On February 1st a national vaccine mandate took effect in Austria. Those over the age of 18 who have not been vaccinated could face fines up to €3,600. Several other countries have introduced similar mandates for the elderly, medical staff and care home workers. Putting aside the question of whether these mandates are effective, there are concerns around their ethical status. Those resisting vaccination say it should be their choice whether to get the jab, not the state’s. Others argue that in liberal societies, the state has a right to limit the freedom of individuals when their behaviour harms others. Whether vaccine mandates are morally justifiable or not, then, turns on whether the unvaccinated harm the rest of the population. Given how Covid vaccines work, it’s hard to make that case, argues Stephen John.
Would you shoot a loaded gun into the air above a crowd? I assume not.
Should other people be allowed to shoot into the air above crowds? Obviously not.
Are you vaccinated against Covid-19? For your own sake, I hope so: Covid-19 can be fatal, and the risks of vaccination are miniscule.
Should other people be allowed to remain unvaccinated? Now we have a controversial question! Recent Austrian legislation making vaccination mandatory has caused huge protests, and debates rage across Europe.
In an influential article Jessica Flanigan has argued that mandatory vaccination should be no more controversial than laws against shooting in crowded public spaces. We restrict the shooter's liberty because she avoidably imposes significant risks of harm on others. In choosing not to get vaccinated, the argument goes, the anti-vaxxer imposes avoidable risks of harm on others. Therefore, if we can restrict the shooter's liberty, so, too, we can restrict the anti-vaxxer's liberty. That's not to say we must introduce vaccine mandates here-and-now. Maybe they will cause so much resentment that they backfire, or maybe we can achieve mass vaccination more simply. Still, Flanigan’s argument implies there is no in-principle objection to mandates.
Unsurprisingly, philosophers puzzle over this argument: is an omission - not getting vaccinated - equivalent to an action - shooting a gun? Does the argument rule out posing any risk of harm to others? But there is a far simpler concern with Flanigan’s analogy. Flanigan assumes that getting vaccinated significantly reduces the risk we will transmit viruses to others. However, it's not clear Covid-19 vaccinations significantly affect transmission. This makes it very hard to justify mandatory Covid-19 vaccination within liberal societies.
We can only compel vaccination when doing so is a proportional response to the risks of harm you pose to others.
On Liberty and vaccines
To think through these questions, it is useful to go back to the work of John Stuart Mill, the great Nineteenth Century theorist of liberty. Mill wrote:
"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."
This "harm principle" distinguishes two kinds of restrictions on individual liberty: those intended to prevent an individual causing harm to herself, and those intended to prevent an individual causing harm to others. Mill opposes the first kind, arguing that each should be allowed to undertake "experiments in living". However, self-experimentation shouldn't harm others, justifying some restrictions.
Mill's arguments have been hugely influential in the theory and practice of freedom of thought and expression. His approach can also guide public health policy. People make all sorts of choices which are predictably bad for their health. Plausibly, a decent State should try to educate people about, and enable, healthy choices. Still, there is a limit to State action: if a fully grown-adult, aware of the facts, really wants to eat a Big Mac, we should leave her to it. However, there are cases where the State does restrict our choices: under recent "lockdown" policies you couldn't go out to get a Big Mac. Mill's arguments justify this difference. In the first case, the justification for the intervention would be to prevent you causing harm to yourself, but, in the second, the restriction aims at preventing harm to others.
This liberal framework provides the basis for Flanigan's argument. Typically, we tell people they ought to get vaccinated because this is good for them (or their children): although vaccination risks side-effects, it reduces the even greater risks of disease. Viewed this way, getting vaccinated is like choosing kale salad: something the State can encourage you, but not force you, to do. However, vaccinations typically have indirect effects on the rest of the community. If you are vaccinated against measles, not only are you protected, but you cannot pass the virus to others. So, we arrive at Flanigan's claim that the unvaccinated harm others, implying that even the staunchest liberal should be willing to countenance vaccine mandates.
Vaccinations typically have indirect effects on the rest of the community. If you are vaccinated against measles, not only are you protected, but you cannot pass the virus to others.
Vaccines and vaccines
Unfortunately, not all vaccines prevent transmission, at least to the same degree. Consider Covid-19 vaccines. These vaccines were developed at great speed, with clinical trials focused on whether they prevent symptoms rather than transmission. This lack of information is why the UK's Joint Committee on Vaccination and Immunisation chose a strategy of first vaccinating those "most at risk" from Covid-19 over a strategy aimed at controlling transmission, despite theoretical reasons to think the latter approach might reduce overall mortality.
