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The paradox at the heart of the vaccine mandate debate

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Many people believe that the existence of strong and effective vaccines against COVID-19 implies that governments have the right to issue vaccine mandates. Under a mandate, residents must be vaccinated before they are allowed to enter places of work, schools or businesses. 

This view has it exactly backwards. Paradoxically, it is the weakness of the existing COVID-19 vaccines and vaccine delivery system that justify vaccine mandates. Weak vaccines require strong laws. 

The question of what governments or employers are authorized to do is first and foremost a question of political philosophy. Within political philosophy, deciding not to take a vaccine is a classic example of a decision whose consequences are not purely private. 

Suppose that “Robert” (named in honor of the late, libertarian political philosopher Robert Nozick) chooses not to be vaccinated against COVID-19. By remaining unvaccinated, Robert is more likely to spread COVID-19 to other persons. In the language of economics, Robert’s decision imposes a negative externality on others. Therefore, a government has the right to regulate Robert’s otherwise private decision to remain unvaccinated, just as it has the right to limit pollution. Robert’s liberty interest in remaining unvaccinated is overridden by the public benefit in widespread vaccination. 

Many proponents of vaccine mandates end their analysis here, but they shouldn’t because Robert has a response. Suppose that COVID-19 affects only adults, that a vaccine is freely available to all residents and that all residents are fully informed with respect to the vaccine’s effects. Suppose further that the vaccine is perfectly effective against COVID-19. Finally, suppose that everyone pays for their own health care and that persons who contract COVID-19 don’t impose a cost on the health care system through congestion.

If all these conditions are satisfied, or even just more or less true, then the philosophical case for a vaccine mandate is quite weak. Yes, Robert’s decision to remain unvaccinated increases the risk that others will contract COVID-19. But anyone can choose to eliminate that risk by getting vaccinated. Therefore, society is not justified in violating Robert’s personal liberty by mandating that, in order to participate in civic life, he take a vaccine that he would rather avoid.

Robert would further argue that it is everyone’s personal responsibility to protect themselves against COVID-19 – for example, by taking the vaccine if they wish to – so a failure to exercise that responsibility is not a legitimate reason to infringe on his liberty. 

From the standpoint of liberal (in the classical, English sense) political philosophy, Robert’s argument is powerful on its own terms. But each of Robert’s assumptions are empirically flawed. And because they are flawed, a liberal society in fact has a strong interest in implementing vaccine mandates.   

First, COVID-19 affects children, and a vaccine has not yet been developed for all children. Moreover, even if an effective vaccine for children were widely available, a child who is unvaccinated is not responsible for that decision. 

Second, society may also believe that communities that have faced historical discrimination and are distrustful of the health care system do not bear full responsibility for their decisions not to get vaccinated and deserve some protection from that decision through vaccine mandates. 

Third, vaccines are widely available in the United States, but certain people such as the homeless and the undocumented may still have a difficult time obtaining access. Moreover, vaccines are not widely available in other parts of the world, and COVID-19 does not respect borders. 

Fourth, existing vaccines are not perfectly effective against COVID-19. For example, even if vaccines reduce the likelihood of hospitalization by close to 90 percent, 10 percent of the total number of hospitalizations to date is still a big number. 

Finally, in our health care system, society bears some of the cost of care and thus has a right to regulate individual health decisions that impose a high cost on the system as a whole.  

Therefore, in the real world, Robert’s decision to remain unvaccinated imposes costs, at a minimum, on children, disadvantaged communities, people in poorer countries, already-vaccinated individuals and funders and patients of the health care system. Moreover, none of these costs can be eliminated under our current constraints.  

In other words, it is the limitations in current vaccine science and existing systems of vaccine delivery that justify incursions into the liberty of others. In a perfect world, liberty should prevail. But ours is not a perfect world, which makes vaccine mandates a legitimate part of a liberal society. 

Prasad Krishnamurthy is professor of law at U.C. Berkeley School of Law, where he teaches and writes in the area of financial regulation and contracts.

Tags COVID-19 vaccine COVID-19 vaccine mandate Medicine Robert Nozick Vaccination Vaccination policy Vaccine Vaccine hesitancy

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