The Libertarian Argument Is the Best Argument Against Immunity Passports. But is it good enough?

Written by Julian Savulescu and Alberto Giubilini

The government has reportedly flirted with the introduction of vaccination passports that would afford greater freedoms to people who have been vaccinated for COVID-19. However, the UK’s Minister for the Cabinet Office, Michael Gove, recently announced that vaccination passports are not currently under consideration in the UK. However, the issue may linger and businesses may introduce such requirements.

One of us (JS) defended immunity passports in the context of affording people with natural immunity greater freedom during lockdown, if immunity significantly reduces the risk of infecting others.

Vaccination passports–after vaccines have been made available–can be seen as a mild form of ‘mandatory vaccination’.  Proof of vaccination could be a requirement to, for example, access certain places (e.g. restaurants, hospitals, public transport, etc, depending on how restrictive we want the mandate to be) or engaging in certain social activities (e.g. mixing with people from different households) or enable health care or other care workers to not self-isolate if in contact with a person with COVID (there were 35 000 NHS workers in isolation at the peak of the pandemic because of contact). It is worth noting that this kind of measure has already been in place globally for a long time in a more selective way, e.g. in the US where, in most states, children cannot be enrolled in schools unless they are up to date with certain vaccinations. These are also a form of “vaccination passports”, which simply do not use that term. Yellow Fever Vaccination Certificates are required to travel to certain parts of the world where Yellow Fever is endemic.

The ethical ground for restriction of liberty is a person represents a threat of harm to others. That is, the grounds for lockdown, quarantine, isolation or mandating vaccination is to reduce the risk one person poses to another. However, if a person is no longer a threat to others, the justification for coercion evaporates. If either natural immunity or a vaccine prevents virus transmission to others (and this remains to be determined), the grounds for restricting liberty disappear. This is one argument for an immunity or vaccination passport – it proves you are not a threat to others.

Moreover, if we thought there were sufficient grounds for the drastic and long lasting restrictions of individual liberties entailed by lockdowns and isolation requirements, it is at least legitimate to ask whether there are also sufficient grounds for vaccination passports, given that the individual cost imposed – getting vaccinated – is likely to be much smaller than the cost entailed by those other measures (unless the risks of vaccines are significant).

However, the more effective a vaccine is, the greater the opportunity for individuals to protect themselves. A Libertarian could then argue that the risk of harming others is nullified. If you want to protect yourself, you can vaccinate yourself. If this is true, then a vaccine doesn’t need to give us herd immunity. We can take individual responsibility.

Many objections can be raised against vaccination passports. For example, it is not clear to what extent vaccines will reduce transmission. However, this is something which can be addressed by science: we can work out whether natural or vaccine immunity prevents transmission by empirical work, such as employing challenge studies or other experimental designs. If it turns out that immunity is a short-lived phenomenon, then, assuming large enough availability and easy enough access to the vaccine, passports could simply be renewed with a new vaccination, in the same way as we periodically renew normal passports in order to be allowed to travel in certain countries.

Others would argue that this is the step towards an authoritarian regime which restricts liberty. However, liberty is already extraordinarily infringed by lockdown and it is hard to see how immunity passports could be worse in this respect. Indeed, it could also be argued that vaccination passports would actually increase people’s liberties: if the baseline is lockdown, having the option to leave increases options (of course, this assumes lockdowns are valid).

An analogy one of us (JS) has given in the media is with smoking in the workplace. This freedom can legitimately be restricted to ensure workplace safety and to prevent harm to others by passive smoking. Going to work unvaccinated, JS argued, is like smoking in the workplace.

But actually, there is a major disanalogy here. There is nothing you can reasonably do to protect yourself if you are non-smoker from passive smoking in the workplace. You have to breathe the air. But there is something that you can do to protect yourself from COVID-19: get vaccinated yourself.

Thus, the strongest argument against vaccination passports is that there is something people can choose to do to lower their own risk: get vaccinated. This is what makes the strongest case against vaccination passports stronger than the strongest case against immunity passports (which could be obtained after immunity is mounted through natural infection):  the choice to reduce their personal risk by vaccination is more reasonable and safer than the choice to get voluntarily infected in order to acquire immunity.

