0 61 minuti 1 mese

Qdb – Questioni di bioetica 1/2022

Abstract

So-called “vaccine passports,” otherwise known as “Covid certificates,” or “immunity passports,” have been used in many parts of the world, including large parts of Europe and North America, as a means of reducing the spread of SARS-CoV-2, ostensibly on the basis that vaccinated individuals are at lower risk of contracting and spreading the disease than unvaccinated individuals. Given the fact that there is substantial international disagreement concerning the ethical, medical, and legal merits of a vaccine passport system, and such a system has the potential to fundamentally alter the way we travel and socialise, this is a question that deserves careful and painstaking analysis. In this article, I weigh up the potential benefits and harms for human health and well-being of vaccine-based restrictions on social mobility and travel, and make the case that vaccine-based discrimination, whether for international travel or for access to domestic venues, constitutes an inappropriate and disproportionate response to the Covid-19 pandemic, whose harms to a free and open society are not justified by its associated public health benefits.

When, If Ever, are Vaccine Passports An Acceptable Tool of Disease Control in a Free and Open Society? A Normative Assessment

So-called “vaccine passports,” otherwise known as “Covid certificates,” or “immunity passports,” have been used in many parts of the world, including large parts of Europe and North America, as a means of reducing the spread of SARS-CoV-2, ostensibly on the basis that vaccinated individuals are at lower risk of contracting and spreading the disease than unvaccinated individuals. Given the fact that there is substantial international disagreement concerning the ethical, medical, and legal merits of a vaccine passport system, and such a system has the potential to fundamentally alter the way we travel and socialise, this is a question that deserves careful and painstaking analysis. In this article, I weigh up the potential benefits and harms for human health and well-being of vaccine-based restrictions on social mobility and travel, and make the case that vaccine-based discrimination, whether for international travel or for access to domestic venues, constitutes an inappropriate and disproportionate response to the Covid-19 pandemic, whose harms to a free and open society are not justified by its associated public health benefits.

Western citizens pride themselves on living in free and open societies, that is, societies in which individual citizens are trusted with large measures of freedom both in the personal and social sphere, and in which a wide range of diverse cultures and ways of life can coexist and interact in an atmosphere of peace, social and geographic mobility and mutual respect and toleration. In a free and open society, citizens’ liberties, equal legal standing, and equal access to social life are robustly protected both by custom and law, and do not depend on the shifting policy goals of the government of the day. Nor are they easily traded off during a public crisis, even if their sacrifice might advance some public interest, such as security, political stability, or public health. Otherwise, civil liberties would become like pawns on a chessboard, vulnerable to the designs of government planners and crisis managers, who could cancel them under the pretext of advancing the common good, fighting terrorism, or some other emergency, whether real or perceived.

Now, the moral and political robustness of civil liberties and social and political equality does not mean that there are no circumstances under which they may be compromised for the sake of a vital public interest. It just means that we should be extremely conservative about eroding the framework of liberties and rights upon which a free and open society rests, and only do so when a compelling case can be made that doing so is the only way to protect citizens from a grave threat to their survival or a lethal blow to their values and way of life. For example, a case might be made that during an intense spate of terror attacks, some methods for gathering intelligence, such as selective wire-tapping, would be permissible even if they compromised the privacy rights of individuals with known connections to terror suspects. During a civil war, a government might be justified in imposing involuntary curfews during hostilities to minimise civilian casualties.

While we may justify the weakening of certain rights associated with a free and open society when critical public interests require it, evidently this does not give governments a blank check to introduce whatever measures they see fit during a public crisis. Each measure must be evaluated on its merits. If the case for compromising on the values of a free and open society is not compelling, the measure in question should be rejected. In this paper, I propose to examine one of the most controversial methods of disease control employed during the Covid-19 pandemic, namely vaccine-based restrictions on travel and social mobility. Vaccine passport schemes were defended by many governments as necessary for the purpose of limiting the spread of an infectious disease. But even supposing that such schemes had some success at reducing transmission of SARS-CoV-2, an argument must still be made to show that these benefits were sufficient to justify their associated harms to a free and open society. In this paper, I argue that they were not.

The argument begins with a brief exposition of the leading elements of an ideal of a free and open society. I then explain what I mean by vaccine passports, specifically in the context of the Covid-19 pandemic, and how they are typically justified. Third, I argue that extensive vaccine-based restrictions on travel and social mobility, at least of the sort that we have seen during the Covid pandemic, are sufficiently coercive and discriminatory to significantly undermine both the freedom and the social equality of citizens. Fourth, I present a two-pronged test that must be met in order for extraordinarily coercive and discriminatory interventions to be justified in a free and open society, and argue that vaccine passports as understood in the context of the Covid pandemic do not pass the test.

1. What is a free and open society?

The notion of an “open society” has been developed by a number of twentieth century thinkers, including Henri Bergson and Karl Popper, and more recently recapitulated by Gerald Gaus.[1] My interest in this paper is not to reproduce the history of the concept, but to highlight some of its salient features, as an ideal that has been central to the way of life of modern constitutional democracies, and has manifested itself, to a greater or lesser extent, in very different historical moments, including Greek antiquity and early modern Italian city-States. Of course, to the extent that either of these social systems relied upon slavery and/or curtailed the public standing of women, we cannot say that they were truly free and open societies. However, to the extent that they did incorporate a certain degree of cultural diversity and social and economic mobility, and rested on a form of shared civility that transcended local custom and feudal allegiances, they did embody certain features of free and open societies.

