Justin Bernstein and Mark Navin
Governments Shouldn’t Fine Citizens for Vaccine Refusal
Mass vaccination against communicable diseases protects individuals and populations. In the context of the COVID-19 pandemic, vaccinating populations is the best way to prevent death and suffering, reduce hospitalization from COVID-19 disease (and thereby help preserve healthcare capacity), mitigate economic losses, and preserve access to in-person schooling and third-party childcare. Presumably, liberal states have an obligation to their citizens to prevent at least some of these harms, and to protect or produce at least some of these goods. Accordingly, it appears that governments have a moral responsibility to ensure that citizens get vaccinated. Yet many citizens of liberal democracies have not been vaccinated against COVID-19—even in contexts of non-scarcity of vaccine. Indeed, in many communities, rates of vaccine refusal are sufficiently high enough to undermine the social benefits of mass vaccination.
Governments have responded to this tension—between the responsibilities of governments and the decisions of some citizens to refuse vaccines—by implementing a host of policy measures to increase vaccination rates. Many such policies aim to promote vaccine acceptance or vaccine access. But the most ethically challenging policies are mandates, which use threats and sanctions to promote vaccination. For example, Greece recently enacted a COVID-19 vaccine mandate that made international headlines: it imposed a 100 euro/month fine for citizens above the age of 60 who remain unvaccinated.
Is it ever justified to impose financial penalties on the elderly to promote vaccination?
Is Greece's policy ethically justified? Is it ever justified to impose financial penalties on the elderly to promote vaccination? In this blog post, we raise some worries about such policies. First, a straightforwardly paternalistic argument would appear to justify these fines, but paternalism violates core requirements of liberal political morality. Second, invoking prevention of harm to third parties is consistent with core requirements of liberal political morality, but this appeal does not straightforwardly justify financial penalties for the elderly, given features of COVID-19 and the vaccines that protect against it. Third, justifying such policies by appealing to how vaccine refusal negatively affects an overburdened medical systems ultimately encounters significant worries of justice. Finally, even if one were to reject any or all of these three previous arguments, we give reasons to doubt that such fines will be as effective—in the short-term and the long-term—as its advocates might suppose. Given these ethical and practical drawbacks, governments should not adopt vaccine mandates that impose fines on older citizens, or on any citizens.
One might defend fines for vaccine refusal on the grounds that such fines may protect elderly citizens against their own bad choices. The COVID-19 vaccine provides significant protection against developing a severe case of COVID-19, and persons over 60 face especially high risk from the disease. If fines incentivized these citizens to get vaccinated, then this would benefit those individuals. This argument would count in favor of vaccine mandates if we accepted paternalism. However, apart from a few spirited defenses, most (if not all) liberal political philosophers eschew paternalistic justifications for public policy. For the purposes of this piece, we will assume that an appeal to purely paternalistic considerations cannot justify a policy like Greece’s because we reject paternalistic defenses of the coercive interference in the choices of adult citizens.
If liberals can’t appeal to preventing harm to self to justify a policy of fines for the elderly, perhaps they could appeal to interpersonal harms. Some vaccines, such as the measles mumps and rubella (MMR) vaccine, both protect the recipient of the vaccine and also reduce the chances that the vaccinated person will infect third parties. This feature has led some to defend MMR vaccine mandates by appealing to a popular principle of political morality endorsed by John Stuart Mill, or what has come to be known as the ‘harm principle’: interference with individual liberty is justified only if it prevents direct harm to non-consenting third parties. Issuing a fine for vaccine refusal interferes with individual liberty. But if widespread vaccination protects third parties from the harm of infection, and if issuing fines increased vaccination rates, perhaps the harm principle could justify such a policy.
Even if this argument works in the case of the MMR vaccine, it seems far less promising in the context of COVID-19 vaccination. While vaccination provides excellent protection to vaccinated persons against severe cases of the disease of COVID-19, we lack evidence that vaccination meaningfully reduces the likelihood of vaccinated individuals infecting others with the SaRS-CoV-2 virus, which causes the disease of COVID-19. And if vaccination does not provide significant protection to third parties against infection from the SaRS-CoV-2 virus, then the harm principle does not appear to justify issuing fines for vaccine refusal. Moreover, even if COVID-19 vaccination did meaningfully prevent direct harm to third parties, there would be no principled basis to issue fines only to elderly citizens. Unvaccinated individuals from younger age groups would also infect others. Indeed, individuals from younger age groups might be more likely to infect others than older age groups—e.g., because they are more likely to socialize with lots of people, to function as vectors between older and younger age groups, etc. Therefore, the harm principle would not justify a fine for citizens over 60 in particular, even if COVID-19 vaccines did meaningfully protect third parties from infection by the SaRS-CoV-2 virus.
Even if we grant that one person’s use of scarce medical resources harms others in these circumstances, the case of vaccine refusal involves a decidedly indirect harm[.]
One possible response to the arguments so far would appeal to both harm to self and harm to others: because COVID-19 vaccines protect the recipient, vaccination prevents harm to third parties—but not by preventing the harm of infection. Instead, given their higher risk of developing severe COVID-19, the unvaccinated elderly face higher risk than others of needing scarce medical resources. Going unvaccinated risks depriving others of these scarce resources. Being deprived of these resources, in turn, constitutes a harm. So, the fines are consistent with the harm principle, after all.
