Justin Bernstein, Anne Barnhill and Travis Rieder argue that pandemic policymaking requires science, ethics and politics
In April of 2021, as we write this in the United States, many Americans are hopeful about the coming months. The Covid-19 vaccine rollout is accelerating at the same time that warm weather is bringing the possibility of safer outdoor activities, and some cities and states are loosening restrictions on gatherings. But there is also cause for concern. After recovering from a major winter peak in Covid-19 cases, a new increase in cases has begun, leading the U.S. Director of the Centers for Disease Control and Prevention to warn of “impending doom” if Americans do not continue to exercise care.
The first year of the pandemic has not gone well in the United States. More than half a million people died from the disease. Unemployment climbed to nearly 15% and is still high. The infectious disease epidemic collided with pre-existing public health problems, leading to an increase in depression, anxiety, and drug overdose deaths. Children lost months or even a year of in-person school, while parents tried to juggle work and child care. And these are just some of the impacts we know about. We will almost certainly continue to learn of damage done in the years to come.
In short, the disease COVID-19 has taken a terrible toll, in terms of illness and death, and the policy responses of local, state and federal governments in the United States have not minimised this health toll – far from it. At the same time, some policy responses to the pandemic have also taken a terrible toll. While some COVID-19 policies are win-wins (for example, mask mandates save lives and enable economic activity while imposing very little cost), other policies involve hard trade-offs. How should we think about these trade-offs?
Throughout the pandemic, some government officials (for example, governors, and now President Biden) have said that their COVID policies will be guided by “science, not politics.” The thought behind “science, not politics” might be that if we ease up on business closures and other policies too soon, this will cause unnecessary COVID-19 deaths, and so it’s obvious that we should wait until the scientists (e.g. epidemiologists) tell us it’s safe to re-open.
Although this sort of claim was welcomed by many (including many in our own circles - academics and policy experts), it mischaracterises how policy decisions should be made. The model of deferring to epidemiologists and infectious disease experts is problematic in three ways – it construes the relevant expertise too narrowly, and is problematic for ethical and political philosophy reasons.
First, we would note (as others have) that pandemic policy has effects that go beyond severe illness and death from COVID-19. The costs of lockdown include higher rates of other public health problems (e.g. depression, anxiety, and overdose deaths), businesses going under, and people losing their jobs. Policies such as lockdown measures have their own costs, and these have to be acknowledged and considered. One worry about the “science” in “science, not politics,” then, is that it has been thought of much too narrowly. In addition to epidemiologists and infectious disease researchers, we also need experts from fields like psychology, social work, and economics. “Science” is clearly important to COVID policy, but not in only one direction. Science will not only help us to understand how to control the virus; it can also explain the threat from our mitigation measures.
Even expanding our notion of science, however, is not enough. As ethicists, we have argued that the ‘science not politics’ frame misrepresents the choice that policymakers face. This is because different policies have different outcomes, and we must make value judgements about these different outcomes. So, how should we value the various costs of lockdowns against the increased COVID-related illness and death from lifting lockdown? This is not a scientific question. It is a question of ethics, and it requires ethical judgement. Obviously, scientific expertise is indispensable in knowing the costs of different courses of action. But how we value these different outcomes - e.g., lost opportunities to worship as compared to COVID-related death - cannot be determined by science alone. As we said last spring, policymakers should follow the ethics, not just the science (“When to Reopen the Nation Is an Ethics Question—Not Only a Scientific One.”). Other ethicists, such as Peter Singer and Michael Plant, and Nick Evans in this publication, have also noted the costs of COVID-19 policies - in effect, agreeing that when and how to reopen is a matter of ethics, not just science.
Last spring, we and some colleagues created an ethics framework for assessing COVID-19 policies. We suggested that several distinct values are at stake with COVID-19 policies, and should be balanced when making policy decisions. Drawing on popular debates about reopening, we identified three such values that were often invoked: well-being, liberty, and justice.
Well-being - what we defined as necessary conditions for a decent life - requires not only physical health but also mental health, economic opportunities, social connection and spiritual well-being. Thus, when we’re evaluating the effects of various COVID policies, we need to consider not just how policies would ‘flatten the curve’ or prevent illness and deaths, but also the broader health effects, economic impacts, and social consequences of those policies.
By ‘liberty’ we focused especially on freedom of movement, freedom of association, and religious liberties. Various policy measures infringe on these liberties to varying degrees, and so they call for justification.
Finally, we use ‘justice’ to refer to the fairness - or lack thereof - of the distribution of the burdens and benefits of a policy or set of policies. Various policy measures would surely have winners and losers; unshuttering non-essential businesses would certainly appear to be far worse for people at higher risk of severe COVID-19, but it may also prove to be hugely beneficial to workers who had been fired due to the shuttering of non-essential businesses. Keeping schools closed caused children to miss out on educational, social and other opportunities, even though children face less direct risk than other age-groups; arguably, school closures amount to children suffering for the sake of protecting older, more vulnerable people. In the United States, there have been higher rates of COVID cases, hospitalisations and deaths among people who are Black, Latino, American Indian or Alaska Native as compared to white people. At the same time, we might worry that COVID policies also exacerbate racial injustice, given that some racial and ethnic groups have been more likely to lose their jobs.