Over time, the JCVI has been vindicated, as it has become clear that the effects of Covid-19 vaccinations on transmission are limited. For example, a recent UK study found that the rate of household transmission among vaccinated individuals was almost identical to rates between unvaccinated individuals, and an Israeli study showed that vaccinated health care workers could transmit the virus to vulnerable patients. A third study found that, while fully vaccinated people who become infected were less likely to pass the virus to close contacts than the unvaccinated, that protective effect was relatively small, and dwindled alarmingly three months after receiving the second shot.
This is not to say vaccines don't work. They work as tools for mitigating the symptoms of Covid-19, turning a potentially life-threatening illness into something closer to a common cold. Furthermore, getting vaccinated does lower the risk we pose to others: the vaccinated are less likely to get infected and to transmit the virus to others. However, unlike, say, measles vaccines, Covid-19 vaccines are not magic bullets. They modulate, rather than, eliminate the risk of harm we pose to others. As such, it is unclear that mandating vaccination would be a proportionate response to the risks the unvaccinated pose to others.
Ironically, perhaps, what these complications show is that the unvaccinated continue to have good reasons centred on their own health to get vaccinated even if nearly everyone else is vaccinated. Mandating Covid-19 vaccination seems more like mandating kale salad than banning random shooting.
Mandating Covid-19 vaccination seems more like mandating kale salad than banning random shooting.
A way out?
One pro-mandate response would be to reject the entire liberal framework, and say that the State is justified in making people do things which are good for them. While tempting when confronted with some of the more outlandish anti-vaxxers, this argument risks a worrying health totalitarianism, with every calorie counted by the Weightwatcher General. However, there is a second, intriguing route to justifying mandatory vaccination consistent with the liberal framework.
By choosing not to vaccinate, anti-vaxxers are far more likely to end up needing medical care than if they were vaccinated. Plausibly, this is bad for the vaccinated by making it less likely they will receive care when necessary, and more generally, through higher taxation to cover the medical costs. So, we might say, the unvaccinated do harm the vaccinated, albeit indirectly.
Can the liberal use this claim to justify mandatory vaccination?
One obvious worry here is that the appeal to “indirect” harms threatens to generalise to all sorts of other cases where our actions pose a risk of needing medical services – say, decisions to eat fatty foods – potentially justifying a huge incursion of the State into private choices.
Still, you might think such intrusions are justified. A more principled worry points to a problem with the relevant notion of harm.
Some cases of “harm” are relatively straightforward: for example, shooting a gun which kills someone or transmitting a nasty virus clearly count as harming someone. Other cases, are, however, more complex. Imagine a case where I tell you that if you carry on gambling, I will pay any resulting debts. You then lose all your money and I end up paying your debts. In some sense, your act of gambling ends up harming me, as I lose money. Still, it would seem very odd to say that the State should have stopped you gambling because of the risk of harm you posed to me. After all, the harm I suffer is down to my actions and choices, as well as yours.
If we are suspicious of appealing to the “harm principle” in the gambling case, then, so, too we should be suspicious of the indirect argument for mandatory vaccination: the unvaccinated only "harm" other people who might need hospital beds because we chose to treat them in the first place. Counting those indirect harms as analogous to, say, the harms of being shot or being infected by a virus is misleading.
Anti-vaxxers like to stress the importance of liberty, insisting that they – and only they – should be allowed to choose whether to vaccinate or not. In principle, they are wrong.
At this point, you might worry that there is still something different about the medical case, because maybe we don’t really have a “choice” but to provide care – to leave the unvaccinated to die would be morally monstrous. I agree with that sentiment. In turn, I think that this concern underlies some public anger about the unvaccinated, grounded in a sense that they are somehow exploiting the system.
Still, it is one thing to be annoyed at others for avoidably using scarce social resources, but quite another to say that their choices harm us in a way which would justify restricting their liberty.
Anti-vaxxers like to stress the importance of liberty, insisting that they – and only they – should be allowed to choose whether to vaccinate or not. In principle, they are wrong. Just as the State can legitimately infringe your liberty to shoot anywhere you want, so, too, it can legitimately infringe your liberty to choose to vaccinate.
What is true, though, is that we can only compel vaccination when doing so is a proportional response to the risks of harm you pose to others. As things stand, it seems unlikely that not getting vaccinated against Covid-19 is comparable to shooting in public places.
Anti-vaxxers’ choices are often ill-founded, imprudent, and place great strain on healthcare services. We should encourage them to change their minds. Ultimately, however, within liberal societies, mandates are a step too far.