Delighting in 'COVID-19 Vaccine Mandates: A Coercive But Justified Public Health Necessity' by Kay Wilson and Christopher Rudge in (2023) UNSW Law Journal.
The authors comment
In response to the COVID-19 pandemic, governments worldwide introduced vaccine mandates and ‘passports’, creating tension between individual liberties and public health. This article provides an overview of the history of vaccine mandates in Australia and the United Kingdom, before examining the COVID-19 period, when Australian states introduced various conditional mandates while the United Kingdom largely avoided doing so. This article considers several medico-legal and human rights arguments for and against the imposition of conditional mandates. Although this article concludes that vaccine coercion is both legally and morally justified, it acknowledges the right to refuse medical treatment, freedom of thought, conscience, and opinion, and the right to bodily integrity as important precepts deserving serious consideration. In many cases, alternatives to coercion are preferable. This article has ongoing relevance, both for COVID-19 (as new variants and treatments emerge) and beyond, including for the use of coercion in childhood vaccination and future pandemics.
They go on to argue
The COVID-19 pandemic has caused enormous global disruption. The World Health Organization (‘WHO’) estimates that global excess mortality associated with COVID-19 between 1 January 2020 and 31 December 2021 was in the order of 15 million persons. Many more deaths are expected to occur into the future, together with illness and disability resulting from ‘long COVID’. In response to this extraordinary health crisis, governments worldwide introduced a range of regulatory measures intended to reduce infection, some unprecedented in modern history. Border closures, quarantine directions, lockdowns, curfews, mandatory testing, contact tracing, self-isolation, social distancing, mask wearing, and mandatory diagnosis reporting have been key examples of newly prescribed conduct. While the actual economic costs of the pandemic to the global economy are incalculable, analysts have proffered eye-watering estimates of between USD5.8 trillion and USD16 trillion (or 90% of the gross domestic product of the United States). Amid the crisis, COVID-19 vaccines became widely accepted as the best ‘way out’ of the pandemic. Rapidly developed and approved through a hitherto unavailable expedited regulatory scheme, these vaccines were distributed around the world in the billions.
For all the logistical and organisational achievements of managing COVID-19, ‘vaccine hesitancy’ was (and continues to be) a stubborn health and economic problem in many countries. While ‘vaccine hesitancy’ is a contested term, in this article we use it broadly to mean generalised uncertainty or indecision about vaccination as well as refusal of vaccination. We do not use ‘vaccine hesitancy’ to include all instances of under-vaccination caused by external factors, such as lack of vaccine accessibility or convenience, and we acknowledge (and argue in Part V below) that inadequate or poor government information and policy failures also contribute to COVID-19 vaccine hesitancy.
In many Western countries, vaccine hesitancy has hovered between 20% and 30%. In September 2021, research published by Imperial College London indicated that some 25% of the United States population were unwilling to be vaccinated, with more than 6% uncertain. The same study confirmed that, in the United Kingdom, France, Germany and Sweden, around 20–22% were unwilling to be vaccinated, with 5–6% uncertain. In Canada, Australia and Italy, around 17% were unwilling to be vaccinated, with between 4 and 9% uncertain. That said, in many countries, vaccine hesitancy has tended to reduce over time. As at 11 January 2023, some 96% of Australians over 16 have had two COVID-19 vaccine doses (following the introduction of vaccine requirements). A smaller majority of the eligible population (72.4%) has received a third ‘booster shot’, and only 44.3% of those over 30 have received a fourth. Although the percentage of vaccine-hesitant people remains a clear minority, the total number can be a large cohort: 25% of the US population amounts to 80 million people.
In response to vaccine hesitancy, governments have considered incentives to encourage citizens to undergo vaccination, ranging from direct payments through to prize lotteries. Commonly, as discussed in detail below, governments also resorted to deploying social and legal coercion. Some required people working in certain roles or in specific age groups to undergo vaccination while others ‘rewarded’ vaccinated persons with ‘freedoms’ from restrictions on travel, movement and everyday activities. Many private businesses, including airlines, also required employees and customers to be vaccinated or risk employment termination or suspension. Administered in a context of legal uncertainty (at least initially), these government and private actions led to multiple legal challenges that continue today (some of which are discussed below). In principle, the use of coercion to compel vaccination stands in tension with the values of individual liberty, personal autonomy and bodily integrity – values that distinguish liberal democracies from totalitarian regimes. But the imposition of coercion also raises more than just questions of principle. In many countries, like the United States, vaccination has become a contentious political issue, sowing division along party lines. While the vaccinated population grew impatient and frustrated with the unvaccinated, some vaccine objectors attacked and harmed medical practitioners, retail workers and others. A minority of unvaccinated people, in countries including Australia, organised in protest against perceived government overreach, some becoming violent.
This article acknowledges the delicate tension between individual rights and public health control, and analyses arguments both for and against the use of ‘soft’ and ‘hard’ coercion by states to address or overcome vaccine hesitancy. Focusing on the contrasting approaches of Australia and the United Kingdom, Part II defines what we mean by coercion. In Part III, we examine vaccine-related coercion in its sociohistorical context, reviewing governmental responses to anti-vaccination movements in 19th century Britain and Australia. Part III also surveys a range of COVID-19 vaccine-mandating laws and summarises select Australian legal cases. In Part IV, we consider the most forceful arguments against vaccine coercion, drawing on concepts from medical and human rights law. In Part V, we review the arguments in favour of mandatory vaccination, underlining the sociocultural lessons of history discussed in Part III.
Ultimately, this article argues that most forms of vaccine-related government coercion are justified in view of the overwhelming personal, social, health and economic benefits that come with vaccination (especially during a pandemic). But we also contend that coercion is not to be imposed lightly or as a first resort. Thus, our conclusion identifies other approaches to encourage vaccination that may be preferable to coercion. In its consideration of the scope and limits of liberty in liberal democracies, this article is expected to have relevance not just for the immediate crisis (as novel variants and treatments evolve) but for law and policy in the post-COVID-19 period, including for policy on vaccine hesitancy and the use of coercion for routine childhood vaccination, and for future pandemics.
