Kenneth Lougee: Mask refusal is not liberty. It is anarchy.

(Rick Egan | Tribune file photo) Angry residents react when the Utah County Commission meeting was adjourned before it even started, Wednesday, July 15, 2020, in Provo, Utah.

In 1900, Florence Cox, age 10, had a problem. She wanted to go to the Hamilton Grade School in Salt Lake City. Florence’s parents also wished that she go to school. The only problem was that Salt Lake City experienced an outbreak of smallpox in 1900. Florence wasn’t vaccinated and her parents objected to vaccines.

On Jan. 14, 1900, as recorded by The Salt Lake Tribune, the school board, uncertain of its obligations, asked the city attorney to advise the school board as to its duties once the city board of health declared a smallpox epidemic. The city attorney told the school board not to admit unvaccinated children for the duration of the pandemic.

Not satisfied with this opinion, Florence appealed to the Utah Supreme Court.

The Utah Supreme Court upheld the duty of the school board to act in accordance with the direction to exclude unvaccinated children during the pandemic. Florence’s parents argued that they had a right to refuse vaccination of their child. The court made short work of this argument.

“In passing and enforcing this resolution, the board did not attempt to compel the respondent’s daughter to be vaccinated. It simply gave the option to be vaccinated or remain out of school until the danger from smallpox had passed.”

Then as now, public health advice was resisted. Indeed, The Tribune records that on Jan. 30, 1901, the Legislature passed a law forbidding school districts from excluding unvaccinated children. Gov. Heber Wells vetoed the legislation on Feb. 9, 1901.

The governor used language that might be familiar to today’s controversy over wearing face masks in public.

“It is well known that against smallpox,” the governor wrote, “we have a special measure of prophylaxis, which has restricted the ravages of this disease within the limits which are left to it by carelessness in regard to the application of this measure, or ignorance of its value.”

Wells concluded that such legislation was a step backwards that would be disastrous in outcome. The Tribune found comfort in the veto, pointing out on Jan. 13, 1903, that the sponsor of the antivaccination bill had two children sick with smallpox.

People today fear contact tracing as an invasion of constitutional liberty. In 1900, there was effective contact tracing. If you caught the disease, your name and address was published in the Salt Lake Tribune. If you were sick, you were quarantined.

And society in 1900 was serious about enforcing stay at home orders. On March 28, 1901, The state health authorities requested that the district attorney of Summit County enforce quarantines which had become lax.

While much has changed since 1900, much remains. Today, in the grip of a coronavirus pandemic we have mask refusers. These individuals wish to enter business establishments without complying with Salt Lake County Mayor Jenny Wilson’s public health directives. They argue that public health directives are a restraint of freedom.

A legislator has even compared the compulsory wearing of masks with the coming of Hitler to Germany. Really? A face mask?

Some claim exemption from wearing a mask, under a misguided interpretation of the Americans with Disabilities Act. This law does not mandate that an establishment allow even persons with legitimate disabilities in the store. It only requires reasonable accommodations which can easily be met by curbside pickup. If you don’t want to wear a mask, you have Florence’s choice of restricted access to public places.

Responsible behavior is not a denial of personal liberty; it is a societal obligation.

In 1905, The United State Supreme Court expressed support for universal smallpox vaccine.

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” the court decided. “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.”

The court said that otherwise we would not have liberty but anarchy. That is equally true of wearing face masks to protect others from virus spread. This includes the elderly, health workers and the immune compromised.

In Utah, we must decide to act responsibly in the face of this novel coronavirus by wearing masks. It is a duty we owe each other. Mask refusal is not liberty. It is simply anarchy and not a legitimate exercise of liberty.

Ken Lougee

Kenneth Lougee lives in Sandy with his wife, Jan. He practices law and occasionally writes about the United States in the early 20th century. He is the author of “Pie in the Sky: How Joe Hill’s Lawyers Lost His Case, Got Him Shot and Were Disbarred.”

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