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Could vaccine requirements for entering pubs be wrong, while closing pubs altogether is OK?

By Tom Douglas

Suppose that, before you could enter a pub, you had to produce a ‘vaccine passport’ showing that you had been vaccinated against the new coronavirus. 

Vaccine requirements like this are controversial. In the UK, the government has been keen to deny that it is even considering their use. This is in some ways puzzling, for closing pubs altogether has not been that controversial, and preventing people from entering pubs without exception seems, at first sight, to be a greater imposition on liberty than preventing people from entering pubs without first being vaccinated. As my colleagues Julian Savulescu and Alberto Giubilini recently noted, it seems better, in terms of liberty, to have some choice than none. 

This raises the question, could a vaccination requirement for entering pubs be wrong, while closing pubs altogether is not?

Here’s one argument for a ‘yes’ answer. Suppose that some people cannot—or cannot at reasonable cost to themselves—be vaccinated. Perhaps they have medical conditions that would make vaccination dangerous. Or perhaps they simply haven’t yet been prioritised for access to a vaccine. A vaccination requirement would result in these people facing more stringent constraints on their freedom of movement than others, and through no fault of their own. This might seem unfair. However, this problem could be avoided by introducing the vaccination requirement only once vaccines are widely available, and by exempting those for whom vaccination would be dangerous. 

Perhaps a more robust argument would appeal to bodily integrity. Vaccinating a person without their consent is a form of nonconsensual bodily interference and plausibly infringes a person’s right against such interference—what is sometimes called the right to bodily integrity. When a person consents to vaccination, she partially waives that right, so that the vaccination no longer infringes it. But there are some cases in which consent fails to waive the right—where the apparent consent is not valid consent. If someone says to you ‘submit to my vaccination or I’ll publish your entire medical history on the internet’, and you say ‘please vaccinate me’, it is doubtful that you have waived your right to bodily integrity, though in some sense you have consented to bodily interference. One reason for this, I think, is that publishing your medical history would itself, if done without consent, infringe your rights. Thus, in saying ‘please vaccinate me’, what you are saying may be not ‘I waive my right to bodily integrity’ but just ‘if you’re going to infringe my right to bodily integrity or my right to medical privacy, I prefer that you infringe my right to medical privacy, but I’d really rather you didn’t do either’. Perhaps someone could argue that imposing a vaccine requirement is like this case, since the government is effectively offering the choice between two rights infringements: of the right to bodily integrity, or of the right to freedom of movement.  

But even if this is the case, it’s hard to see how the vaccination requirement could be wrong if an absolute ban on entering pubs is OK. Our initial question now recurs in a different form. How could it be wrong to offer someone the choice between two options—each of which would infringe a right—when it would be permissible to just infringe one of the rights—the right to freedom of movement—without giving any choice? 

A final argument would appeal to a distinction between different kinds of liberties. Suppose that the freedom to avoid vaccination is objectively more important than the freedom to enter pubs, so that the government should take special care to preserve the former. Relative to closing pubs altogether, a vaccination requirement for entering pubs gives at least some people (those who can be vaccinated) greater freedom to enter pubs. But perhaps it reduces the freedom of some to avoid vaccination. Suppose that you are under intense social pressure to go to the pub with your workmates. Under a vaccination requirement policy, you will thus feel intense pressure to have yourself vaccinated. This pressure plausibly diminishes your freedom to avoid vaccination. And if the freedom not to vaccinate is more important than the freedom to go to the pub, it might be wrong for the government to expose you to this pressure, even if this gives you—and others—greater freedoms with respect to pub-going.

Of course, in reality, any vaccination requirement policy will not apply only to pub-going. It will apply to a broad range of ‘risky’ activities. For example we might also have to produce vaccine passports before entering shops and restaurants; before boarding busses, trains or planes; before visiting relatives in hospitals or rest homes; and before joining social gatherings involving members of more than two households. In this scenario, there is a much more important freedom at stake than the freedom to enter pubs; in effect, what is at stake is the freedom not to be ‘locked down’, where that involves a very extensive set of restrictions on movement and association. Is the freedom not to vaccinate more important than the freedom not to be locked down? This is not so clear. Lockdown involves very severe limits on freedom of movement and association, it is very disruptive of our personal relationships, and it can have devastating effects on mental health. I would argue that lockdown is likely to be both more harmful and more of an affront to personal liberties than creating some pressure to vaccinate.