The basic idea is that what we ought to do, when it comes to COVID-19 policies like lockdowns and business closures, will involve balancing these competing values. But this seems pretty daunting. How should we weight, say, individual liberty against the importance of justice? After all, many of our broader political disputes focus on the relative importance of these distinct values. This problem remains even if we focus on one of the three values. For instance, even among those who agree that justice has great importance, there will be further disagreements about the ethical significance of injustices that have to do with age compared to those that have to do with race, ethnicity, gender, or class. Put simply, people disagree about the ethical values we invoke.
Now, one might think that such disagreement just demonstrates the difficulty of arriving at the ethically correct policy. The (admittedly) challenging task for government, then, is to balance competing values and to arrive at the ethically correct answer, and to identify policy measures that achieve this balance. Given how difficult it is to identify the ethically correct policy, presumably governments need to identify and use decision-making processes that are especially likely to get the right results. For example, some theorists like David Estlund argue that (certain) forms of democratic decision-making are most likely to get the ethically best results. But others, such as Jason Brennan, have raised doubts that democratic governance - generally but especially in the United States - reliably produces good decisions. Alternatively, one might think that deferring to (some category of) experts will be our best chance of getting things ethically right. However, as noted, there are many ethical values at stake that each involve different sorts of technical questions. Epidemiologists - like economists, psychologists, social workers, and others - are not experts about all of the relevant scientific questions, let alone the ethical question about how to balance these values. And there’s a lively debate among philosophers about whether there even are any identifiable ethical experts.
The view we’ve been discussing - that what government ought to do is solely a matter of arriving at the ethically right answer, or using the decision-making process that is most likely to arrive at the ethically right answer - is sometimes referred to “instrumentalism.” Despite the just-mentioned challenges in figuring out the ethically correct answer, instrumentalism might seem like a good (or even obviously correct) view about how government should work. Though we are not social scientists (and thus are only speculating), it seems to us that instrumentalism has been widely (if implicitly) embraced during this pandemic, perhaps especially among those who favour aggressive pandemic control measures. In fact, we hear some implicit instrumentalism in the mantra of “science not politics”: there is a substantively right course of action (i.e. aggressive pandemic control), governments should pursue this substantively right course of action (and not bow to political pressure), public health science will tell us how best to control the pandemic, and thus good pandemic policymaking is a matter of heeding the recommendations of public health experts.
But instrumentalism is not the only view about how governments should make decisions. And in fact, many argue that instrumentalism is an inadequate response to moral disagreements about policy — precisely because instrumentalism fails to appreciate the moral significance of such disagreement. According to this critique, disagreements about how to weight COVID-19 deaths against respect for religious liberty or economic harm isn’t just an ethical puzzle with a right answer that government needs to figure out. Instead, it raises the following question: what is the fair and respectful way to determine a society’s course of action when its citizens disagree about what’s best?
This question brings us squarely into the domain of political philosophy, and to differing views about the ethics of government decision-making in the face of moral disagreement – that is, different views of what’s called political legitimacy. According to these views, given that we disagree about policies, and given that we all have to live under the decisions that governments make, the legitimacy of policies is not simply a matter of getting the substantively right (i.e. ethically correct) answer, or using the decision-procedures that make us most likely to get the substantively right answer. Legitimacy requires more than that; it requires respect for moral disagreement. And respect for moral disagreement, in turn, requires certain forms of decision-making or justification of policies.
If we take moral disagreement seriously, then the decision when and how to reopen society is not just a matter of science. But nor is it just a matter of scientifically informed ethics. It’s also a matter of politics. Not politics in the narrow sense of politicians pursing their political self-interest, but in the broad, elevated sense of politics as the appropriate way to resolve disagreements about what we, as a society should do.
So, given that we disagree about COVID-19 policies, what does that mean for decision-making by government actors?
On some views of political legitimacy, like those endorsed by Jeremy Waldron or Thomas Christiano, respectfully and fairly resolving political disagreements requires giving each person a say. Most obviously, this could involve some sort of direct democracy: we could just take a vote about when to implement and when to lift policies like stay-at-home orders and business closures. Alternatively, there may be other (and better) ways of giving people a say, without giving them a direct vote about policies. For example, we might be worried that members of the public are not typically well-informed about specific policies, or might for other reasons fail to make good decisions, and thus it is better to have legislatures (who are elected by the people) make decisions. Or, perhaps as Alexander Guerrero and Helene Landemore suggest, we should create panels of randomly selected, demographically representative citizens who will be informed about policy areas and given the power to make policy decisions. Other theorists, like Amy Gutmann and Dennis Thompson, think that it’s not enough to merely give each person a say; legitimacy, rather, requires discussion - really, joint deliberation - before decision-making.
