ANDREAS KLUTH: The duty of the people to bare arms and take shots
Coercion is necessary sometimes to prevent harm, but what’s permissible isn't necessarily wise
The dilemma is almost as old as vaccines: can the state coerce citizens to get inoculated in the interests of public health? What about other institutions such as schools, universities or employers? And if they can mandate shots, should they?
Even with the more familiar vaccines against smallpox, measles, whooping cough and the like, these questions have never been answered definitively in most countries. That haunts us now that we’re fighting a coronavirus pandemic and need to make urgent decisions.
Most governments, for now, are treading lightly because they fear alienating the very people who need to roll up their sleeves and co-operate. Italy, for example, has mandated Covid vaccines only for health workers, and the UK is considering the same. But some politicians, exasperated about the many vaccine slouches, are contemplating more drastic measures. Rodrigo Duterte, president of the Philippines, has rather hyperbolically threatened that he’ll throw in jail anybody who refuses to get jabbed.
Schools, clubs and employers are facing the same conundrum — and also want to avoid getting sued. In the US, many universities are requiring vaccination for all those who want to return this fall to physical dormitories and classrooms, but will presumably let other students “attend” virtually. On Wall Street, Morgan Stanley is mandating vaccination for employees who want to come back into the office while making all others dial in. Institutions everywhere will sooner or later face the same choices.
As a classical liberal — that is, somebody who treasures individual freedom — I see three intertwined routes into this debate: the moral, the legal and the practical.
The moral case must start with the premise that, barring special circumstances, nobody has a right to tell me what to do, even if it’s “for my own good”, since that’s for me to judge. By this logic, even seat-belt laws are a baby step towards tyranny. I happen to wear one voluntarily because I feel it makes sense. But if I didn’t, what right does anybody have to make me put it on? It’s my life, after all. The same could be said for the risk of catching Covid-19.
This line of thought immediately crashes into the difference between a seat-belt law and a vaccine mandate, however. Saving the life and health of the one getting jabbed is only the secondary purpose of inoculation. The primary goal is to approximate herd immunity, so that the virus stops spreading in the community at large, infecting and potentially killing others who, owing to allergies or other complications, cannot get vaccinated.
So a vaccine mandate is less like a seat-belt law and more like rules against, say, fiddling with a smartphone while driving — a cognitive distraction that vastly increases our risk of causing accidents that maim or kill others. By the same token, my refusal to get jabbed makes me a potential vector for SARS-CoV-2. As it keeps spreading, it’ll also keep mutating, thus causing inestimable harm to people near and far alike.
This “harm principle” was already defined in 1859 by John Stuart Mill in his treatise On Liberty: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”
Viewed thus, public health is another instance of what economists call a commons, a shared resource in which the interests of individuals typically clash with those of society, thus requiring regulation. Classic examples include overgrazing public lands or overfishing the oceans; modern instances include littering space with satellite junk or polluting the atmosphere — and now also free-riding in the global struggle against SARS-CoV-2.
This need to prevent harm to other people as well as the “tragedy of the commons” has shaped the evolution of legal thinking about the dilemma. In the US, the first vaccine mandate was introduced in Massachusetts in the 1850s, to prevent smallpox transmission in schools. That precedent quickly spread to other states and diseases, making opponents drag the mandates into court.
In 1905 the Supreme Court ruled in Jacobsen vs Massachusetts that states may compel vaccination as long as the coercion is proportionate and necessary to maintain public health. In such cases, the judges decided, vaccine mandates fall conceptually into the category of the government’s “police power” which legitimately restrains personal liberty for the common good.
In many iterations, that logic has prevailed in most open societies to date. In April, for example, the European Court of Human Rights in Strasbourg ruled, in a case that preceded the pandemic and was brought by parents in the Czech Republic, that mandatory vaccination is “necessary in a democratic society”.
Both these moral and legal lines of reasoning must of course confront practical realities, and this is where things get tricky in the current pandemic. That’s mainly because the Covid vaccines are still scarce, new and less understood than those against, say, mumps or polio.
The first question is whether a serum is even available easily and amply enough. So far, it isn’t in most countries. I don’t see how you can fairly mandate — on penalty of sanctions — something that not every member of society even has access to.
The next question is how safe the vaccines are. Nothing in this world is ever completely free of risk, but the mandate decision must rest on weighing one risk — the jab’s to the individual — against two others: the risk to the same individual of catching Covid and the collective risk to public health.
For our familiar vaccines, such as the measles, mumps and rubella jab that children get in many countries, that case is easily made. A few of the new Covid vaccines, such as the mRNA shots of BioNTech/Pfizer and Moderna, should also clear the hurdle, though their youth still means that regulators such as the US Food and Drug Administration have so far only given “emergency use authorisation”. Others, such as the AstraZeneca shot, have left people and regulators confused. Others yet, including the shots hawked by Russia and China, are in my opinion simply too opaque about risk to justify coercion.
Beyond the risk of a given vaccine, we also need to know whether it prevents the recipient only from getting sick or also from transmitting the virus. If the answer is the first, remember, we can’t invoke the harm principle or the public good.
There’s also human nature to consider. New research based on surveys in Germany suggests that a vaccine mandate might send psychological signals that actually hinder overall compliance. People resent being manipulated, with either carrots or sticks, an effect known as “control aversion”. Coercion also tends to cause “moral disengagement”, making people who might have got vaccinated for altruistic reasons tune out.
Enforced vaccination also undermines trust between citizens and their institutions, as they wonder why coercion is even necessary and what could be wrong with the jabs. In an age of conspiracy theories, feeding the quackery on the fringes is the last thing we need in fighting the virus.
The complexities of the debate mean that the choices facing policymakers won’t get easier any time soon. Even lovers of freedom, like me, can agree that sometimes coercion is necessary to prevent harm. But what’s permissible needn’t always be wise. Our best shot for now is still to keep rooting for science, to stay ruthlessly transparent with the data, and to hope that people bare their arms because they want to. For my part, I got my jabs as soon as they became available.
Andreas Kluth is a columnist for Bloomberg Opinion. He was previously editor in chief of Handelsblatt Global and a writer for the Economist. He's the author of '“annibal and Me”.
Bloomberg Opinion. More stories like this are available on bloomberg.com/opinion
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