So the argument that, for example, airlines like Qantas need to protect their staff and other passengers by requiring everyone to be vaccinated – and to prove it through vaccination passports – is flawed. Staff and passengers who are concerned about infection can choose to be vaccinated and protect themselves. It doesn’t require others to be vaccinated, or so the libertarian would reply.

This stance of course assumes vaccines are highly effective. We are told that some of them might be more than 90% effective – although these are only preliminary, not peer-reviewed data. Paradoxically, the less effective they are, the weaker the libertarian objection becomes because the less people can reliably protect themselves. When effectiveness is low, we need more people vaccinated to maximize the chances of achieving herd immunity

Importantly, there will be people who can’t be vaccinated for medical reasons – they require herd immunity. The libertarian’s response could be that they can protect themselves through social isolation. And given that this will be relatively rare, then the argument might be that it is a reasonable cost to pay rather, compared to infringing upon the liberty of a whole society by requiring vaccination passports to enjoy certain freedoms.

However, we need to consider not only how rare these cases are, but also the size of the costs involved. It seems reasonable to require the majority to pay a small cost (e.g. to be vaccinated, assuming the vaccine is very low risk) in order to prevent a very large cost (e.g. self-isolation) to a minority. After all, many policies are structured in this way.  For example, we have parking spots allocated to people with disabilities and which are typically less likely to be occupied, and placed in more convenient locations. The majority of people pay a small cost – having to park further away or spending more time looking for a spot to park – in order to prevent a large cost to people with disabilities who might have significant difficulties if they had to park further away.

The best response to the libertarian argument may be that it is important to protect those in whom vaccination is not effective, those whose immunity wanes and those who can’t get vaccinated for medical reasons. If we really value liberty, the liberty of these persons to enjoy as normal a life as possible without unnecessary risks weighs in favour of introducing vaccination passports.

However, in the end, as with most practical ethics we must weigh competing reasons: liberty, well-being, for the worst off vs the wider population. Hopefully the vaccines will be effective, safe and in sufficient supply and sufficiently attractive to enough people to achieve herd immunity quickly – then people can make their own decisions…

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14 Responses to The Libertarian Argument Is the Best Argument Against Immunity Passports. But is it good enough?

  • Amy Scanlon says:

    One thing to notice: The Supreme Court of the United States came to a rather similar set of conclusions in 1905, and in fact was willing to go a bit further than just immunity passports.

    The case is known as Jacobson vs. Massachusetts, and at the time the Commonwealth of Massachusetts permitted and encouraged city governments to fine anyone over 21 years of age who refused to get a smallpox vaccine-which were free. Jacobson was a Swedish born US citizen and Pastor who brought the case to the Supreme Court.

    They concluded that it was Constitutional for state governments to mandate vaccines in appropriate circumstances. If the risk of declining a vaccine falls solely on you, you have a right to make that choice, but otherwise state government can mandate vaccines and/or permit local governments to do so. The decided that vaccines may be more dangerous for some people than most others, so any mandates had to come with medical exemptions. However, religious and philosophical exemptions were strictly elective and up to the state government, as long as the mandate didn’t single out any religious or other group.

    The decision even allowed for some individuals to be physically forced to get a vaccination in a serious enough emergency where efforts at educating the public about the vaccine(s) and “softer” enforcement mechanisms weren’t effective enough or if things were simply too urgent to wait for them to take effect.

    The argument delivered by the Chief Justice at the time could be modified to fit other Democratic societies. It states that things such as Freedom of Assembly and Movement along with just the ability of people to go about their lives and business in relative should win over most non-medical objections to a vaccine.

    So sure you can go further than vaccine passports when it comes to a pro-liberty case for making vaccination a requirement rather than a personal (or parent/guardian) choice.

    Far from some arcane old fact, compulsory vaccination exists for schoolchildren if nobody else in all US states. However the polarized politics around the issue have gotten pretty bad, and will likely be a nightmare for Biden.

    • Alberto Giubilini says:

      Thank you Amy. That is indeed a crucial ethical point, and I wasn’t aware that it has such legal backing. Personally, I totally agree on the point that if we value liberty, then we should mandate vaccination precisely to protect the liberty of the most vulnerable to have as normal a life as possible. It is hard to see how a prima facie right to refuse vaccination would trump this liberty.