If this is right, it suggests that, if it would be morally OK to lock people down, it would also be OK to require them to vaccinate in order to avoid the lockdown restrictions. Though this might restrict our freedom not to vaccinate—by creating pressure to vaccinate—it also confers an equally or more important freedom: the freedom to avoid lockdown.  

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4 Comment on this post

  1. I’m not sure how comparable lockdown and vaccination are, not because of the difference in how they affect your rights, but because an available vaccination changes the situation. Rights are usually allowed to be overridden if there is a proportionate reason to do so.

    Lockdown is not applied to prevent death from an infectious disease necessarily. For example, we keep pubs (etc) open during the flu season each year even though some people will inevitably die from that disease. The lockdown is applied because it is needed to prevent so many people at once becoming ill that the health system is overwhelmed, or possibly because the number of people has reached a threshold. The lockdown is a huge infringement on rights, but the health system or number of deaths makes it proportionate

    Once vaccination is sufficiently available and taken up to a certain degree, the problem of health system overwhelm or very high numbers of people dying will presumably disappear or radically reduce, especially as in this case, there is a strong correlation with age and other factors with the most severe outcomes and the vaccines appear to be safe and effective in those groups. Therefore, once you have a certain level of vaccination, even much below total coverage, then even if you allowed everyone freedom of movement, the overwhelm that made the lockdown a proportionate response is no longer a threat.

    So even if you are right that the two infringements are similar, I think that the way that vaccination works means that the situation we find ourselves in will be very different, and therefore overriding rights may no longer be proportionate.

  2. I would suggest that there are a number of good reasons to favor Freedom of Movement and Assembly over any guaranteed right to refuse a vaccine. One is simply man’s social nature, and the severe health and social problems caused by lockdown. We are talking about the amount of school some children have missed all over the world and the fact that even students with the best “distance learning” resources are extremely limited in terms of any “hands on” learning, group activities, and such. Students need these to develop what some call “figural intelligence”, resourcefulness, practical skills, problem solving, and creativity.

    Other very serious problems include challenges in dealing with domestic violence and mental health. If continued encouragement of social distancing tips the balance from public transit to private cars that has serious climate implications. More generally you lose out in areas such as Civil Society, political movement building, expressions of community (festivals, parades, religious services etc).

    While the framing of “open the economy” and/or “individual freedom” always struck me as a very narrow way to understand the complex consequences of lockdown, it is true that lockdowns carry very serious economic consequences and damage Civil Society (hence long term prospects for freedom) along with immediate individual freedoms.

    As for the idea of avoiding vaccines as a matter of bodily integity: You are exposed to antigens like the ones in a vaccine very single day, without the biosphere asking for your consent. Also lockdowns may not be as effective at preventing Covid-19 infections as herd immunity, and if that’s the case ending up on a ventilator or with long term complications could affect your bodily integrity quite a bit.

    Finally the freedoms lost to lockdown are many, while “freedom to avoid a vaccine” is nothing more than just that a single freedom to avoid a vaccine.

    As for people who cannot receive the vaccine for medical reasons? One option is to set up a process for them to receive medical exemptions to the requirement. They can receive a medical exemption card. While they might at least temporarily (until herd immunity is achieved and community transmission negligible) they might face some limits such as having to wear masks and/or faceshields when such rules have been relaxed for everyone else, having to sit in special isolated cubicles in some places (provided like toilet stalls and parking for the handicapped) or still being banned from some venues that the vaccinated can enter. However, they can be granted accommodations so they don’t have to live as isolates and shut-ins.

    While these analytical arguments are an impressive thing to read, I’d argue that the freedoms lost by lockdown have almost become a case where the whole is more than the sum of its parts. If I am pressured into a vaccine I don’t want, assuming the vaccine is a low risk procedure, it will likely be an unpleasant experience and I might be quite unhappy about it, but in the end I will probably get over it!!!! People who have lost jobs, who can’t go to the movies or visit friends, who can’t go to church, the children who can’t go to school, and so much more….these have become totalizing realities that people are required to live every hour of every day.

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