The Vindication of Michael Bloomberg: On the Coronavirus, Sugary Drinks, and Public Health
2020 has not been a good year for Michael Bloomberg thus far, but it might be the year in which the erstwhile mayor gets to claim a degree of belated vindication on his most controversial policy.
When Bloomberg attempted to ban large sugary drinks in New York City in 2012, he became reviled as the national face of nanny state authoritarianism. The ban, if polls are to be believed, was opposed by 60% of Bloomberg’s own constituents and over two-thirds of all Americans, including majorities of Democrats and Republicans. While conservatives were the most outspoken opponents of the ban, liberals such as Jon Stewart joined in the mockery.
And yet in the current coronavirus lockdowns, as many as 80% of Americans have accepted the Bloombergian notion that public health comes before individual liberty. Over the past few months, day-to-day freedom in our country has been suspended to a degree hitherto unthinkable, and Americans who violate the stay-at-home orders have faced penalties far stricter than the $200 fine which would have been levied on businesses that defied the soda ban. All this has been done in the name of “public health” — the same principle which Michael Bloomberg explicitly cited in justifying his ban.
Supporters of these lockdowns have consistently cited a legal precedent in the 1905 case Jacobson v. Massachusetts, in which the Supreme Court upheld a state law mandating smallpox vaccinations. In the decision, Justice John Marshall Harlan wrote that “the rights of the individual in respect of his liberty” could be curtailed “as the safety of the general public may demand.”
(For what it’s worth, Justice Harlan acknowledged that public health measures that were “arbitrary and oppressive” would not hold up. Many of the current lockdown measures probably fall into this category, but litigation takes time and money, and in the meantime, we will have to bow to the whims of Gavin Newsom and Gretchen Whitmer.)
If this logic applies to preventing the spread of disease, there is no reason why it should not apply to preventing obesity as well. In fact, although Bloomberg’s soda ban was overturned by the courts, they did not reject the principle that the New York City Board of Health had a role to play in promoting public health. In the final appeal, Judge Eugene Piggott explicitly drew a distinction between the ban and an earlier regulation banning trans fats in restaurants, which he argued were legitimate public health measures.
One might say that there is a clear difference between a communicable disease, such as coronavirus or smallpox, and a chronic health problem such as obesity. After all, if you infect someone with a virus, you are harming another person, but if you become fat, you are only harming yourself. Except that this isn’t strictly true. A person’s choice to eat a poor diet has externalities that stretch far beyond the limits of his body.
Let’s say an obese person has a heart attack or other medical emergency related to his condition. He will be rushed to the hospital by publicly funded EMTs on publicly funded roads. When he gets there, he will use a hospital bed and other medical resources that could otherwise have gone to a more deserving patient (such as a child with leukemia). This, in the long run, will drive up all our health care costs.
(It has been argued, by the way, that people who do not socially distance should be denied medical treatment if they come down with the coronavirus as a result of their own carelessness. This logic could easily be applied not just to obese people but also to motorcyclists, paragliders, alcoholics, and a number of other classes of people who knowingly incur health risks.)
If the obese person misses work as a result of his condition, he will harm his company and the economy as a whole. If he becomes unemployed or disabled, he will likely take advantage of public benefits. The tab for this, too, will be picked up by the taxpayers. In the meantime, he will be raking up additional fuel costs while driving and flying, which will further harm the economy and the environment.
His decision to be a glutton, in short, will affect us all. The total annual cost imposed by obesity on our society was estimated in 2010 to be over $215 billion. Nearly 8% of our total health care costs are used to treat problems associated with obesity, more in some states.
The impact of any obese individual on the system, of course, will be minuscule. However, the same could be said of any individual who chooses not to socially distance or wear a mask. In both cases, it is the aggregate effect of many people’s choices that matters — and it’s worth noting that the Supreme Court has invoked the aggregation principle to limit personal freedom before, in the 1942 case Wickard v. Filburn, when it decided that a farmer’s decision to grow wheat for his own consumption could be regulated under the Commerce Clause.
But on top of all this, obese people are making the coronavirus pandemic worse.
Not everyone faces an equal risk from the coronavirus. While the media has run a number of fearmongering stories about young and healthy people getting sick, the truth is that fewer than 1% of deaths from the virus in America have been under the age of 35, and nearly 90% of those hospitalized had at least one underlying medical condition. If you are a healthy twentysomething, your risk of death or severe illness from the virus, while not zero, is negligible.
Now, we know fairly well at this point that one of the largest risk factors of developing severe complications from the virus, aside from age, is obesity. In fact, in the abovementioned CDC study about underlying conditions, nearly half of those hospitalized were obese. What this means is that a good portion of those who are vulnerable to the virus are vulnerable as a direct result of their own poor lifestyle choices.
Although we all face different risk levels, we have been denied the right to make an individual determination of risk. The lockdown has been applied indiscriminately to the vulnerable and the nonvulnerable alike. If you are a low-risk individual, you are being forced to sacrifice your freedom not primarily for your own benefit but for the benefit of those at higher risk than you, including those whose choices have led to them being at risk.
If we did not live in a nation where one-third of the population was obese, our collective burden to slow the spread would be significantly less onerous than it currently is. If everyone in America was at peak physical fitness, the virus would not go away, but the potential death toll would be lower. Secretary of Health and Human Services Alex Azar recently said as much. In such a world, the cost-benefit analysis of reopening the economy would be entirely different. Here is yet another negative externality of obesity, and another justification for those who say that it is a public health problem worth curbing.
The argument against the Bloomberg soda ban was rooted in individual liberty, but the flip side of individual liberty is individual responsibility, and the lockdown is (among other things) a collectivization of responsibility. If we are all being forced to lock down together, then we have every reason to be resentful of people whose poor health choices helped to make this necessary, and every reason to want to pass measures restricting their ability to do so in the future.
That being said, we have two options moving forward.
The first is to accept a paradigm of personal liberty and responsibility. This would entail ending the lockdowns and implementing a system, perhaps similar to that of Sweden, which allows individuals to make their own determination of risk. Those who are at low risk can choose to return to their normal lives, while those who are vulnerable can choose to quarantine themselves (or, if they so wish, go about their business aware of the risks, as some have). Reasonable measures designed to slow the spread of the virus should be implemented sparingly, if at all, and always in a manner deeply cognizant of the freedom of those involved. We have every reason to believe that Americans, by and large, will choose to use this freedom responsibly, and carefully consider both personal and collective health.
The other option is to accept the primacy of the public health approach. In this world, the lockdowns continue, perhaps indefinitely, and daily life in America for the foreseeable future is governed by a crisscrossing latticework of regulations designed to slow the spread of coronavirus. It is a world in which the door will be wide open for the government to ban sugary drinks and other unhealthy substances which might make the crisis worse. In time, the government might even to begin to make affirmative demands of its citizens, such as exercising. So long as everyone’s health is everyone’s business, none of this is off the table.
The world that awaits us, if we follow the premises behind the lockdown to their logical conclusion, is the soft despotism infamously predicted by De Tocqueville in Democracy in America, the “immense and tutelary power” that is “absolute, minute, regular, provident, and mild,” that resembles “the authority of a parent,” that “degrade(s) men without tormenting them.”
Once such a soft despotism has established its hold, De Tocqueville wrote, “(T)he supreme power then extends its arm over the whole community. It covers the surface of society with a net-work of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”
It will be the final, glorious vindication of Michael Bloomberg. He may not have gotten far in his run for president, but he will have won 2020 in the greatest sense possible.