In our contemporary context, a free and open society could be understood as a society in which (a) persons of different races, ethnicities, religions, cultures, moral and political commitments, and ways of life peacefully and civilly share social spaces like streets, towns, cities, schools, workplaces, restaurants, theatres, cinemas, and so on; (b) social participation and access to shared spaces like public services and hospitality is not systematically withheld from specific social groups based on group markers such as ethnicity, religion, sex, age, health, or political allegiance; (c) there is a strong preference for forms of social cooperation that involve horizontal agreements between individuals and groups rather than vertical, top-down orders; (d) individuals enjoy a generous latitude to freely dispose of their own person and property as they wish, within certain limits of law and civility; (e) people are generally free to express their opinions without fear of reprisal or censorship; (f) social life is regulated by general rules that enjoy broad public legitimacy and are thus not perceived as excessively partisan, coercive or unilateral in their operations; (g) individuals are generally free to move around society at will, as long as they do not engage in delinquent, reckless, or criminal behaviour; and (h) all members of the society are respected as equal rights-holders, and enjoy equal protection of the law, irrespective of ethnicity, religion, social background, sex, age, or political allegiance.

All of these characteristics of free and open societies, taken together, not only benefit the individual members of such societies; they also serve to strengthen the public legitimacy of its economic and political institutions, by promoting a safe, fair, and inclusive social order. On the one hand, individuals feel safe from the arbitrary violence and domination of private and public actors, which makes them more positively disposed toward their shared civil order, which is viewed as a source of personal and collective security.[2] On the other hand, belonging to this or that social, ethnic, religious, or political group does not automatically reduce a person’s access to social life or expose them to abusive treatment just because of who they are, what they believe, or who they associate with. Consequently, members of an open society, independently from their ethnicity, religion, social allegiances, or way of life, can unreservedly endorse the values and institutions of a free and open society rather than feeling alienated from them or bitter toward them.

A free and open society, understood in these terms, is a delicate achievement, and certainly not one to be taken for granted. There are relatively few times and places in history when people of different religions, ethnic origins, political ideals, and cultures have managed to share the same social space, the same government, and the same broad narrative of political legitimacy. Much more frequently, people have been bound together into tight-knit social enclaves, tribes, or classes, with limited openness to other groups and cultures, and not infrequently, have adopted attitudes of distrust, animosity, and even violent rivalry toward outsiders.

2. What Are Vaccine Passports, in the Context of Covid-19?

The central claim of this paper is that vaccine passports, specifically as they have been developed in the context of the recent Covid pandemic, constitute a serious and unjustified blow to the ideal of a free and open society. To redeem this claim, I should begin by explaining what I mean by a vaccine passport in the context of the Covid pandemic, how vaccine passports are supposed to function, and how they are typically justified.

Vaccine passports are one of the most conspicuous methods for discriminating against some citizens and in favour of others on public health grounds. A vaccine passport is used to control admission to social venues and points of departure for international travel based on vaccination status. Whether or not a literal paper or digital passport is involved, what matters for my purposes is the notion that producing proof of vaccination secures easier access to travel, social life, or public services, while failing to do so imposes some special hurdle or cost as a precondition for access. Vaccine passports, if they take into consideration other markers of immunity, such as recent recovery from Covid-19, may also be referred to as immunity passports. But I will stick with the popular usage, since my primary concern in this paper is with the differential treatment extended to vaccinated and unvaccinated citizens.

Israel was one of the first regimes to introduce a domestic vaccine passport system, in February 2021. This move was to be emulated by a significant number of other governments, both for international travel and access to domestic venues. In the European Union, for example, a union-wide digital vaccine certificate was introduced, to be employed according to the immigration policies of each member State. Numerous nations, including Ireland, England, France, Spain, Germany, Austria, the Netherlands, Sweden, Australia, and New Zealand, imposed some version of vaccine passports, both for immigration and for access to domestic venues like hospitality and transport. At the time of writing (28th March 2022), the United States requires noncitizens to be fully vaccinated upon entry; while Canada requires anyone over 12 years of age boarding domestic or international flights from Canada to be fully vaccinated.

Vaccine passports are not entirely unprecedented. First, schools require children to vaccinate against certain diseases such as polio. Second, proof of vaccination against certain diseases such as yellow fever is required for travel to certain parts of the world. However, traditional vaccine certificates are quite different to a Covid vaccine passport, for several reasons: first, if we compare Covid vaccine requirements with traditional school vaccination requirements, child vaccines are extremely well tested over many years and their short and long-term risks in the general population are far better understood than those associated with Covid vaccines, which have been in operation for the general population for little over a year – and significantly less, when the Covid vaccine passports were first introduced. Furthermore, children have not yet reached the age of consent, so requiring them to vaccinate – albeit with their parents’ consent[3] – does not raise the same concerns for their standing as free and equal citizens as it would if they were adults.  

If we compare Covid vaccine requirements with traditional adult vaccination requirements, a couple of significant differences spring to mind: first, traditional vaccine certificates are designed to protect against diseases that are extremely rare in the developed world, whereas Covid vaccine passports are designed to protect against a disease that was already in wide circulation globally by the time the passports were implemented. Consequently, traditional vaccine passports protect a largely innocent or unexposed population, probably with low levels of innate immunity, making it more proportionate to the real risk the disease poses to unvaccinated individuals; whereas Covid vaccines are designed to protect against a disease which is already in wide circulation across the developed world, entailing large reservoirs of natural immunity in the target population.[4]

Second, traditional vaccine passports affect a very small fraction of the global population, namely those people who need to travel to areas of the world with certain diseases such as yellow fever; Covid vaccine passports, by contrast, have been implemented for routine, everyday travel across Europe, and access to everyday social venues like restaurants, shopping centres and cinemas at the domestic level, affecting an infinitely larger number of citizens than the number of citizens traveling from the developed world to developing nations with tropical diseases like yellow fever. Third, the Covid vaccine is relatively young and its risks are not as well understood as those associated with the sorts of vaccinations that are required for travel to some developing countries. For all of these reasons, the forms of vaccine-based discrimination we have seen in the age of Covid are far more controversial than those applied to a tiny minority of international travellers entering some countries in the developing world. 

