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What ethical issues do mandatory interventions to limit the spread of the Covid-19 virus raise — in particular, mandatory vaccination? Asked another way, what weight should be given to the arguments of “anti-vaxxers” who oppose mandatory vaccination?

I am not addressing here “involuntary vaccination” — namely, rounding up people and vaccinating them against their will, although in highly dangerous infectious disease situations, Public Health authorities can have powers to impose treatment. Rather, I am focussed on what could be described as “non-voluntary vaccination”, the person can avoid vaccination, but only by making a choice they do not want to make.

“Anti-vaxx” reasoning

First, we need to recognise that people who oppose mandatory Covid-19 vaccination can belong to three different groups: those who oppose all vaccinations; those who are vaccine hesitant, because they are uncertain about the Covid-19 vaccine’s safety or efficacy, or its side effects, or they do not trust the promoters of vaccination; and those who oppose only mandatory Covid-19 vaccination.

For my purposes here, I include them all within the designation “anti-vaxxers”.

Leaving aside the reasons of the “anti-vaxxers” who oppose all vaccinations, or those who are vaccine hesitant, the basis of the opposition of “anti-vaxxers” who oppose only mandatory vaccination is twofold.

First, mandatory vaccination breaches the individual’s right to autonomy and to self-determination regarding the integrity of their own body. This right is implemented in both law and ethics, through the requirements of the doctrine of informed consent to medical treatment, which includes the right to refuse all treatment. Second, they object to the state’s interference with individual citizens’ exercise of their right to liberty, and they especially fear that it could set a precedent for the validation of authoritarian exercises of state power in a broad variety of contexts in the future.

In short, these “anti-vaxxers” might not be opposed to vaccination against Covid-19, but just to its being mandatory. Many of them are not just opponents of mandatory vaccination, but of anything mandatory when it comes to protecting people from Covid-19 and stopping its spread — such as requiring masks, ordering lockdowns, and imposing social distancing.

Whatever their reasons, those opposing mandatory vaccination do so although it would protect the vaccinated person against contracting Covid-19, and, if contracted, reduce its seriousness and the likelihood of hospitalisation and death, and substantially diminish the risk of passing the virus on to others.

I have written previously about the ethical use of the state’s power in imposing mandatory measures to protect public health, and explained that the state, or the person or body promulgating such measures, has the burden of proof of the justification of such interventions. That said, we are seeing mandatory vaccination requirements, particularly in workplaces, becoming commonplace. One employee in such a workplace has approached the Victorian Supreme Court challenging their legal validity — consequently, we might soon have a judicial ruling. However, whichever side the Court might come down on, are these measures ethically justified?

Can mandatory Covid-19 vaccination be ethically justified?

The “anti-vaxxers” would say no. I would agree with their position, if the sole purpose of the vaccination were to protect the vaccinated person. In that case, the person has the right to decide for themselves about vaccination and it should not be mandatory. However, even then, refusing vaccination could be unethical depending on all the circumstances. The consequences of Covid-19 infection can go beyond the direct health effect of the virus on the person infected.

For example, for a woman, who is the single mother of several young children, who will be orphaned if she dies of Covid-19, to refuse vaccination, I suggest, could be unethical, unless vaccination is contra-indicated for her on medical grounds. The same could be true for a person who is a carer for a fragile or vulnerable person, who will be deprived of care without the carer. Additionally, the vulnerable or fragile person is at high risk of serious illness or death if they contract Covid-19 and that leads to the next consideration relevant to assessing the ethical acceptability of mandatory vaccination.

Justification of mandatory Covid-19 vaccination

Vaccination does not protect only the individual from Covid-19; it protects other individuals with whom one comes in contact and, by eliciting “herd immunity” when a certain high percentage of the population is vaccinated, it also protects the community, including those who cannot be vaccinated for medical reasons.

I propose that the latter, and those with a serious conscientious objection to the antecedents of a vaccine, are the only people who have a valid justification for being exempt from justified mandatory vaccination.

Moreover, it is not just other people in general who are placed at risk by a person’s refusal to be vaccinated; it can be particular people — for example, the person’s fellow workers. An employee who needs a job to support her family must choose between the risk of contracting Covid-19 incurred by going to work with unvaccinated people and losing her job. I propose that she has a stronger ethical claim to a requirement for the mandatory vaccination of her fellow employees, than does the “anti-vaxxer” who loses their job in the same workplace because they refuse vaccination. They have a far less risky unwanted choice — namely, that of vaccination — than does the woman who makes the unwanted choice to work in a workplace of unvaccinated fellow workers.

This situation when there is no “no harm” option and we must choose who will be harmed, is called in ethics “a world of competing sorrows”. An ethical guiding principle for making such a choice is to implement a preference in favour of the weakest, most vulnerable, most in-need person. Others are nonmaleficence (to choose according to doing the least harm) and beneficence (choosing to do the most good). When both nonmaleficence and beneficence cannot be realised, nonmaleficence takes priority over beneficence.

Flow-on harms of Covid-19 spread

A big worry and a major ethical problem in the Covid-19 pandemic is that of our hospitals being overwhelmed, especially intensive care units (ICUs), with critically ill Covid patients. I believe we all have an obligation to do what we can to prevent this, and at present what we can do is be vaccinated. The “anti-vaxxers” do not address this issue, or, if they do, they minimise or deny its seriousness.

I have been musing on whether the “anti-vaxxers” should go to the end of the queue if they need such care, but that would raise other ethical problems and, so far, I have been told, a person’s vaccination status is not being factored in in allocating treatment when there is a shortage. Moreover, this problem extends beyond Covid-19 patients. If Covid-19 patients overwhelm the hospitals’ resources, people needing critical care for other medical emergencies cannot obtain it — yet another harm of not doing everything we need to do, especially vaccination, to keep to the achievable minimum the spread of Covid-19.

A closely related serious issue is the toll on all staff in healthcare institutions, particularly healthcare professionals, of working in conditions of maximum stress.

This arises from a wide variety of sources: seeing otherwise healthy young people die; fear for their own safety and that of their families and loved ones; the burden of working in oppressive, but necessary, personal protective equipment; knowing that many ambulances with seriously ill Covid-19 patients are lined up on the ramp and no beds are available in ICU; needing to make life and death decisions; and so on.

If justified mandatory vaccination in precisely defined contexts can effectively address even some of these issues, I propose it is not only ethical, but ethically required. “Justified” means that mandatory vaccination must be the least invasive, least restrictive alternative reasonably available and likely to be effective to achieve the goal of minimising, as far as possible, the spread of Covid-19, and the risks, harms, and consequences that go along with it.

Margaret Somerville AM, DSG, FRSC, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...