Personal Decisions, Public Consequences: On Distinguishing between the Vaccinated and the Non-Vaccinated in Coronavirus Management

9 Pages Posted: 1 Mar 2021 Last revised: 2 Mar 2021

See all articles by Netta Barak Corren

Netta Barak Corren

Harvard Law School; Hebrew University of Jerusalem

David Enoch

Hebrew University - The Philosophy Department and the Law School

David Heyd

Hebrew University of Jerusalem - Faculty of Law

Ofer Malcai

Hebrew University of Jerusalem - Faculty of Law

Michal Shur-Ofry

Hebrew University of Jerusalem, Faculty of Law

Date Written: February 25, 2021

Abstract

We here sketch – in brief, and with no pretense of completeness – a moral and legal framework for analyzing distinctions between the vaccinated and the non-vaccinated, as a part of the efforts to reopen businesses and public institutions in Israel. We discuss the relevant constraints on personal liberty and what could justify them, what incentives may justifiably be used and in what circumstances, and who should bear the costs of the decision by some not to be vaccinated. While some of the particular applications are particular to Israeli circumstances, the general considerations may be helpful in other countries.

We argue that the collective attributes of the pandemic affect the measures required to cope with it, as well as their morality and legality. We discuss four ends that may justify distinctions between the vaccinated and the non-vaccinated: reducing the numbers of infections and controlling pandemic-related harms and derivative, general, health harms; gradually returning to economic and social normalcy; imposing the costs of the decision not to be vaccinated on those making it; and incentivizing inoculation.

Multiple measures could be designed to achieve these ends and not all means are justifiable. Given the considerable variation in the design and implementation of inoculation-based distinctions, we settle for suggesting general guidelines for analyzing the proportionality and morality of possible measures. In general, we argue that measures that preserve access of the non-vaccinated to essential activities and maintain their ability to participate in other activities either remotely (as with remote teaching or studying) or by providing a ‘proof of safety’ (e.g., a recent negative COVID test) are likely to be proportional.

In addition, we reject the claim that distinguishing between the vaccinated and the non-vaccinated constitutes impermissible discrimination. A crucial assumption here is that vaccination is available to all residents, namely there are no residents who want to get vaccinated but cannot (other than for medical reasons, see below). Under this assumption, in the context of lifting COVID-related restrictions, the vaccinated and the non-vaccinated are relevantly different groups. Opening up activities while conditioning access upon vaccination (or a recent negative test) does not significantly harm the non-vaccinated compared to the COVID-restrictions (implemented in Israel during the past year) – rather, it benefits the vaccinated. And the non-vaccinated are always free to change their decision and come to enjoy the benefits – health-related and others – of the publicly available vaccines.

Of course, any acceptable model will have to include arrangements for those who cannot (rather than will not) be vaccinated (i.e., for medical reasons), and should also include a discretionary mechanism providing specific arrangements for exceptional, hard-to-predict-cases.

Keywords: COVID-19, coronavirus, vaccination, return to normalcy

Suggested Citation

Barak Corren, Netta and Enoch, David and Heyd, David and Malcai, Ofer and Shur-Ofry, Michal, Personal Decisions, Public Consequences: On Distinguishing between the Vaccinated and the Non-Vaccinated in Coronavirus Management (February 25, 2021). Hebrew University of Jerusalem Legal Research Paper No. 21-6, Available at SSRN: https://ssrn.com/abstract=3793188 or http://dx.doi.org/10.2139/ssrn.3793188

Netta Barak Corren (Contact Author)

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, Jerusalem 91905
Israel

David Enoch

Hebrew University - The Philosophy Department and the Law School ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

David Heyd

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Ofer Malcai

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Michal Shur-Ofry

Hebrew University of Jerusalem, Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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