A vaccine passport system, such as the EU’s “digital Covid Certificate,”[5]  is used to track people’s vaccination status and limit unvaccinated persons’ access to public services, social venues, or international travel. A vaccine passport may be implemented either conditionally or unconditionally. An unconditional vaccine passport system would make it impossible for unvaccinated persons to travel or attend social events. Alternatively, a conditional vaccine passport system would make travel and/or social events (depending on how extensively the system is applied) more cumbersome, inconvenient, and costly, but not impossible, for those who have not received the vaccine, since the unvaccinated, under a conditional vaccine passport system, would be required to produce evidence of a recent negative Covid test, or else evidence of recent recovery from a Covid infection (in the case of the European Union, a PCR Covid test not more than 6 months old), since a recent past infection is now known to confer substantial immunity to the disease.[6]

The most obvious justifications for a vaccine passport scheme are (a) that it could make international travel and a certain range of social venues safer from the spread of Covid-19, thus blunting the negative impact of the pandemic; (b) that it would provide citizens with an additional incentive to accept a vaccine against Covid-19, thus propelling us closer to herd immunity; and (c) that it might calm citizens’ insecurities and fears surrounding Covid contagion, permitting them to start traveling, working, and socialising with a greater sense of security and confidence – which would be a welcome boon to the travel and tourism industries, not to mention restaurants, cinemas, sports, concerts, etc.

3. How Covid Vaccine Passports Undermine the Ideal of a Free and Open Society

There are two aspects of a free and open society that I would like to focus on in order to assess the impact of Covid vaccine passports: first, the desirability in a free society of solving social problems, to the extent possible, through uncoerced cooperation that respects the rational autonomy of individual citizens, rather than through command-and-control structures; and second, the importance, in an open society, of keeping a large part of the public sphere open to all law-abiding citizens, and free from forms of exclusion based on group markers such as ethnicity, religion, sex, age, health, or political allegiance. While the values of personal liberty and social inclusion are not absolute, they do carry a lot of weight and should not be set aside or overridden lightly. I shall argue in this section that vaccine passports do serious damage to both of these values, even where they are applied exclusively to international travel.

Let’s begin with the value of personal liberty, or the right of individuals to freely dispose of their own person and property according to their own conscientious judgments, within certain reasonable limits of lawful and civil conduct. One implication of personal liberty is the right to bodily integrity, by which I mean the right that each individual has to immunity from any form of violence to his body, including non-consensual medical and pharmacological interventions. Even though we have a mind, we are corporeal beings. I am my body, not just a mind that happens to occupy a body. As such, any attempt to manipulate my body, intervene in my body, or administer a substance into my bloodstream, is one that touches the intimacy of the self, who I am as a human person.

If I am an adult in possession of my rational faculties, medical interventions in my body should only be permitted when they are authorised by my informed consent. If I am a child, this consent may be delegated to a competent parent or guardian. The right to informed consent to medical treatments is a well established principle of law and medical ethics, also recognised by numerous international conventions.[7] But more importantly, it is a principle that is required by the right to bodily integrity. Any medical intervention that overrides an adult’s informed consent is an act of violence, which should not be tolerated or accepted in a civil society.

Most of us are familiar with the fact that Nazi doctors experimented upon patients without their consent. This is a direct attack upon bodily integrity, as such experiments involved physical interventions in a person’s body without their consent. The fact that these interventions are experimental and therefore subject the person to a substantial risk (in most cases, certainty) of physical harm makes them doubly immoral. However, even if these Nazi doctors had administered routine treatments to these patients, doing so without their consent would still have been a violation of their bodily integrity.

In a society in which bodily integrity is not legally and socially recognized, another person or institution may override my right to bodily integrity with impunity. Even if no actual intervention occurs, a society without legal and customary protection of bodily integrity puts people at the mercy of others who may, whenever they so decide, abuse their body, make changes to their body, or introduce substances into their body, without their consent. For example, in a slave society, a slave may be treated by their master with impunity, as having a body that is at the disposal of the master to do with as he wishes. That sort of relationship means that the slave’s bodily integrity is at all times intensely vulnerable to violation by others. In a society in which rape is normalised and rapists go unpunished, women’s right to bodily integrity is violated with impunity. Wherever people’s right to bodily integrity is not upheld by law and custom, this vulnerability remains even if no act of violence is actually performed.[8]

A regime of vaccine passports is a more subtle violation of bodily integrity than directly coerced treatments and experiments. Nobody is strapped to a bed and injected with a vaccine against their will. However, when you manipulate a person’s choice set by artificially altering the costs attaching to different outcomes, this is a real form of coercion, even if no overt threat is issued. In most vaccine passport schemes that have been implemented during the Covid pandemic, authorities did not tell anyone directly, “you must vaccinate, or else you will go to prison or pay a fine.”[9] But the net effect of a vaccine passport scheme is to attach a significant penalty to vaccine refusal. In the worst case scenario, those who refuse a Covid vaccine may be completely deprived of access to the public sphere. In the best case scenario, they must undergo inconvenient, unpleasant, and costly testing every single time they need to travel or access a “Covid-free” event. The only way a vaccine dissenter can escape these inconveniences is by acceding to the demand by public officials to get vaccinated.  

