provide for more police officers, as well as their trauma counselling.

Free choices are rarely free. We live in a society ruled by law. Our safe existence depends on each other and on the balancing of our rights by those who make and apply law. Restrictions that disproportionately limit our rights can be set aside by courts. One does not kill a fly with a sledge hammer.

Legally requiring the wearing of masks to slow down the spread of Covid-19 looks eminently reasonable and justifiable. If the concerns of some who complain that they cannot breathe freely or that their perceived beauty is hidden could somehow be linked to a constitutional right, the weighing of that right against the rights of others to life, dignity and security seems easy.

Vaccinations have a more direct effect on one’s bodily integrity. Persuasive encouragement of those who refuse is clearly preferable to criminal sanctions. Regarding employers, airlines, landlords and the organisers of public events requiring proof of vaccination, the practicalities of each specific situation have to be taken into account in the process of weighing, balancing and protecting rights.

Free expression is crucially important. Without the exchange of ideas, little or no progress would have been made in the war against Covid. But, when a popular leader or talk show host openly and fiercely advocates resistance to masks and vaccination to the extent that lives are endangered, limitation of the right to free expression could well be reasonably justifiable.

We must keep our minds open and leave space for dissident opinions. Science has over centuries developed by discovering its own mistakes. Without free speech the belief that the Earth is flat, according to science at the time, would have prevailed for much longer. 

Science is only right until it proves itself wrong, say the scientists. But all of us are not scientists. Until the majority scientific opinion is that masks and vaccines are useless or dangerous, that the coronavirus has never existed or that the Earth is indeed flat, I propose that especially leaders and lawmakers, but also the rest of us, act according to the wisdom of the present moment.

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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