The libertarian starting principle
In the excerpts, personal autonomy is presented as one of the core principles libertarians adopt in judging whether governmental behavior is appropriate from a liberty standpoint and whether it is constitutional. Bob Levy, identified as Chairman of the Board of Directors of the Cato Institute, states that the core libertarian principle is the right to live your life as you choose, as long as you don’t inflict harm on others, and that personal autonomy is at issue when it comes to the vaccine, particularly since the subject is the injection of a medical substance into the body. He pairs this with the formulation that your right to punch ends where my nose begins, and frames the controversy as whether a person can refuse injection notwithstanding that the refusal might visit some risks on other people. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Levy calls this a close call, distinguishing it from most libertarian questions, which he says fall comfortably on one side of the line or the other. He notes that even those who resist government intervention, as libertarians typically do, will endorse rules that bar persons from violating the rights of others. He identifies three classes of persons he says are harmed beyond those who refuse the vaccine: those who cannot be vaccinated for medical reasons and could contract COVID from an unvaccinated person; those who cannot obtain medical treatment for other ailments because unvaccinated COVID patients have strained hospital capacity, equipment and staff; and people who have been or may be afflicted by the Delta variant, which he says probably would not have mutated if a larger percentage of the population had been vaccinated. He adds that the class of unvaccinated persons includes all kids under the age of 12. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Autonomy against regulatory judgment
The 2017 episode with Michael Munger supplies the other treatment. A caller identified as Dave raises the FDA’s move to treat vaping as a tobacco product as evidence that people do not change when they move between sectors, and Munger calls the vaping example a great one. Munger says the people at the FDA may not be craven, selfish people lying about vaping and may actually think this is the right policy, but that the problem is that it disenfranchises individuals in terms of their personal autonomy and substitutes the judgment of someone who is far away, who has expertise but maybe not many contacts with actual medical problems. He adds that vaping is probably an improvement in many ways over smoking cigarettes, and that the opposition to vaping is that it is still a tobacco product. Leviathan in Chains: Michael Munger on Public Choice Economics (2017)
In this episode autonomy is not framed as a right to be weighed against third-party harm; it is framed as what is displaced when an agency imposes its view of the good. Munger’s broader claim is that people are not narrowly selfish but do want to impose their view of the good on everyone else, and that the same motives that operate in the private sector do not get left at the door when government becomes the employer. Bob Zadek’s framing of that core, in his exchange with the caller, is that an individual motivated in the private sector by more money, more power or greater importance does not lose that motive upon joining government. Leviathan in Chains: Michael Munger on Public Choice Economics (2017)
Autonomy and strict scrutiny
Levy describes strict scrutiny as the principle in constitutional law describing the hoops government has to jump through in order to justify regulations of fundamental rights, and states that personal autonomy is a fundamental right. He lists aspects of the test: government has to show a compelling need for the regulation, in this case the mandate; it has to show the regulation is not going to cause any harm and will be effective in accomplishing its objective; and it has to show there is no better way to do it without violating personal autonomy. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Before reaching that test, Levy says, there is a controversy in law about the extent to which it is appropriate to regulate activities that have not created any injury whatsoever — the issue of whether you can address past injury versus the possibility of future injury. He contrasts punishing aggressive acts that have already caused damage, which government does all the time, with compelling conduct that might minimize or reduce harm that has not yet occurred, an area of the law he calls endangerment, where he says it is difficult to apply a rights theory. His examples are speed limits, which he says libertarians for the most part do not object to even though at the time the limit is enacted nobody has caused any harm, and safety requirements for nuclear power plants. He says the real question is how much risk a person has to put up with before others can engage in activities that, while not harming him at the moment, might harm him in the future, and that because it is very difficult to resolve that question based on rights, cost-benefit tradeoffs and utilitarian calculations sometimes come into play. A Libertarian Legal Perspective on Vaccine Mandates (2021)
The insurance alternative
Bob Zadek proposes that health insurance companies simply refuse to cover COVID-related medical care for the unvaccinated, describing it as one sentence, and asks whether that would satisfy libertarians, satisfy the government, and address the overcrowding of hospitals. He notes that premiums are already adjusted for behavior such as smoking, and that the unvaccinated lack the political standing of other groups, so he doubts there would be political resistance. Levy responds that even though one would hope insurance companies can adjust premiums to cover the risk they incur, there are lots of examples where insurance companies have been prohibited by law from adjusting premiums, and he cites the prohibition on gender distinctions in insurance despite differences in mortality between women and men. Setting that aside, he says that if government could be persuaded to allow insurance companies to reflect risk in premiums, the idea is a very good one, and that it conforms to libertarian principles. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Levy raises administrative difficulties: some people are not refusing vaccines but medically cannot be vaccinated, and people could claim a religious exemption or a medical exemption and therefore be entitled to coverage because they have not refused. Bob Zadek replies that underwriting could be a yes-or-no refusal to cover rather than an actuarial adjustment, and that another insurance company could cater to the unvaccinated market and price its premiums accordingly. He says this would put the decision not to be vaccinated where the cost belongs. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Across episodes
The topic is touched in the 2017 episode with Michael Munger and the 2021 episode with Bob Levy. In the earlier treatment, advanced by Munger, personal autonomy is what an agency disenfranchises when it substitutes its judgment for the individual’s, with the FDA’s vaping policy as the illustration; in the later treatment, advanced by Levy, personal autonomy is a fundamental right that triggers strict scrutiny and is weighed against harm to third parties, with the vaccine mandate as the illustration. The excerpts show no development of the concept between the two: the earlier episode does not address third-party harm, and the later episode does not address regulatory capture.
What the sources do not cover
The excerpts do not state how any court resolved the constitutional questions Levy raises, nor what OSHA ultimately did. They do not supply the name of any bill, the holding of any case, or the amendment on which any argument turned. They do not state whether the insurance proposal was ever adopted or considered by any insurer. The Munger excerpt ends without any further elaboration of personal autonomy beyond the vaping exchange.