Official PCR and antigen tests are not especially cheap (in Ireland, a PCR test costs in the range of 100 euros) and are certainly not pleasant. Unvaccinated travellers must not only pay the price of the test, but take time out from their schedule to attend a testing centre and have the test administered to them. The test involves sticking an instrument down the throat and/or nostril to retrieve a mucous sample. By permitting vaccinated persons to travel and socialise without any costly or unpleasant testing, while requiring the unvaccinated to submit to such testing every time they travel internationally or attend certain types of social event, a vaccine passport system clearly makes travel and socialising significantly more costly for those unwilling to vaccinate. It effectively applies a form of duress upon the unvaccinated, who are made to understand that if and only if they accede to the demand to be vaccinated, their social and professional life will go a lot more smoothly. This sort of pressure clearly undermines a person’s ability to make uncoerced choices about which medications to insert into their body.

The second important value that vaccine passports would undermine is social inclusion and equality. Of course, citizens of a constitutional democracy are not treated as equal along all dimensions. For example, people with greater and more valued types of intelligence and skills have a competitive advantage in a high-skill job market. However, in an open society, everybody has a right, in principle, to participate on broadly equal terms in social life. That means that unless they pose a clear threat to others’ safety or are conspiring to commit a crime, each and every citizen should be able to participate in social life and enjoy the benefits of social interaction and travel on the same terms, broadly speaking, as anyone else.

Obviously, people may lawfully fraternise with whomsoever they wish in the privacy of their own homes, and are under no obligation to admit any particular class of persons to their homes. Similarly, private clubs may reasonably exclude certain classes of persons, such as people who are not willing to pay an entry fee, or do not follow the dress code. The mere fact that one may be excluded from certain social venues for failing to follow the rules of the venue, or for ignoring its dress code, is not necessarily morally offensive and does not necessarily divide society into inferior and superior classes of citizens. Furthermore, even problematic forms of social discrimination conducted in specific venues would not necessarily pose a grave threat to the integrity of a free and open society, as long as social life in general is sufficiently porous and diversified to allow most citizens to access a decent range of social venues without confronting arbitrarily exclusionary rules at every turn. We have special reason to worry about the sort of discrimination associated with vaccine passports, since it is systematic, society-wide discrimination that would effectively erect a medically defined under-class of citizens who are impeded from accessing a broad swathe of social life, just because of their personal medical choices.

General access to social life, including the life of bars and restaurants, is an important sign of recognition and inclusion as a social equal. An open, porous social order promotes the idea that citizens have approximately equal social standing and may, as one philosopher put it, proudly stand toe to toe, and look each other in the eye as equals.[10] If certain more or less well defined classes of citizens are shut out from a large swathe of social life, on grounds other than misbehaviour, gross incivility, or public disorder, then the democratic culture of a society is eroded, and a two-tier, class-based society is conjured into being, in which there is one set of rules and privileges for one class of persons, and another for another class.

If a large group of citizens confronts systematic barriers to social participation, for reasons disconnected from disorderly behaviour, they are likely to suffer damage to their self-esteem, finding it difficult to believe in their status as equal citizens. In addition, they will notice the contradiction between the democratic ethos of their society and their own unequal status, and conclude that the system treats them unfairly. This puts the notion of a share social compact on shaky ground, and may damage marginalised groups’ sense of loyalty to the political system and to the constitution that supports it.

It is impossible to define with a hard-and-fast rule what sorts of exclusion and discrimination are legitimate, and what sorts are arbitrary and unacceptable. There are lots of debateable cases, such as ladies-only events and men-only golf clubs, upon which thinkers with different moral and political sensibilities may come down differently. But it is now widely accepted that one should not suffer systematic exclusion from social life as a whole, because of the colour of one’s skin, one’s religious beliefs, one’s sex, one’s health status, or one’s political opinions. These sorts of exclusion, at least if they are systematic or society-wide (for now, I am setting aside local forms of exclusion connected with a specific association’s declared purposes, such as a church’s exclusion of non-believers), are obviously inconsistent with the ideal of civic equality as we understand it in a modern democracy. As such, it must be justified as a proportionate response to some specific threat posed by the behaviour of excluded persons, or by some essential consideration of public order sufficiently weighty to override the value of civic equality.

A vaccine passport system, whether applied to international travel or to participation in domestic social events, involves a fundamental transformation of the way we socialize and travel, authorizing border police to exclude unvaccinated persons from entry to the country, and authorizing event managers to exclude unvaccinated persons from attendance at domestic social and cultural venues. Even in its weaker, conditional form, a vaccine passport scheme would require unvaccinated persons to repeatedly subject themselves to PCR or antigen testing that vaccinated persons can easily avoid. Those who opt out of vaccination programmes might well find themselves occupying a new social “underclass”: not of race, national origin, or economic status, but of documented vaccination status. Significantly, the source of their exclusion would not be disorderly behaviour, incivility, or criminality, but their medical choice not to insert a vaccine into their bloodstream. 

