Why Medical Freedom is the Prerequisite to All Other Freedoms

The opinion discussed may be found at Borrello et al v. Hochul et al.

“Unless we put medical freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship to restrict the art of healing to one class of Men and deny equal privileges to others; the Constitution of the Republic should make a Special privilege for medical freedoms as well as religious freedom.”

– Founding Father Benjamin Rush

Recently, a trial court in New York, which calls its trial judges “Justices,” struck down Governor Hochul’s attempt to create a rule that would have allowed New York to quarantine virtually anyone on a whim and without any judicial process.  Obviously, this is a tremendous victory for all of us who believe in medical freedom, but Justice Ploetz’s opinion leaves many important questions unanswered.  That’s not a criticism of Justice Ploetz because the case did not require him to address these issues, but the nature of our victory means that we cannot rest in our fight for freedom.

Before COVID, New York law permitted its governors to suspend New York law during an “emergency.” During COVID, New York further amended its law to allow its governors to rule via decree during such emergencies, thereby replacing the suspended laws with regulations.  In response, New York’s Health Commissioner issued Rule 2.13, which created a new quarantine process that rendered moot the rest of New York’s Constitution.

To challenge the Governor’s attempt to become the Emperor of the Empire State, Uniting NYS, a non-profit, and several members of the New York legislature challenged the legality of Rule 2.13, and the Court had to decide whether or not the Legislature’s grant of authority to the Governor was consistent with New York’s Constitution.

Ultimately, Justice Ploetz determined that Rule 2.13 was too radical a departure from the pre-existing quarantine law, thereby requiring him to invalidate the Rule. Specifically, Rule 2.13 eliminated the requirement that a person subject to quarantine must be sick.  In addition, the Rule eliminated both the ability of other medical professionals to release quarantined individuals and the requirement for a hearing before a magistrate while simultaneously empowering the Commissioner to commandeer local law enforcement to enforce his or her orders.  These changes, combined with the Commissioner’s inability to cite any actual evidence of need, led to the Commissioner’s defeat in Borrello. But what does any of this mean for defenders of medical freedom?

First and foremost, all of us should be shocked that this was even an issue. What does it say about our society that New York’s legislature and two of its Governors (Cuomo and Hochul) apparently thought that suspending the laws and authorizing governors to rule by decree was a reasonable response to COVID?  Ironically, New York was invaded and occupied by a foreign power during the American Revolution; it was attacked again on 9/11; it has suffered riots and natural disasters and almost every other calamity imaginable, but New York needed to suspend its laws and rule by decree over COVID?  But cf. Brennan Center for Justice, “Guide to Declarations of Martial Law in the United States.” 

Our complete loss of perspective in response to COVID should shame us all.

Second, we who defend medical freedom should be alarmed at the precarious nature of our victory. Since New York’s Commissioner made no serious effort to defend the Rule, it remains entirely possible that we might have lost, because no one knows how flimsy a factual justification would need to be offered in order to justify such powers. As we saw during COVID, government experts’ claims have a remarkable ability to persuade judges to accept those things as true, even if they’re as ridiculous as claiming that masks with 80-micron holes somehow stop 20-micron infectious particles. Had the Commissioner chosen to present evidence, even if that evidence were ridiculous, might we have lost?  Should our inalienable rights depend upon our government’s propensity and ability to lie or should we be governed by verifiable facts, rather than “expert” opinion?  

Third, this case reminds us that we all need to answer a basic question: our freedoms or our lives?

If you are the sort of person who would rather be protected from COVID – or any other disease – than from tyranny, then you aren’t going to remain free for very long. The world is filled with emergencies, and it’s exceedingly easy to create new ones – by design, by accident, or by false pretense. At some point, all of us must prefer liberty to life or none of us will be free.  If we’re going to allow the government to “quarantine” people without judicial process, then none of us are free – we’re merely on parole until the government decides we’re dangerous.

That is, in a truly wise and enlightened society, we must decide that some means will never be used, regardless of the ends at issue.  If stripping people of their medical freedoms is the only way to save our lives, then we should begin planning our funerals, not our lives after freedom. I know that sounds radical, crazy even, but it reflects two (2) essential truths:  

First, our leaders exaggerate the necessity of trading our liberties for our lives, so we should resist their demands out of prudence alone.  

Second, we must re-affirm our commitment to the principle that liberty is more important than life. 

In the final analysis, we cannot oppose masks, lockdowns, and vaccines merely because they are dangerous and/or ineffective; rather, we must oppose any attempt to limit our medical freedom or we will lose all of our rights.  Who cares about your right to free speech when the government can “medicate” whom it will? What’s the point of granting attorneys or trials to defendants who can be “quarantined” instead?  How can we protect government misdeeds when they can shut down any “dangerous” event?

We are fighting for medical freedom because it is the prerequisite of all other freedoms. 

The preceding does not constitute legal advice.

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Chris Paige is a former Olin Law & Economics Scholar at Yale Law School, and a former academic pollster.

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