key: cord-0765508-db0gjxx6
authors: Cope, Kevin; Stremitzer, Alexander
title: Governments Are Constitutionally Permitted to Provide “Vaccine Passports”—Some May Also Be Constitutionally Obligated to Do So
date: 2021-06-01
journal: J Nucl Med
DOI: 10.2967/jnumed.121.262434
sha: 5f10fee6395fce361edc6ca9021c6191d2781cc1
doc_id: 765508
cord_uid: db0gjxx6

nan

people differently based on engaging in certain voluntary acts, such as not receiving a vaccination, often involve the lowest level. In fact, U.S. courts have repeatedly upheld schools' and state requirements that exclude or penalize those who do not receive certain vaccinations (4).

Throughout 2020, when temporary bans on certain high-risk, nonessential activities such as high-density religious services (5), political rallies (6), public dining, theater attendance, and international travel were challenged, they generally (though not always) passed constitutional muster. For good reason, national legal systems tend to defer to officials' policy judgments when it comes to combating public health crises. And indeed, many of those measures represented the best available means to slow the virus.

As we approach wider vaccine availability, however, that is no longer the case. Now, facilitating mass immunity-and exempting the immunized from restrictions-is not only the least libertyrestricting method for ending the pandemic through herd immunity, but also the most effective one. Some vaccines are more than 90% effective at preventing infection (and nearly 100% effective at preventing serious cases). There is a growing body of evidence that fully vaccinated people with no COVID symptoms pose little risk of transmitting the virus to others (7, 8) . Given this evidence, governments will be hard-pressed to maintain that continued universal lockdowns are the least-restrictive way-or even a rational one-of fighting the pandemic.

Introducing a vaccine passport regime would be justified on civil liberty principles alone, at least until societies reach herd immunity (at which point unvaccinated people would be less of a threat to others, and discriminating by vaccination status would become harder to justify). But, as public-health experts and others have argued (9), vaccine passports would have the positive side effect of promoting vaccination, protecting many more from the virus. Throughout the world, vaccine hesitancy (10) is a barrier to achieving herd immunity. Up to 30% of Americans (11) say they are unlikely to get vaccinated. By offering an additional "carrot" of expanded freedom, vaccine passports would nudge at least some to overcome their hesitancy.

Sadly, many countries in the Global South currently have little vaccine access. The inequitable global distribution of vaccine access is deeply troubling, but not introducing vaccine passports on fairness grounds would do nothing to promote global access-if anything, it would do the opposite by deepening the adverse economic impact of the pandemic. Another difficult issue is the case of people who cannot be vaccinated for health reasons. The European Union is planning to provide the passports not only to the vaccinated, but also to those who exhibit antibodies from a previous infection or who have a recent negative test (12) . Options such as these would further blunt the argument that vaccine passports unfairly discriminate by providing benefits to only part of the population. Constitutional choices sometimes involve trading liberty for safety. This is not one of those times. Vaccine passports bridging the period to herd immunity would increase both liberty and safety, while responsibly catalyzing a return to (near) normalcy.

Vaccination passports may infringe on fundamental freedoms and create a class of immunoprivileged, group says. National Post website

Jacobson v Massachusetts: it's not your great-great-grandfather's public health law

Living with Lawrence. Georgetown Law website

The free exercise clause, its original public meaning, and the reconsideration of Employment Division of Oregon v. Smith. SSRN website

Plaintiffs-Appellants, v. J. B. PRITZKER, Governor of Illinois, Defendant-Appellee. uscourts

It's official: vaccinated people don't transmit COVID-19

BNT162b2 mRNA Covid-19 vaccine in a nationwide mass vaccination setting

Personal decisions, public consequences: on distinguishing between the vaccinated and the non-vaccinated in coronavirus management. SSRN website

How vaccine hesitancy could prolong the pandemic

Growing share of Americans say they plan to get a COVID-19 vaccine-or already have

Vaccine passports may save Europe's summer, but only for the lucky ones

We thank Eugen Volokh, Seana Shiffrin, Richard Schragger, Richard R.W. Brooks, and Mila Versteeg for comments to earlier drafts of this article. We are grateful to Hannah Burkard, Ozan Yildirim, and Patrick Krebs for excellent research assistance.