To sum up, from the perspective of a defender of free and open societies, vaccine passports present two serious problems: first, they would effectively create a two-tier society, in which the vaccinated move around and travel relatively hassle-free, while the unvaccinated are subject to unpleasant and costly testing every time they travel or, worse still, every time they attend a concert or cinema. Second, by depriving the unvaccinated of normal access to social life and travel, vaccine passports apply significant pressure upon citizens to vaccinate, hollowing out the principle of informed consent and infringing citizens’ bodily integrity. A further risk of vaccine passports is that by dividing society into superior and inferior classes, it could stoke up a lot of social resentment, with a negative impact on the public legitimacy of the civil and constitutional order.

4. Are the Harms of Vaccine Passports Justified by their Benefits?

Let us suppose that I am right, and a vaccine passport scheme does seriously threaten citizens’ right to bodily integrity as well as their standing as social equals. It does not automatically follow from this that vaccine passports are unethical or unjust. There are extraordinary circumstances in which we might be prepared to admit significant compromises of fundamental values for the sake of a greater good, such as collective survival, public security, or public health. For example, if a terrorist swallowed a bomb and there were reasonable grounds for suspecting that he intended to blow up a public venue, a bomb disposal squad would probably be justified in anaesthetising him without his consent and performing involuntary surgery upon him to defuse the bomb within his stomach (assuming, for the sake of argument, that such an operation was in fact viable).

When, if ever, might measures that are extraordinarily coercive and discriminatory, be justified in a free and open society? I would like to propose a two-pronged test that must be met to justify significant curtailments of freedom and social inclusion: (i) first, the unavailability of less coercive and discriminatory methods for achieving comparable results; and second, the proportionality of the harms and risks associated with such interventions to their likely benefits for citizens.

We have already established that a Covid vaccine passport scheme seriously jeopardises two fundamental values associated with a free and open society, namely individual liberty and social inclusion. We must now inquire, using our two-pronged test, whether a Covid vaccine passport scheme, notwithstanding its intensely coercive and discriminatory character, might be justified because of its contribution to efforts to mitigate the worst harms of the Covid pandemic. The question arising from our two-pronged test could be posed as follows: (a) is there no less harmful intervention available that might achieve comparable results? and (b) are the likely benefits to be gleaned from such a scheme sufficiently compelling to justify its risks and harms to a free and open society? If the answer to either of these questions is “no,” then a vaccine passport scheme has no place in a free and open society.

(a) Is there no less harmful intervention available that might achieve comparable results?

To understand the potential benefits of a universal vaccine passport system, we should begin by noting two facts about Covid-19: first, while every death is a tragedy, recent estimates place the estimated infection fatality rate of Covid-19 (the proportion of infected patients who die from the disease) at somewhere in the range of 0.2%, far lower than was initially feared,[11]  while the average age of patients who have recently died from Covid-19 in England and Wales, according to official ONS data, is 81 for males and 84 for females.[12] If we compare this with life expectancy in the United Kingdom between 2017 and 2019 (79.4 years for men, 83.4 years for women), it is clear that this is a disease that tends to cause death near the end of life. Second, the burden of this particular disease is highly concentrated in certain populations, not spread evenly across the general population. Those who need special protection from SARS-CoV-2 are principally the elderly and those who suffer from significant health complications like diabetes, heart conditions, and obesity.[13]

This means that whatever benefits are to be gleaned from a system designed to screen out or pre-test unvaccinated citizens for travel or social venues will accrue primarily to those persons who are elderly or suffer from underlying health conditions. To understand the proportionality of the harms of a Covid vaccine passport system to its likely benefits, we need to begin by considering whether its purported benefits, in particular for these vulnerable cohorts of the population, can be achieved by a method that is less intrusive and less damaging to individual liberty and social inclusion. There are a number of tools worth considering before admitting that vaccine-based discrimination in travel and social venues is necessary to mitigate Covid disease and death.

The most obvious alternative to a vaccine pass is a completely voluntary vaccination programme, targeted primarily at medium and high-risk individuals and cohorts, accompanied by a transparent information campaign highlighting the benefits for medium to high-risk groups of getting vaccinated. Logically, higher-risk populations have a stronger incentive for accepting a vaccine, once they understand that they are at greater risk of suffering severe Covid disease than the general population, so it should be easier to persuade them to take the vaccine than to persuade young and healthy people at far lower risk from Covid-19.

If high-risk populations take the vaccine, and the vaccine actually works at reducing the risk of severe disease and hospitalisation for high-risk groups – as available evidence appears to suggest – then a voluntary vaccination campaign targeted exclusively or predominantly at medium to high-risk cohorts should be able to achieve most of the risk reduction required, and would be far more efficient and far less disruptive to the values of a free and open society than a dispersed, population-wide campaign designed to pressure everyone, largely independently from their age, health, or medical history, to vaccinate.  

There has already been a reasonably high uptake of the vaccines among many vulnerable populations, proportionately higher among the elderly than among the young. In EU countries, for example, at the time of writing (25/3/2022), on average over 92% of over 60s have already had at least one dose of a Covid vaccine, and 91% have already had two doses; 86% of those in the 50-59 age bracket having already received their first dose, and 85% have had a second dose; 81% of those in the 25-49 age bracket having received their first dose, and 78% have had two doses.[14] This level of vaccination, especially among over 50s should, assuming the vaccines work, substantially reduce the disease burden of Covid-19. The evidence of vaccine efficacy can then be collected and shared with the public, which should continue to reinforce the incentive for voluntary vaccination among vulnerable cohorts. A voluntary vaccination campaign should, then, be able to achieve comparable benefits to those of an involuntary vaccine pass system.

(b) Are the likely benefits to be gleaned from such a scheme sufficiently compelling to justify its risks and harms to a free and open society?