A different approach to legitimacy, one explored influentially by John Rawls and Gerald Gaus, among others, is found in the “public reason” or “public justification” tradition. According to this view, political constitutions, or even particular political decisions, are legitimate if and only if each (suitably idealised) member of the political community could or would accept these decisions. These theories take moral pluralism that characterises our society as their starting point. Some of us are committed utilitarians, but others are Catholics, or Kantians. According to public reason theorists, we should make policy on the basis of reasons that are acceptable to people with a wide variety of moral and philosophical commitments. On one version of this view (there are many), policies are legitimate if and only If they can be justified on the basis of reasons that all reasonable citizens could accept.
So political philosophy can help us understand how the government should act in the face of deep disagreement. Returning to the pandemic, then, people certainly disagree about which policies should be enacted. Indeed, we have seen such disagreement play out in sometimes dramatic ways, with armed protesters storming the statehouse in Michigan, and others burning masks in protest. At the same time, others passionately support these policies and are angry that governments aren’t doing more to reduce COVID-related deaths. So, what might different view of legitimacy suggest about a path forward?
If we think that legitimacy requires giving citizens a say, then processes for affording citizens a say should be incorporated into the COVID-19 policy-making process. The question, then, is what kinds of decision-making processes would afford citizens adequate voice during a crisis like a pandemic, while also allowing policy to be informed by science? Should we have referendums about COVID-19 policies, for example a referendum about when to reopen businesses? Should we have panels of demographically representative citizens make policy decisions? And if so, which experts should advise them?
On a public reason view, legitimacy could require something yet different. There are different theories about what sorts of reasons are “public” - that is, are reasons all citizens could accept - and where one lands in these debates will have significant implications for the legitimacy of COVID-19 policies. Some public reason views claim that policies must be acceptable to each person (or an idealised, fully informed and rational version of them), given their preferences. This understanding of public reasons will imply that many COVID-19 policies are illegitimate. Consider, for instance, a young, relatively healthy person whose job (for example, as a bartender) is imperilled by policies like stay-at-home orders, business closures, and limits on in-person dining. While such a person might find these policies acceptable, they also might not. And if any such person would reject the policy, it counts as illegitimate on this understanding of public reasons, which requires that policies must be acceptable to each member of the public.
Other public reasons views, by contrast, would be more likely to support such policies. For example, if public reasons are understood as reasons that all rational and reasonable people could accept in defence of a policy, then it seems much more likely that policies like business closures and prohibiting in-person dining will come out as legitimate. Even though many would disagree with such policies, they are based on reasons that all rational people could accept, even if many would not, in fact, endorse the relevant policies.
These are just some examples of the implications of different views of political legitimacy for pandemic policies and decision-making processes. [They are well worth more fully exploring.]
To return to the mantra of “science not politics,” this phrase may misrepresent the problem of COVID-19 policymaking in three distinct ways. First, the “science” in question must be broadly construed to include multiple forms of expertise and experts, including epidemiologists but also mental health experts, social workers, economists, and more. Second, COVID-19 policy decisions involve making extremely difficult ethical judgements, which cannot be supplied by science or technical experts alone. Third, “science not politics” misrepresents the problem in another sense, because COVID-19 policy decisions are, well, political decisions: these are decisions about what we, as a society will do, and decisions about which we disagree. The lesson of much political philosophy is that we have to take this disagreement seriously. Pointing to science doesn’t take this disagreement seriously. But nor does pointing to one’s own favoured ethical theory or acting on one’s own ethical conclusions about how competing values should be balanced in COVID-19 policymaking. Grappling with this disagreement about COVID-19 policies requires considering what makes political decision-making legitimate in the first place.
The rallying cry of “science not politics” presumably treats “politics” as referring to narrow partisan interests, or ‘playing politics’ when doing so is inappropriate. To be sure, now is a time when our leaders should rise above short-term gains, self-interest, or scoring points with a particular constituency. But in another sense of “politics,” the debate about when and how to reopen is a deeply political question. Politics, in this sense, concerns the appropriate way to resolve disagreements about what we, as a society should do—disagreements about policies that will have a significant impact on all of us, may exact terrible costs, and may be loathed and rejected by some. If we understand “politics” in this second, larger sense, then the discussion about COVID policies is appropriately a political matter, rather than just a question about how to figure out the scientifically or ethically correct answer.
Justin Bernstein is an Assistant Professor of Philosophy at Florida Atlantic University. His work focuses on issues in political philosophy, bioethics, and the intersection of the two—especially the ethics of infectious disease. You can find some of his work in The Stanford Encyclopedia of Philosophy, The Kennedy Institute of Ethics Journal, Journal of Medical Ethics, Journal of Social Philosophy, and The New York Times.
Anne Barnhill is Core Faculty at the Johns Hopkins Berman Institute of Bioethics, and author (with Matteo Bonotti) of the forthcoming Healthy Eating Policy and Political Philosophy: A Public Reason Approach. She is a philosopher and bioethicist who works on the ethics of public health and food ethics, among other topics.
Travis Rieder is Director of the Masters of Bioethics degree program at the Johns Hopkins Berman Institute of Bioethics. He is also the author of In Pain, published in 2019 by HarperCollins.