      • Amy Scanlon says:

        I would suggest that even with people who have gotten the vaccine that their right to enjoy the relative safety of herd immunity in public places outweighs most non-medical reasons for vaccine refusal albeit to a lesser extent than the medically vulnerable. The vaccine is not 100% effective.

        I believe that on top of relatively strict vaccine mandates that society should seek a wider variety of methods to control Covid-19, emerging diseases, and likely future pandemics without placing such extreme restrictions on the lives of citizens.

        For those who can’t get the vaccine, are at risk for a sub-optimal vaccine response or who are simply have such strong medical and/or situational/occupational risk factors that the 5% vaccine failure rate is more serious than for most of us, concepts such as synthetic antibodies and prophylactic antivirals are being explored.

        For the general population there are a number of groups trying to create a prophylactic nasal spray using a variety of approaches. The nasal sprays last anywhere from a few hours to six months, and range from food grade ingredients to gene therapy. In most cases these sprays are conceived as a bridge and/or add-on to a vaccine rather than full replacement. In most cases the researchers hope to create something that both provides some protection against the virus for an uninfected user and reduces viral shedding in asymptomatic or presymptomatic infected ones. Simple sprays that last 12hrs to 1 week, wouldn’t be enforceable in the ways vaccines and masks are, but there could be aggressive educational campaigns to encourage regular use of the nasal sprays even in people who are vaccinated and living in a community with near-herd immunity. If a large portion of the population can be encouraged to use the spray routinely, that add another layer of protection on top of vaccine mandates.

        Then there are clever ideas in mass testing. Texas A&M is working on an artificial intelligence operated, self-disinfecting, self-cleaning kiosk that can provide a no-touch “breathalyzer” test for a distinct chemical signature that suggests you are fighting off a Covid-19 infection. The user just blows through a plastic straw that doesn’t even tough the machine, and the results can be sent to an iPhone.

        They are suggesting placing such kiosks in a variety of public places so people can get screened much more regularly than is currently possible.

        To me such procedures would also mean we could more easily return to a normal life!!!

  • Julian Savulescu says:

    Thank you for this fascinating and helpful comment

  • non-libertarian says:

    Weird post in that the “libertarian” view is never clarified or ascribed to anyone. Does this imagined libertarian accept taxation? Or any of the myriad of laws and regulations that seem to transgress e.g. nozickian minimal state principles? If yes then I guess whatever convinced the libertarian in those cases should convince them also in this case. If no then none of the proposed arguments seem at all effective.

    “But actually, there is a major disanalogy here. There is nothing you can reasonably do to protect yourself if you are non-smoker from passive smoking in the workplace. You have to breathe the air. But there is something that you can do to protect yourself from COVID-19: get vaccinated yourself.”

    Isn’t the standard libertarian line that it is up to the owners of the workplace (employers) to set any rules they fancy – no smoking allowed, smoking allowed, smoking mandatory, whatever – and then the worker has the liberty to contract their work there or not?

    Point: from the libertarian POV the worker can do something to protect themselves also on this side of the analogy, namely choose to not work there.

    Of course a deep flaw with libertarianism is its ignorance of (parijsian) real freedom which makes the “just quit if you don’t like it” line so weak. But that flaw is on both sides of the analogy, so not an objection to the analogy. I.e. libertarians could, being their usual selves, just say “just don’t go out in public”.

    “However, we need to consider not only how rare these cases are, but also the size of the costs involved. It seems reasonable to require the majority to pay a small cost (e.g. to be vaccinated, assuming the vaccine is very low risk) in order to prevent a very large cost (e.g. self-isolation) to a minority.”

    From here on out you don’t even try to connect back to the imagined libertarian. It is unclear how any of this would relate to their principles.

    • Alberto Giubilini says:

      Thanks. Your analogy with taxation is very interesting, but I don’t think it undermines the point of this blogpost: the fact that certain arguments can be transferred from one domain (e.g. vaccination) to another (e.g. taxation) does not mean that discussing them in the first domain is irrelevant, which is what your post seems to imply. Actually, you could reverse your point and argue that the considerations we make about vaccination could be used to address the libertarian issues on taxation (which would require discussing relevant differences and analogies between vaccination and taxation, of course).