Even if someone was sceptical that voluntary vaccination could achieve comparable results to those of a vaccine passport scheme, they would still have to show that the harms of vaccine-based discrimination were justified by proportionate benefits. Any scheme that would create systematic social and economic discrimination against unvaccinated citizens could only be justified, if at all, if we had a high degree of confidence that its benefits would be proportionate to its harms to liberty, social inclusion, and other human goods. The onus is therefore on advocates of vaccine passports to show that they are indeed likely to produce compelling public health benefits proportionate to their harms to liberty and social inclusion. If the alleged benefits are largely speculative or uncertain, then the case for overriding freedom and social inclusion has not been made.

It is probably impossible to ascertain with a high degree of confidence what the precise impact of a vaccine pass system would be on infections and hospitalisations, since we are dealing with immensely complex and dynamic societies, with an infinite variety of social contexts within which disease transmission can occur, as well as vaccines that only confer partial and waning immunity against symptomatic disease. This introduces a significant level of uncertainty about the likely contribution of vaccine passports to disease reduction. Indeed, on balance, the notoriously complex dynamics of disease transmission, combined with the pre-existence of reservoirs of natural immunity and the problem of waning vaccine immunity, make the claimed public health benefits of a vaccine passport scheme too speculative and unsubstantiated to justify its harms to a free and open society.

First, many of the protective benefits alleged by such a system would already be enjoyed by precisely the populations most affected by Covid-19, namely the elderly and those with chronic disease, since these are the very populations that would have greater incentive to accept the vaccine voluntarily, and their protection does not depend on uptake of the vaccine by other population cohorts. Those who run high risks from Covid-19 may freely vaccinate and thus obtain the protective benefits of a vaccine, irrespective of the vaccination status of other citizens. Assuming these vaccines confer immunity, unvaccinated citizens should pose no serious risk to their vaccinated counterparts.

Second, those who are at lower risk from Covid-19, and thus have lower incentives for accepting a Covid vaccine voluntarily, such as the young and healthy, and those who have already been naturally exposed to the virus, would derive very limited and uncertain benefits from the vaccine. Aside from the fact that the risk-benefit tradeoff associated with vaccination is much more debateable in the case of a person in good health or with enhanced immunity through prior exposure to the virus, the overall contribution to risk mitigation from low-risk populations getting vaccinated is doubtful. Thus, discriminating against healthy people and those with prior exposure to Covid-19 for declining the vaccine would not be justified by any clear and compelling public health benefit, while it would significantly undermine the values of liberty and social inclusion, as we have already seen.

What about the argument that a vaccine pass could reduce the level of disease transmission by screening out disease carriers from social venues? The case for vaccine passports substantially reducing community transmission and ultimately making a big difference to disease outcomes is weak and speculative at best, given the immense complexity of transmission dynamics and the waning protection afforded by vaccines against symptomatic disease. If population-wide lockdowns have had limited success at stemming disease, we would be naïve to believe that vaccine controls at a selection of social venues will be more successful.   SARS-CoV-2 has been shown in numerous contact tracing studies to spread principally in intimate settings like households.[15] For every social encounter that is controlled by a vaccine passport, there would be tens of thousands that are not, if you include household events, private functions, and any part of the hospitality and tourism sector that refuses to introduce or vigorously enforce a passport scheme. For this reason, selective use of vaccine passports would be unlikely to change the fundamental dynamics of a disease that is already circulating widely. I am unaware of any study showing a marked trend of improved Covid outcomes in countries with domestic vaccine passports compared with countries without them.[16]

The limits of a vaccine passport scheme at reducing infections might be mitigated by imposing a passport scheme on all private events, including home events, by law, a move that would be extremely costly to the State and would require agents of the State to engage in surveillance of citizens’ private lives on an ongoing basis, which many would consider an unacceptably high price to pay for cutting the rate of infection. Even in this rather fanciful, dystopian scenario, the real harms being averted by such a totalitarian intervention would be relatively minor in a society in which the vast majority of elderly and vulnerable citizens have already been vaccinated and are protected against severe disease outcomes. 

Finally, checking vaccine status at borders would do little to control the total rate of community infections, largely because by the time a pandemic is declared, the virus tends to be already in circulation in most countries due to the frequency of international travel. Strict border controls might make some impact if the disease was circulating widely in some countries and practically absent from others. But given that the disease was already well seeded in most countries by the time borders were closed, including most of Europe and North America, border controls – with the possible exception of remote islands with limited ongoing contact with the rest of the world – are likely to have a negligible impact on overall community spread. It is worth noting, in this context, that the official WHO guidelines on pandemic control from 2019 (“Non-pharmaceutical public health measures for mitigating the risk and impact of epidemic and pandemic influenza”) specifically flagged border controls as an ineffective strategy for containing the harms of a pandemic in a globalized world: a strategy “not recommended in any circumstances.”

