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Justifiable discrimination? on Cameron et al’s proportionality test
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  1. Sherry Kao
  1. Philosophy Department, Georgetown University, Washington, DC, USA
  1. Correspondence to Dr Sherry Kao, Philosophy, Georgetown University, Washington, DC 20057, USA; yk652{at}georgetown.edu

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With increasing inoculations and emerging coronavirus variants, governments worldwide are challenged to adopt proper liberty-restricting measures to reduce the spread of COVID-19 and minimise grave consequences for liberty and well-being caused by over a year-long pandemic. Cameron et al’s proposal of a selective strategy addresses this pressing issue.1 Following Savulescu and Cameron, they argue for limiting the liberty of the elderly. But, instead of claiming not doing so is an instance of wrongful levelling down equality, they argue this discriminative strategy is morally acceptable.2 I argue against the selective liberty-restrictive measures after proposing a revision of the five-limb proportionality test that plays a pivotal role in supporting their argument.

The following is a reconstruction of Cameron et al’s central argument:

(P1) It is ethically acceptable to promote the best outcome.

(P2) One way to promote the best outcome is to maximise utility at the population level without imposing unreasonable costs on the most vulnerable individuals. (p7)

(P3) All else being equal, adopting selective liberty-restricting measures in the COVID-19 pandemic is the best way to maximise utility at the population level without imposing unreasonable costs on the most vulnerable individuals.

(P4) If it is ethically acceptable to maximise utility at the population level without imposing unreasonable costs on the most vulnerable individuals, then it is ethically acceptable to adopt selective liberty-restricting measures in the COVID-19 pandemic.

(C) Therefore, it is ethically acceptable to adopt selective liberty-restricting measures in the COVID-19 pandemic.

A selective liberty-restricting measure limits the liberty of a group, as opposed to restricting everyone’s freedom. Following Ragonnet et al, Cameron and his colleagues select people over the age of 50 to be the group whose liberty should be restricted.3 To support (P3), they argue that limiting the freedom of people over 50 does not impose unreasonable costs on this group because (A) it is either a net benefit or easy rescue for them and (B) itis proportional.

Consider (A) first. Given that people over 50 are more likely to be hospitalised and die after contracting COVID-19, limiting their contact with others benefits them by avoiding the risk of getting sick. Because wearing masks and restricting their liberty cost them little, but the benefit to others is significant, Cameron et al argue that they must do so as fulfilling the duty of easy rescue (p9). I disagree that it is an easy rescue because the costs for them are high: the mental toll created by long-term limiting contact with family and friends, especially when the isolation might occupy the rest of their lives, can be unbearable. Limiting their liberty might also put them into a catastrophic financial situation if they must work to support their family.

Consider (B). Cameron et al argue that we can permissibly discriminate if doing so is proportional. Limiting one’s liberty is proportional if it satisfies the five-limb test, which says the following:

  1. The goal is significant.

  2. The means is rationally connected to the goal.

  3. The means is necessary.

  4. The means strikes a fair balance between the individual rights and community interests.

  5. Risk of harm does not directly result from social inequality.

They argue that limiting the liberty of people over 50 satisfies this test. First, the goal is to limit the disease burden, which is significant. Second, the means, namely, restricting the liberty of people over 50, rationally connects to the goal.4 Third, the means is necessary. Fourth, the means significantly reduces the use of limited healthcare resources and the mortality rate. Fifth, that those people are at greater risk is unrelated to social inequality (p12–4).

However, I have some doubts about the five-limb test. First, there being a significant goal is too weak to partly justify infringement on individual rights. To correct this, we should write into (1) the priority view, that is, benefiting people more the worse off they are.5 As to (3), limiting the liberty of people over 50 is not necessary. We can limit the disease burden by general lockdown. Finally, adopting general lockdown is more effective and better reduces the risk of emerging new variants. This, then, casts doubts on Cameron et al’s claim on (4). If the community interest in preventing the spread of COVID-19 does not rise to a sufficient level, we can question if adopting the selective strategy still strikes a fair balance between individual rights and community interests.

Based on the above criticisms, I propose the following revision of the test:

  1. The goal is both significant and benefits people more the worse off they are.

  2. The means is rationally connected to the goal.

  3. The means is necessary,

  4. Benefits to the individual whose rights are infringed outweigh harms caused by the infringement.

  5. Risk of harm does not directly result from social inequality

  6. The means would aggravate social inequality as little as possible.

Although this six-limb test better protects the rights of the most vulnerable group, Cameron et al’s argument is still flawed. General lockdown is a better strategy in maximising utility and protecting the rights of the most vulnerable: it faster reduces morbidity, mortality and consumption of healthcare resources, and it decreases the risk of emerging new variants. Allowing new variants to emerge potentially nullifies all the efforts we have made collectively, especially in that it threatens the efficacy of existing diagnostic tests, treatments and vaccines. New variants, thus, further strain the economy and people’s well-being. Perhaps there is another selective liberty-restricting measure that better serves (P2). But, while the world population is not sufficiently vaccinated, the general lockdown remains the best strategy, as long as it most effectively reduces the infection and, hence, minimises the risk of the emergence of new variants of COVID-19.

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Footnotes

  • Contributors The author contributed to the conception, analysis, drafting and revising of the manuscript.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Provenance and peer review Commissioned; internally peer reviewed.

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