      I would say the same about your second point on employers setting rules and workers being free to decide whether to take up jobs there. It applies to smoking and to vaccination as well (indeed, one way to implement vaccination passports could be to allow employers to discriminate on the basis of possession of such passports without making passports mandatory in other domains – which would need an independent ethical discussion)

      You make a point about libertarians’ ignorance of real freedom. That would require quite a lot of philosophical discussion, but we do point out that if we do value liberty, then the liberty of the vulnerable to safely resume something like a normal life (to the highest degree possible) is likely to outweigh the liberty not to vaccinate, at least in certain circumstances (e..g there is no herd immunity)

      • non-libertarian says:

        Hi Alberto.

        “the fact that certain arguments can be transferred from one domain (e.g. vaccination) to another (e.g. taxation) does not mean that discussing them in the first domain is irrelevant, which is what your post seems to imply.”

        That was not my point. I’ll try to restate it.

        1. you never specify the libertarian position you want to critique. Here are two possible specifications.

        2. If we specify it along nozickian lines then obviously someone already holding that view will not be persuaded by your arguments, since they don’t share your sense of what’s reasonable. After all, if they consider the minimal state reasonable, find nearly all taxation and redistribution unreasonable, find public health care for the most needy unreasonable and so on then they will not suddenly have reasonableness-intuitions that deviates from that pattern in the case of vaccination passports.

        3. If we instead specify it along some other lines, so that the imagined libertarian accepts most of the non-minimal state stuff already in place today then it seems obvious that they’d have no ground to stand on to launch a principled liberty complaint against vaccination passports. Since that is small potatoes, as far as liberty restrictions go, compared to all the other stuff they, we assumed, already has found reasons to accept.

        4. Thus, your argument is either unpersuasive or redundant.

        5. If you had specified some principled libertarianism position midway between the above two poles then interesting argument might unravel that might sway someone actually holding such a view. But you didn’t.

        The other point I wanted to make was that your “major disanalogy” claim (“You have to breathe the air”) was incorrect, since from a libertarian POV the person is at liberty to not go to that workplace, thus do not “have to” breath the workplace air.

        “we do point out that if we do value liberty, then the liberty of the vulnerable to safely resume something like a normal life (to the highest degree possible) is likely to outweigh the liberty not to vaccinate, at least in certain circumstances (e..g there is no herd immunity)”

        Again, is that “likely to outweigh” claim meant to convince the libertarian interlocutor you pitch the text to? If yes then I think it is also unpersuasive or redundant, like in 1-5 above.

  • George James Dance says:

    I don’t understand why you keep switching between the terms ‘immunity passports’ and ‘vaccination passports’. The first wording implies that the millions who’ve recovered from COVID would be eligible for passports; the second, that they would not.

  • Julian Savulescu says:

    George, yes, that is precisely the point. The way vaccination passports have been proposed, they would not cover people with natural immunity. This in my view is wrong – we should aim at immunity passports, if we use them at all. There is no moral difference beween natural and vaccine mediated immunity.

    Non-libertarian, you are right in your distinction, which we might call hard and soft libertarianism. I had in mind soft libertarians who give some weight to liberty but not overriding weight. Examples would be some Conservatives in the UK. They obviously accept taxation, etc. I don’t see the argument is redundant because there is a debate about how much weight to give to liberty at the moment.
    And this is a blog post, not an academic paper.

    • Amy Scanlon says:

      There may be good reasons to have only vaccine passports and not immunity passports. For one thing we don’t know how long the immunity to Covid-19 lasts, and despite all the questions about vaccines, they have the potential to produce more uniform results. In fact, Dr. Anthony Fauci (Director of the US National Institute of Health) has recommended that even people who believe or know they have already contracted Covid-19 get the vaccine anyway: That it’s not in their interest to risk getting it again. Also tests for having contracted past Covid-19 may have a high rate of false positives.

      Secondly treating an immunity passport based on contracting the disease “equal” to a vaccine passport may encourage irresponsible behavior. What about people who might not be able to get the vaccine right way? Should people in those groups who wore masks and took the available precaution have to go on tolerating such limits on their freedoms while their friends who got the virus taking foolish risks are now free to see movies and go to restaurants as a reward for this behavior? Could such policies encourage people who are sick of this decide to catch the virus on purpose (or try to) to get their lives back?

      Of course, not everyone who caught this virus did so because they did everything wrong. However, people who have high risk jobs, group living arrangements, and other situations beyond their control are likely to be “closer to the front of the line” for the vaccine anyway in most countries. (They sure are in the CDC’s recommended priority.) The point on encouraging irresponsible behavior mostly pertains to those who are going to be asked to wait longer for their vaccines.

