By Bailey Kennedy, J.D.
As vaccination programs slowly ramp up across the United States, a burgeoning idea has slowly gained more traction: immunity “passports” as a way to separate the vaccinated from the unvaccinated, the immune from the vulnerable. The concept is simple enough: once a person is fully vaccinated, they would be given some sort of physical or digital proof of their vaccine status. Businesses, workplaces, schools, and other public spaces could then require a vaccine passport for entry. The upside is clear to those who are vaccinated. Those lucky enough to get a shot due to the vaccine prioritization scheme (or those with the wealth and influence to skip waiting in line) will be able to go about their normal activities, while those closer to the bottom of the list will continue taking 2020-style precautions.
A distinction can be made between what might be called “vaccine passports” and “immunity passports.” Theoretically, immunity passports could granted to anyone who could show the presence of COVID-19 antibodies in their blood. Vaccine passports would be granted only to those who are vaccinated, which would reduce incentives for individuals to seek out coronavirus infections in search of greater freedom. This post will primarily be discussing vaccine passports and how we might see them implemented in the United States in 2021.
Vaccine passports around the world
This isn’t just a theoretical concept. In the UK, digital vaccine passport technology is being developed, and will be tested by the British National Health Service — it should be noted, however, that the UK government in recent weeks has denied that it is planning to use vaccine passports to allow the vaccinated to enter beloved pubs. Though vaccine passports and immunity passports are distinct in many cases, the UK seems to be combining them: their system involves the creation of a “COVID-19 passport,” intended to indicate that the bearer is not a carrier of the virus. Israel, a leader in vaccination, has provided the first practical example of a country to implement vaccine passports on a wide scale. Israelis who are vaccinated will have access to privileges unavailable to the unvaccinated, including access to restaurants and cultural events. India is also requiring vaccine recipients to register with a digital app, though it’s unclear whether Indians registered with the app will receive any direct benefits.
Airlines are also working to develop a digital vaccine passport that could potentially allow for more normal international travel in 2021. This concept should be distinguished from the idea of government-sponsored vaccine passports for other, non-travel related activities. It has long been the case that travelers have needed to show proof of vaccinations before crossing borders — but before the beginning of 2020, it would have been unthinkable that a vaccine might be required for socializing with friends or going grocery shopping.
There is reason to question whether it’s scientifically feasible to develop working COVID-19 immunity passports. Until we know more about how long COVID-19 immunity endures, and whether the vaccines successfully prevent the transmission of the virus, there is still reason for caution even among the vaccinated. However, even in the event that vaccine passports are scientifically and technologically feasible, there are ethical dilemmas associated with people needing vaccine or immunity passports to go about their daily lives. Identity checks for mundane activities could put immigrants without documentation further into the shadows and make them even more reluctant to seek help if they are in need. It also further encourages the encroachment of the government into what most of us consider sacred and private: our bodies.
However, if the concept of immunity passports proves to be scientifically feasible, and some consensus can be reached as to the ethicality of requiring vaccination for a return to normal life, how far can the government go in requiring vaccination for its citizens?
Vaccine requirements at the federal and state level
The simple answer is: pretty far. The right of state governments to require vaccination for their citizens has been established for more than a century. In Zucht v. King, the Supreme Court rejected Equal Protection and Due Process challenges to a vaccination requirement for school children. This case remains good law, and the power of states to mandate vaccination has been further buttressed by a further ruling that states need not exempt people from vaccination requirements even for sincerely held beliefs. Requirements like these could eventually come to cover a large percentage of Americans who interact with children or the healthcare system in the course of their employment. While the majority of Americans have indicated that they intend to be vaccinated, the few who don’t want the shot might find themselves marginalized in a variety of ways.
However, when it comes to the COVID-19 pandemic, state governments alone might not be enough to end the pandemic. As the events of the past year have shown, state governments have vastly different degrees of what they are willing to require from their citizens in the name of public health. Truly ending the coronavirus pandemic requires the vaccine in every state — but the federal government has never required vaccination in the past, and doing so would present legal challenges. The 10th Amendment has been interpreted to grant states primary authority to manage public health. While the Public Service Health Act does grant the federal government power to respond to health emergencies, such as the one created by the COVID-19 pandemic, a vaccination mandate is not one of the powers granted under the Act. Private employers are also entitled to require vaccination from their employees if the requirement is made on a reasonable basis. It’s fair to question whether, given this set of circumstances, anything like Israel’s vaccine passports could ever be implemented in the United States.
Supply, demand, and immunity passports
The question of vaccine requirements and immunity passports is even stickier when we examine the situation of vaccine distribution. It’s one thing to require vaccines when they are widely available and the only people not getting vaccinated are people who refuse to do so. It’s quite another to do so when demand far outstrips supply. In order to protect civil liberties, if governments intend to implement any sort of vaccine passport scheme, they should not do so until the vaccine is accessible to all.
Even when the vaccine is theoretically available to all, it will take time for a critical mass of Americans to get their shots. While polls show that vaccine hesitancy has decreased across the board in recent months, Republicans still remain more skeptical about the new vaccine than Democrats. There are also differences across race and gender lines, with women more hesitant than men and Black Americans more skeptical than other racial or ethnic groups. Additionally, a significant number of Americans don’t own smartphones, and thus would be unable to utilize a digital vaccine passport. While this situation is fluid and likely to change, it draws attention to the fact that vaccine passports would exclude a significant portion of the American public.
Some have also argued that offering cash incentives to encourage vaccination is unethical and coercive. Offering privileges to those who are vaccinated might be seen as a cousin of cash incentives, and similar concerns about coercion apply. If someone is vaccinated because they fear they otherwise won’t be able to live a normal life, it is difficult to say they’ve freely accepted the vaccine. Incentivizing vaccines may also have the counterintuitive effect of making people who are already skeptical still more so.
Another stamp in your passport
Vaccine passports are almost surely going to be a feature of 2021. Development is well underway on airlines, and passports have already been implemented in Israel. But as for whether they’ll become a feature of everyday American life, the outlook is less clear. Although states can mandate vaccines, differing policies between states might make it impractical to have a national vaccine passport. Policymakers should also take into account ethical concerns about whether issuing vaccine passports to their citizens is the right thing to do. Ultimately, though, getting shots in willing people’s arms is more important, and on more solid legal ground, than requiring people to show proof of vaccination in their daily lives.
This article was originally published on the COVID-19 and the Law blog.
Bailey Kennedy graduated from Harvard Law School in May 2022.
