COVID-19, masks and the freedom to drive drunk

Does freedom mean the right to refuse to wear a mask during the COVID-19 pandemic?  Many Americans think so. It is President Trump’s most important legacy. Here’s one implication that is too little noticed: If that is what freedom means, then we owe drunk drivers an apology.

The idea is shaping our world. Ignoring urgent expert advice, an Idaho health board recently rescinded its mask mandate, while 100 new cases were reported in one day and the local hospital was running out of beds. (A couple of weeks later, it reversed itself and imposed the mandate.) The board member who led the change explained, “I agree we have a problem with this virus, but at the same time I object to the mandate the board passed because it restricts people’s right of choice and ability to comply or not comply under penalty of law.” Another member said, “I personally do not care whether anybody wears a mask or not. If they want to be dumb enough to walk out there and expose themselves or others to it, they can.” The story was reported in the Daily Beast under the headline, “This really happened.” 

This is a new and unfamiliar conception of freedom. Some people, notably New York Times columnist Paul Krugman, have blamed libertarianism for this stuff, but the standard libertarian story is that people have the right to do what they want as long as they don’t hurt anyone else. Now we are told that they have a right of choice even if they do hurt other people. 

Drunk drivers were once casually tolerated. After Mothers Against Drunk Driving was founded in 1980 by a woman whose 13-year-old daughter was killed by one, attitudes and laws both became harsher. The proportion of fatal crashes involving drunk drivers plunged, from 53 percent in 1982 to 34 percent in 1997. There were over 26,000 drunk driving deaths in 1982, fewer than 11,000 in 2018. I believe universal mask-wearing would have had a comparable effect. An estimated 100,000 or more lives would have been saved.

But, if you’re concerned about masks’ infringement on individual liberty, then why endure DWI (driving while intoxicated) laws? Masks are a lot cheaper than the cabfare home from the tavern, and then there’s the hassle of coming back for your car the next morning. And DWI laws affect you much more intimately, dictating what you can put into your body. Just because your car was repeatedly drifting into oncoming traffic, the cops get to make you take a breathalyzer test. With a machine that covers your face. Just like a mask! 

State governors who have refused to require masks all make arguments that logically would shield drunk drivers as well. (States where masks are least worn are among those with the highest rates of COVID symptoms.) 

Oklahoma Gov. Kevin Stitt says, “This is a personal responsibility.” Then why not rely on personal responsibility to let people decide for themselves how snockered they can be before they get behind the wheel?

Gov. Kristi Noem of South Dakota, where the disease is spreading with record-breaking speed, writes:  “If folks want to wear a mask, they should be free to do so. Similarly, those who don’t want to wear a mask shouldn’t be shamed into wearing one. And government should not mandate it. We need to respect each other’s decisions.” At a Trump rally last month, Noem said that the absence of restrictions made South Dakotans “happy because they are free.” Try that with DWI. If folks want to drive sober, they should be free to do so. We need to respect drunk drivers’ decisions. And so forth.

And, of course, there’s President Trump:  “It’s voluntary. You don’t have to do it. They suggested for a period of time, but this is voluntary. I don’t think I’m going to be doing it.”  It was, of course, Trump who decided to make resistance to masks a political cause. It has cost him. Had he encouraged masking, perhaps the disease would be under control, the economy recovered and Trump himself would have been easily reelected. 

But maybe that’s the price of freedom. If he’s going to take this principled stance, though, he should also be standing up for the drunk drivers.

I hate to have to say it, but I’d better: This is satire. I do not really want to legalize drunk driving. There are always two ways to resolve an inconsistency. If drunk driving should be prohibited – and, yes, of course it should – then walking around indoors mask-less in a pandemic is just as bad. But if you really think that you should be free to infect other people with a disease that has already killed more than 250,000 Americans, then you should stop being so mean to drunk drivers.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict.” Follow him on Twitter @AndrewKoppelman.