      Even once vaccine is readily available to everyone, there could still be people who decide to get immunity passports when they catch it rather than get vaccinated either out of vaccine hesitancy or sheer bullheadedness. Half the point of vaccine passports is to protect certain public spaces as safe, but the other equally important half is to incentivize vaccination and herd immunity.

      • Alberto Giubilini says:

        thanks. This all sounds very sensible to me.
        Whether immunity passports would create perverse incentives to get infected is an empirical issue , I think Julian discussed it in some of his co-authored papers on immunity passports. But even assuming that would be the case, in theory a young person could relatively safely seek infection and then self-isolate to avoid infecting others in order to acquire immunity (either out of self interest or to contribute to building up herd immunity while vaccine availability is limited. I have discussed this option here: https://www.tandfonline.com/doi/full/10.1080/15265161.2020.1795543). The problem arises if people who are in more vulnerable groups start seeking infection in that way. That would be very problematic indeed.
        Vaccination-only passports would completely remove this problem.

        • Amy Scanlon says:

          I would argue that the premise of trying to catch Covid-19 to get personal immunity or contribute to herd immunity is problematic.

          There is no demographic where seeking to contract Covid-19 naturally is as safe as getting the vaccine. Even young people have indeed ended up on ventilators. Studies of college athletes and semi-professional baseball have found myocarditis in a surprisingly large minority (15%) of those who tested positive for Covid-19 antibodies with mild or no symptoms. A small but worrying minority of children who got infected developed the dangerous “multi-system inflammatory syndrome”. Most of the people who developed the “long Covid-19”, are relatively young-one case in the news involved a 12 year old girl.

          Plus there is still much we don’t know about the virus. Since it’s new and data is limited, to declare anyone truly “low risk” is at best a bit of hubris. True we know whose most likely to end up on a ventilator and die, but that’s not the whole story. There could be long term effects we won’t know about for years.

          Secondly our young adult who tries to get Covid-19 for immunity passport can put others in danger in other ways. If he does end up in an overcrowded hospital ward, that could harm others if resources like antibodies, drugs, ventilators or even more attention from nurses and doctors are scarce. He could also try to get Covid-19 and in believing he failed in that question carry on not know he’s an asymptomatic spreaders. If he does get mild Covid-19 he might infect somebody else via any number of minor mistakes while trying to self-isolate-Not feeling well tends not to enhance most people’s good judgment. Also in some cases the low risk person could also decide his or her child is a low-risk person and end up making that decision for a minor who cannot consent or refuse.

          In theory whether people would do these things could be an empiric issue. However, given the politics of vaccine hesitancy in some countries, I’d rather not take that chance. Even empiric questions can be hard to answer in the real world.

          Since vaccine mandates are likely to be a polarizing issue in many countries, also giving passports to those with natural infection could further add to toxic political dynamics and hurt vaccine campaigns.

          Then there’s the practical side. There are already images of a provisional design for the “Vaccine Cards” the CDC is planning to issue to Americans on getting vaccinated. If you look at the cards it lists the date and type of each dose of vaccine received.

          Whatever the exact rules (likely to vary by state), it’s likely a wide variety of workers will be asked to check both vaccine and medical exemption cards. I don’t see many interested parties as eager to complicate this with a third type of card indicating naturally acquired immunity.

    • non-libertarian says:

      ” I had in mind soft libertarians who give some weight to liberty but not overriding weight. Examples would be some Conservatives in the UK.”

      If they exist then they can be named. What are their arguments for holding that view? Where do they draw lines with regards to liberty restrictions in other cases and for what reasons? Without answering at least that your blog post is of no use I’d say.

    • George James Dance says:

      Thank you for the explanation. I agree with that; vaccination passports are discriminatory, and they’d be less discriminatory if proof of immunity (whether by medical history or antibody test ) were also accepted. Since a libertarian wants to reduce discrimination, he (I) would have to agree. I’d also like to see the same option for people putting their children into schools. Of course, that could get messy in practice, since it would be several diseases for which proof would be needed; but the principle is clear enough.

      PS – I apologize for the duplicate post, posted as a reply to the wrong message. Feel free to delete the other.)

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