Some critics of vaccines make absurd arguments such as vaccines connect you to the internet and vaccination makes you the legal property of a pharmaceutical company. Those are fun to mock.
More serious are concerns like,
- Sanctity over one’s own body. If they wanted to protect their body they’d want a vaccine, but more fundamentally the question of choice works if they expose only themselves to risk and don’t impose costs on others when succumbing to risk. Since viruses spread, including pre-symptomatically, failing to take reasonable steps like vaccination violates the rights of others.
- Creating a dystopian two-tiered society. Vaccination as a requirement to engage in activities that didn’t previously have such conditions impinges on the freedom of people making a choice about their body to engage in commerce and leisure activities. Of course anyone in the U.S. who wants a vaccine can have one, and not being vaccinated increases the risk to others. But it turns out that’s the wrong way of thinking about the rights debate altogether.
Three law professors make the argument that, far from impinging on rights, Americans have a constitutional right to have vaccine passports. Governments are imposing restrictions, and they have an obligation to use means that are the least restrictive of rights possible. That means exempting people who are less of a threat – the vaccinated – from those restrictions.
A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures.
While some measures may be unconstitutional regardless of to whom they apply, we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be.
The government is never constitutionally obligated to impose liberty-restricting measures in response to an epidemic. But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness.
Under U.S. constitutional law, vaccinated people might be entitled to exemptions from six sets of restrictions:
- domestic travel and movement, under Fourteenth Amendment substantive due process;
- international travel;
- uncompensated shutdowns, under the Fifth Amendment takings clause;
- abortion, under the constitutional right to privacy;
- restrictions on access to gun stores, under the Second Amendment; and
- assembly and worship, under the First Amendment freedom of assembly and free exercise clauses.
(Formatting altered from the original.)
Americans favor vaccine passports for air travel by a wide margin but rights aren’t something we vote on. If liberties are going to be restricted, those restrictions should be targeted at those who present a clear risk – and lower-risk individuals should be exempted. In other words, when there are restrictions the government is also obligated to provide for vaccine passports.