If (i) most of the population was equally susceptible to a virus and its associated risks of disease and death, (ii) we had a vaccine that was extremely safe, effective, and rigorously tested for short and long-term risks, (iii) the virus in question had a substantially higher lethality than Covid-19, and (iv) there was no effective treatment available, one might build a case that vaccine-based discrimination applied at a population-wide level could be a proportionate and effective response to an epidemic. While the fourth condition may be true of Covid-19 (though this is contested by some physicians and scientists), the first three conditions are not. Covid vaccines have not been in existence for long enough to gather and analyse rigorous long-term safety information; the available data clearly show that infection with SARS-CoV-2 entails very low risks for large cohorts of the population.[17] Under these circumstances, high-risk groups like the elderly and the obese have the option, and the incentive, to seek out the protection of the vaccine, while low-risk groups, like the young and healthy, do not necessarily derive a clear health benefit from taking the vaccine. For this reason, it is doubtful that vaccine discrimination applied at a population-wide level would be an efficient way to reduce the overall disease burden.[18]

Add to this, the growing body of evidence that those previously exposed to SARS-CoV-2 enjoy substantial immunity (meaning that future infections, if and when they occur, are likely to result in milder disease)[19] and the fact that the Covid vaccines confer limited and rapidly waning protection against symptomatic disease (evidence suggests much of their competitive advantage in protecting against symptomatic disease, when compared with the unvaccinated population, disappears within 6 months),[20] and the net public health benefits of excluding all unvaccinated citizens from travel and social venues become extremely attenuated. Even if substantial benefits are logically possible, they remain largely speculative and are not supported by solid evidence. One can reasonably conclude that the far-reaching harms this level of government coercion and discrimination would inflict upon civic equality and the right to bodily integrity are not justified by any clear and compelling evidence for proportionate public health benefits, especially in the context of a disease with an estimated Infection Fatality Rate of approximately 0.2%.[21]

* * *

By excluding the unvaccinated from full and equal social participation, and applying significant pressure upon them to vaccinate, a vaccine passport system undermines two values that are pivotal to a free and open society: the right to bodily integrity, and the equal standing of all citizens in the public square. In addition, it creates social conditions propitious to resentment, public unrest, and political instability. If these harms were compensated by proportionate benefits, such as a major reduction in a disease with an extremely high rate of hospitalisation and death, one might make the case that such harms are regrettable, yet justifiable on balance. Given that (i) Covid vaccines have limited success at blocking transmission; (ii) vaccine passports do not efficiently target high-risk population cohorts, and (iii) such schemes are unable to control the spread of disease in thousands of social venues unaffected by vaccine controls, there is no compelling evidence to support the proposition that Covid vaccine passports substantially reduce the disease burden of any population. Consequently, their harms to a free and open society are not justified by proportionate benefits.

In light of these considerations, we should return to more traditional and effective methods for tackling epidemic risk, such as sound public health advice, safe and voluntary vaccinations, early intervention with effective and safe treatments, and good hand hygiene and ventilation. Only time will tell if vaccine passports become the new “normal,” and if so, how severe and far-reaching a form of vaccine-based discrimination they will unleash. In the meantime, those of us who believe in bodily integrity and civic equality have good reason to firmly oppose vaccine passport systems, whether for international travel or for access to domestic social venues. 

Bibliography

Bergson, Henri. Les Deux Sources De La Morale Et De La Religion. Paris: Presses Universitaires de France, 2008. 1932.

Gaus, Gerald. The Open Society and Its Complexities. New York: Oxford University Press, 2021.

Ioannidis, John P.A. “Infection fatality rate of COVID-19 inferred from seroprevalence data.” Bulletin of the World Health Organization, 99 (‎1)‎, 19 – 33F. World Health Organization. http://dx.doi.org/10.2471/BLT.20.265892. First published 14/10/2020.

Nordström, Peter, M Ballin and A Nordström, “Effectiveness of Covid-19 Vaccination Against Risk of Symptomatic Infection, Hospitalisation, and Death up to 9 Months: A Swedish Total-Population Cohort Study.” The Lancet, February 4th 2022, DOI https://doi.org/10.1016/S0140-6736(22)00089-7.

North, Douglass C., John Joseph Wallis, and Barry R. Weingast. Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History [in English]. Cambridge University Press. Cambridge University Press, 2009.

Pettit, Philip. On the People’s Terms: A Republican Theory and Model of Democracy [in English]. Cambridge University Press. Cambridge University Press, 2012.

———. Republicanism: A Theory of Freedom and Government. Oxford University Press. Oxford University Press, 1997.

Popper, Karl R. The Open Society and Its Enemies. Routledge. 5th ed.: Routledge, 2002. 1945.

Zarachy J. Madewell et al, “Household Transmission of SARS-CoV-2: A Systematic Review and Meta-analysis,” JAME Network Open 2020;3(12):e2031756. doi:10.1001/jamanetworkopen.2020.31756.


[1] See Henri Bergson, Les deux sources de la morale et de la religion (Paris: Presses Universitaires de France, 2008 /1932), esp. chaps. 1 and 4, and Karl R. Popper, The Open Society and its Enemies 5th ed. (Routledge, 2002 /1945). For an excellent recent description of the open society, cf. Gerald Gaus, The Open Society and Its Complexities (New York: Oxford University Press, 2021). Finally, what North, Wallis and Weingast call “open access orders” are one way to interpret the notion of a free and open society. Cf. Douglass C. North, John Joseph Wallis, and Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge University Press, 2009).

[2] For a well-known theorization of non-domination as a pivotal value of free societies, see Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997).

[3] It is true, of course, that the cost to a child of not receiving a vaccine – non-admission to a school – is so high that for practical purposes, parents are under immense pressure to give their consent to the procedure. It is not my intention here to defend involuntary vaccination of children, just to point out that it is not morally equivalent to directly requiring adults to receive a relatively novel vaccine whose risks are still being studied.

[4] For example, over 90% of the English population has been estimated to have Covid antibodies and this level has remained stable since August 2021, according to Office of National Statistics data (https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/conditionsanddiseases/datasets/coronaviruscovid19antibodydatafortheuk/2022). This does not prevent all Covid hospitalisations but by increasing the overall level of population immunity, it substantially reduces the overall disease burden of Covid-19.

