Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

The Current COVID-19 Surge, Eugenics, and Health-Based Discrimination

By Jacqueline Fox

COVID has shown us that the burdens and inequities that characterize everyday life for many Americans are not merely vestiges of an older time, but an honest reflection of our unwillingness to treat everyone with dignity and respect.

We have undergone an ethical stress test in the last 18 months. While many people have exhibited heroic commitments to their fellow citizens, much of our governmental response is indefensible in a society that professes to care for all of its members. This implies we are not such a society.

Rather, we are a society riddled with healthism — discrimination based on health status — and eugenics — a pseudo-science that arbitrarily elevates some human traits over others, much as we do with breeding dogs and horses.

As a result, although we are armed with the power to prevent much harm, we lack the will or inclination to use that power for our most vulnerable. Instead, we place different values on people’s lives using arbitrary definitions of quality, and treat people differently based on their health status. Examples include placing a lower value on a life because a person is older, disabled, or overweight.

As of July 2021, children under the age of 12 cannot yet be vaccinated. People with autoimmune conditions or health issues that require suppressing the immune system to treat them often are not responding well to vaccines. As a result, a significant percentage of the population cannot be successfully vaccinated, even if they very much want to be.

At the same time, COVID variants that are highly contagious are becoming dominant, and such cases are rapidly increasing among the unvaccinated. Further, it seems likely that vaccination is not enough to prevent all onward transmission of SARS-CoV-2 to unvaccinated people. Those who spend time with the vulnerable — such as their children, or those who are sick — are consequently also at a significant disadvantage, as they must ensure they do not become a vector themselves.

Despite these challenges, we are moving briskly towards not masking, allowing large crowds to gather indoors, and planning to open schools in the fall with minimal protective measures. The reduction of COVID mitigation strategies occurs against the backdrop of an aggressive political tone of unconcern espoused by many Republican elected and appointed officials, and a Democratic focus on getting people vaccinated that is often reduced to the singular message that if you are vaccinated, the world is open, and if you are not, it is closed. Reducing the complexities of this pandemic to a binary of people who choose to vaccinate and those who do not, combined with some political figures dismissing all risks of COVID, both silences and isolates those who cannot get vaccine protection.

For example, it is commonplace to see a store with a sign on the door asking those who are not fully vaccinated to wear a mask. But can a vaccinated parent with unvaccinated children safely enter that store? Can a person with an autoimmune disease who is wearing a mask safely enter that store? We don’t know. More problematic, we aren’t acknowledging that these questions matter. We are pretending the questions don’t exist.

Consider the choices faced by a vulnerable graduate student whose university reopens at full capacity this fall with no option for remote classroom instruction, no requirement for masks, and no vaccine mandates. What should that student do? Whatever they decide, they now carry burdens that other students do not, notwithstanding the additional burdens they already carried before the pandemic that made them more vulnerable to COVID in the first place. Worse still, they must carry these burdens alone, while recognizing that their school does not care about them enough to prioritize their safety.

We have entered a new stage of erasure of children, of the disabled, and of the vulnerable. Healthism and its sibling, eugenics, have been unapologetically espoused during the COVID pandemic by our country’s leadership.

The quick dismissal of the aged and other vulnerable people became a commonplace trope of the Trump administration and was often repeated and amplified by people who did not want to take even minimal precautions against becoming sick or sickening others. The lack of community cohesiveness has been disheartening for people in health policy and health care. I thought that the last 16 months or so had taught me about the limits of our social norms, about how selfish and shortsighted many people are. And yet I find myself in the painful throes of being educated anew as to our collective apathy, indifference, and outright hostility towards our fellow humans.

The earlier dismissals of elderly and physically vulnerable people were couched as necessary tradeoffs for the protection of the community. Too many would suffer too much, we were told, if we ‘shut down’ to protect some, and so we must reopen. There was an implicit balancing in much of the rhetoric, which at least minimally acknowledged that the lives being traded had some weight, even if it wasn’t much. Now, we act as though people who will bear the risk of COVID are not part of the balancing at all. They are no longer part of the equation.

COVID is probably here to stay, in some form. The slow global roll out of vaccines and their limited uptake in the United States are not enough to prevent mutations from developing in multiple places. It is likely there will always be risks of community spread. By 2022, children will likely be eligible for vaccination. Perhaps we will develop vaccines that function better in the immunocompromised populations that desperately need them. The list of who we burden with risk will become smaller. Some, though, will remain at great risk, making their entry into our crowded world fraught in ways that others will not experience.

I believe we are watching, in real time, the development of a new system of permanently burdening people we do not value. This experience causes me to see more clearly the many inequities we have long endured as somehow normal, even though they could easily have been addressed. Why do we not have adequate ventilation in schools? Why do we allow evictions to occur without an immediate provision of social services to protect those who lose their homes? Why should a diabetic ever go without the best medicine to control their blood glucose levels? Why do we allow drinking water to be polluted? Why is our built environment so hostile to people who do not fit within our narrow norm of ability? Because this is who we are.

COVID enters this long and iniquitous list, causing foreseeable and preventable harm to those who are vulnerable. Our current approach to this virus will make some lives riskier and more complicated, making their choices harder and with far higher consequences than others risk. Our society could do this differently. We could validate concerns, address them transparently, debate trade-offs or compromises, and give voice to the people who are at risk of being harmed. We appear to be choosing not to.

Pursuing protection of the vulnerable, giving voice to their concerns, will always be an important part of being an advocate, and these observations are not meant to justify throwing up one’s hands in surrender. But it is terribly sobering to see how inhumane our society is, to see how little we have learned from our past struggles, and to see us become more healthist, not less, in the face of widespread death, sickness, and suffering.

Jacqueline R. Fox is a professor of law at the University of South Carolina School of Law.

The author would like to thank Daniel Goldberg and Etienne Toussaint for reading and providing feedback on an earlier draft.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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