Early in the pandemic, before vaccines were available, my uncle got COVID-19 and unknowingly passed it to my aunt. She was at high risk, trailing a small oxygen tank behind her wherever she went, and the disease quickly took its toll. She died within days.
I got vaccinated as soon as I could, not only to protect myself but primarily to protect my at-risk family members and friends. I have encouraged several friends and family members to get vaccinated. Doctors I know say it’s only a matter of time before every person encounters COVID-19. So the question is: When you do, do you want the best protection available or not?
I understand the appeal of government vaccine mandates. But even if getting vaccinated is a no-brainer for most of us, does government have any legitimate authority to mandate COVID vaccination—or to force private companies to require their employees to get vaccinated?
The question is not whether businesses may choose to require their employees to get vaccinated. They certainly have the right to stipulate the conditions under which they’ll employ people, as does the government insofar as it acts as an employer. Further, businesses ought to carefully consider the nature of their work, the risks to their employees and customers, their customers’ demands, and more to decide on proper safety measures—especially businesses in the health care sector.
But the real question is: Can our elected officials legitimately force people to get vaccinated—or force employers to mandate vaccination? Many say yes.
No Right to Harm
David Leonhardt writes in the New York Times, “Even in a country that prioritizes individual freedom as much as the U.S. does, citizens do not have the right to harm their colleagues or their colleagues’ families, friends and communities. One person’s right to a healthy life is greater than another person’s right to a specific job.”
Of course, there is no such thing as a “right to a healthy life” or a “right to a specific job” (rights sanction a person’s pursuit of such values, but they don’t entitle people to jobs, health, or anything else). But NPR nicely summarizes the essential point of this line of reasoning: Vaccine mandates supposedly are necessary to “protect vaccinated workers from their unvaccinated co-workers.” (Some ask, “Isn’t this why people get vaccinated to begin with—to protect themselves from the unvaccinated?” It is, but as I discuss, breakthrough infections are a significant problem.)
Even the purportedly pro-freedom American Civil Liberties Union says, “Vaccines are a justifiable intrusion on autonomy and bodily integrity. That may sound ominous, because we all have the fundamental right to bodily integrity and to make our own health care decisions. But these rights are not absolute. They do not include the right to inflict harm on others.”
But what about the potential harms on those forced to take the vaccine?
Vaccines Are Safe, Except When They’re Not
Set aside the flu-like symptoms many experience after getting a COVID vaccine. Although statistics tell us that the vaccines available only rarely cause serious adverse reactions, these are not trivial. They include anaphylaxis, a life-threatening allergic reaction; myocarditis and pericarditis, which are inflammatory reactions of the heart with results ranging from stabbing chest pains to heart failure and death; and Guillain-Barré syndrome, which the CDC describes as “a rare disorder where the body’s immune system damages nerve cells, causing muscle weakness and sometimes paralysis.” The CDC also says, “recent reports indicate a plausible causal relationship between the J&J/Janssen COVID-19 vaccine and TTS, a rare and serious adverse event—blood clots with low platelets—which has caused deaths.” Those include, for instance, the 38-year-old Washington woman who died on September 7.
Of course, we can’t weigh the risks of vaccination in a vacuum. We must compare them to the risks of contracting COVID-19 without vaccination. And when we do, we see that, statistically, people are far safer with the vaccination than without.
But nonetheless, does the government have legitimate authority to force those odds on anyone? Would it be moral for bureaucrats to force people to play Russian roulette with a million-chamber gun, even if only a few of those chambers were loaded?
According to the ACLU, doing so is moral because, to repeat the argument: “fundamental right[s] to bodily integrity and to make our own health care decisions” are “not absolute” and “do not include the right to inflict harm on others.” I’ve talked to scores of people on this topic, including doctors, infectious disease experts, and constitutional lawyers, and most (and the strongest) pro-mandate arguments I’ve heard boil down to this same point: There is a conflict between two types of rights, and a person’s right not to be infected outweighs others’ rights to choose not to get vaccinated.
The Vaccination Conflation
One big problem with this argument, however, is that it conflates “unvaccinated” with “infectious.” Of course, to be infectious, one must actually have the disease. An unvaccinated person who doesn’t have COVID simply cannot transmit it.
On the other hand, a vaccinated person who gets COVID can transmit it to others, including those who have been vaccinated. Such breakthrough infections became national news in July when hundreds of people in one Massachusetts town—almost 75 percent of whom were vaccinated—came down with COVID. The CDC reported of this event, “Among five COVID-19 patients who were hospitalized, four were fully vaccinated.”
Although, as my colleague Jon Miltimore reports, many scientists agree that COVID vaccination reduces the likelihood of developing severe symptoms requiring hospitalization, it’s still unclear whether vaccination reduces transmission of the disease. Some say it does because it decreases symptoms and reduces the length of infection. However, the pre-symptomatic period may be the highest-risk time frame for transmission because those infected don’t yet know they’re contagious. The CDC’s investigation of the July outbreak revealed that vaccinated individuals still contract and transmit COVID and, when infected, they carry just as many infectious particles in their throat and nasal passages as do unvaccinated people who have the virus.
The moral of this story? Vaccination status doesn’t tell us whether a person poses a threat to others. The only way to know if a person poses an active threat is to know if he is currently carrying an infectious disease. This is why, as countries reopen their borders, some (including the United States) are requiring not merely proof of vaccination, but proof of a recent, negative COVID test. A vaccinated person may (or may not) be statistically less likely to infect others. But, as economist Milton Friedman said, statistics do not speak for themselves. In this context, they tell us only about aggregates, not about the actual threat posed by any particular person. “I abhor averages,” said Supreme Court Justice Louis Brandeis. “I like the individual case. A man may have six meals one day and none the next, making an average of three per day, but that is not a good way to live.”
Similarly, statistics might tell us that twenty-two-year-old girls are most likely to get into car accidents or that black men in Brooklyn are likelier than most to burglarize homes. But we all recognize that government action against individuals on the basis of statistics is prejudicial and properly illegal. The same goes for vaccination status. It doesn’t tell us whether a person poses a threat to others.
Is this really a sound basis for government violating our “fundamental right to bodily integrity and to make our own health care decisions”?
The Right to Choose
It’s true, of course, that no one has a “right to inflict harm on others.” But that’s a two-way street. Fear of unvaccinated people (and remember, “unvaccinated” does not mean “infectious”) does not give government grounds to launch a preemptive strike forcing people to get vaccinated—or to force employers to do their dirty work for them.
Both sides of this debate call on government to protect our rights. However, when assessing whether an individual poses an active threat, thereby requiring a government response, we can’t rely on statistics, as the pro-mandate argument does—we need evidence.
Unfortunately, our government hampered early efforts to develop COVID testing, the best source of such evidence. So, although it’s good that President Biden’s vaccine mandate at least allows people to opt for testing instead of vaccination, high prices and shortages have largely rendered this a hollow gesture. Many have already had to choose between keeping their jobs and getting vaccinated—an alternative that government has no legitimate authority to impose.
The CDC says, “the known and potential benefits of COVID-19 vaccination outweigh the known and potential risks,” but the weighing of risks and benefits is not something others can do for us irrespective of our own context. The point is not that people shouldn’t get vaccinated. The COVID vaccines currently available are marvels of human ingenuity. But the decision to get vaccinated or not is one every individual morally must be left free to make for himself.
This article was originally published on FEE.org