[5] For more details, see this information provided by the European Commission: https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/safe-covid-19-vaccines-europeans/eu-digital-covid-certificate_en

[6] In practice, of course, many Covid-recovered people would be unable to produce proof of prior infection within the required timeframe or in the precise format required, and therefore would have to submit to regular testing every time they travel or attend a “covid-free” event.

[7] See Article 6 of the Universal Declaration on Bioethics and Human Rights adopted in 2005 by the United Nations Education, Scientific, and Cultural Organization (UNESCO): “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice..” See also Article 5 of the Convention on Human Rights and Biomedicine, also known as the Oviedo Convention, adopted by the Council of Europe in 1997: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”

[8] Here, I am drawing on Philip Pettit’s insight that a relation of domination can occur in a menacing situation, even if the dominator chooses not to exercise his power over his potential victim. See Pettit, Republicanism: A Theory of Freedom and Government.

[9] That said, a number of governments, including the Austrian and German governments, have seriously proposed making it illegal to remain unvaccinated. The Austrian government declared its intention to fine unvaccinated citizens, even though this measure was not finally implemented by them.

[10] See Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge University Press, 2012), 84-87.

[11] According to a meta study by John P A Ioannidis published on 14th October 2020 in the bulletin of the World Health Organisation, the infection fatality rate of SARS-CoV-2  is estimated to be under 0.2% in “most locations.” This IFR is likely to come down over time, as treatments improve and high-risk populations either develop natural immunity or get vaccinated. See John P A Ionnidis, “Infection fatality rate of COVID-19 inferred from seroprevalence data.” Bulletin of the World Health Organization, 99 (‎1)‎, 19 – 33F. World Health Organization. http://dx.doi.org/10.2471/BLT.20.265892. First published 14/10/2020.

[12] This is data published by the UK’s Office of National Statistics website in response to an information request, concerning average age of Covid deaths in England and Wales between week ending 9th October 2020 and week ending 1 January 2021. See https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/adhocs/12773averageageofdeathmedianandmeanofpersonswhosedeathwasduetocovid19orinvolvedcovid19bysexdeathsregisteredinweekending9october2020toweekending1january2021englandandwales (accessed 28th March 2022).

[13] According to the U.S. National Center for Health Statistics (a division of the Centre for Disease Control), 94% of all Covid deaths reported in the USA were accompanied by comorbidities; 80% of reported Covid deaths in the USA have been in people over 65 years of age, compared with 17% in people between 45-64, and 2.6% in people under 45; (https://www.cdc.gov/nchs/covid19/mortality-overview.htm). Another study published on the CDC website found that 94.9% of persons hospitalized with Covid-19 among a cohort of 4,899,447 adults, had at least one underlying health condition, the most common being essential hypertension (50.4%), disorders of lipid metabolism (49.4%), and obesity (33.0%).

[14] This information can be found on the Covid vaccine tracker website of the European Centre for Disease Control: https://vaccinetracker.ecdc.europa.eu/public/extensions/COVID-19/vaccine-tracker.html#age-group-tab

[15] See, for example, Zarachy J. Madewell et al, “Household Transmission of SARS-CoV-2: A Systematic Review and Meta-analysis,” JAME Network Open 2020;3(12):e2031756. doi:10.1001/jamanetworkopen.2020.31756.

[16] Israel, one of the most vaccinated and vaccine-screened countries in the world, with its so-called “Green Pass” operative for the greater part of 2021, saw significant surges in Covid cases, hospitalisations and deaths in late 2021. Though this is not definitive proof that vaccine passports are ineffective at reducing the spread of disease, it does suggest they may be much less effective than governments originally assumed.

[17] It is notable, for example, that the risk of death from Covid-19 is estimated by the US Center for Disease Control at 65 times higher for the 65-74 year bracket than the 18-29 year bracket, while the corresponding risk of hospitalization is five times higher for the older age bracket. See https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-age.html. In populations with high rates of obesity, such as the United States, risks from Covid-19 are proportionately higher, including in young people suffering from obesity.

[18] This follows the general principle of “focused protection” that has been advocated, in the context of a critique of society-wide lockdowns, in the Great Barrington Declaration, signed by over 15,000 medical and public health scientists, and co-authored by three epidemiologists from Oxford, Harvard, and Stanford Universities: https://gbdeclaration.org/

[19] According to a World Health Organisation “scientific brief” on Covid-19 natural immunity (10 May 2021), “Four large studies from the United Kingdom, the United States of America and Denmark estimated that infection with SARS-CoV-2 provided 80-90% protection from reinfection up to 7 months, and up to 94% protection against symptomatic disease.” See https://apps.who.int/iris/handle/10665/341241. The papers cited are listed in footnotes 22-25 of the brief.

[20] One Swedish study suggests that after about 6 months, there is no statistically significant difference between rates of severe Covid disease among vaccinated and unvaccinated persons: Peter Nordström, Marcel Ballin and Anna Nordström, “Effectiveness of Covid-19 Vaccination Against Risk of Symptomatic Infection, Hospitalisation, and Death up to 9 Months: A Swedish Total-Population Cohort Study.” The Lancet, February 4th 2022, DOI https://doi.org/10.1016/S0140-6736(22)00089-7

[21] This was true when Delta was the dominant strain of SARS-CoV-2, in late 2021. It is even more obviously true as the virus becomes much milder and more endemic, with the overwhelming predominance of the milder Omicron variant in December 2021 and the early months of 2022. 

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