This argument encounters (at least) two problems. First, the harm principle paradigmatically functions to justify liberty-limiting measures to prevent direct harm. Even if we grant that one person’s use of scarce medical resources harms others in these circumstances, the case of vaccine refusal involves a decidedly indirect harm; it’s in virtue of the harms to the vaccine refuser that the third-parties lack access to the scarce resources. Second, the harm principle does not apply nearly as straightforwardly to prohibiting behavior that contributes to overdetermined harms to unidentified persons. This matters because it’s not as though one person’s decision to go unvaccinated, in a vacuum, indirectly harms an identifiable individual. Instead, the vaccine refuser runs the risk of contributing to an overburdened healthcare system that, in turn, will not be able to provide adequate care for all who need it.
Of course, at least some readers will still think the effects of vaccine refusal on third parties could justify fines for vaccine refusal. Even if it’s not licensed by the harm principle as presented above, surely there’s a case for governments to implement liberty-infringing measures to reduce the likelihood of having an overwhelmed hospital system. After all, a host of liberty-restricting non-pharmacological interventions were often justified by the appeal to preserving hospital capacity, as the rallying cry of ‘flattening the curve’ attests. A fine would presumably disincentivize vaccine refusal—and thereby help to reduce the strain on overburdened medical institutions. A nearby but distinct rationale for fining older unvaccinated Greek citizens has to do with offsetting costs the unvaccinated impose on the rest of society. Just as some defend Pigouvian taxes on sugary beverages by appealing to offsetting the negative externalities of ‘unhealthy lifestyle choices,’ we might also think that fines for vaccine refusal offset the costs the rest of society suffers from the behavior of vaccine refusers. Indeed, Greek Prime Minister Kyriakos Mitsotakis seemed to invoke both of these rationales for the policy, stating, “It’s not a penalty. I’d say it’s a health levy, motivation for precaution, a boost to life, but also an act of justice towards the vaccinated majority. We can’t have people being deprived of public health services they need because certain others have dug in their heels and refuse to do what is self-evident.”
Yet we should hesitate to embrace either of these rationales—the disincentivizing effects of the fine or offsetting the negative externalities of vaccine refusal. To begin, 60+ year-old individuals are not the only ones at heightened risk of severe COVID-19. Individuals with various medical conditions and disabilities also face significant risk. So, if we should treat like cases alike, fines should be applied to vaccine refusers from these other groups, too, given that their vaccine refusal also disproportionately contributes to an overburdened healthcare system. But it strikes us as indefensible to issue fines to vaccine refusers with disabilities or medical conditions because of how these disabilities or medical conditions increase their likelihood of developing a severe case of COVID-19. Even if they escape the charge of blatant ableist discrimination, such measures would have stigmatizing effects and generate an incentive for vaccine-hesitant patients to withhold information about their medical conditions from their doctors. Moreover, in many cases, the relevant medical conditions—hypertension, diabetes, or asthma—occur disproportionately among members of unjustly marginalized social groups. Accordingly, we should worry that such a fine would have regressive effects.
[I]ssuing fines to vaccine refusers in order to preserve healthcare system capacity runs the risk of treating individuals as culpable wrongdoers who ‘refuse to do what is self-evident,’ when, in fact, their behavior reflects a much more complicated relationship with flawed institutions[.]
Perhaps some would argue that because of these considerations, there is a more principled reason to only fine 60+ year-old individuals. Or, alternatively, one might point out that our objections so far do not count against a fine that would target all vaccine-eligible individuals regardless of medical condition or age. But there are other justice-based concerns that have less to do with age or medical condition, and more to do with differential impacts associated with socioeconomic status. Some citizens may well be able to afford paying such fines, or they are experienced as a tax—a ‘health levy,’ in the words of Prime Minister Mitsotakis. For others, by contrast, such fines will function as a restriction of their choices; the costs of refusal are too high to entertain seriously. The fact that such fines will function as a prohibition on the less advantaged but an inconvenience on wealthier individuals should give policymakers pause.
But even if the fine could be designed to avoid this worrisome differential impact, we should be concerned that such a policy penalizes people for being subject to injustice. To return to the analogy with Pigouvian taxes on unhealthy eating, in many contexts, unhealthy diets are cheaper, require less time to acquire or prepare (that could otherwise be spent on valuable activities), or healthier diets are less accessible in other ways. Moreover, this is often the case because society has failed to make healthier diets reasonably accessible to marginalized individuals. In at least some instances, then, taxing unhealthy diets seems awfully close to taxing victims of injustice for having the misfortune of finding themselves in unjust circumstances.
The parallel worry about issuing fines to the unvaccinated is that in some cases, the relevant behavior is, at least partly, a response to institutional dysfunction. Accordingly, the relevant fines should not be viewed as justly taxing individuals for irresponsible decisions. Instead, we should entertain the worry that such a tax punishes some of these individuals for their responses to societal failures. For instance, some cases of vaccine hesitancy or refusal occur due to its costs and the lack of support in the face of its costs—e.g., the time required to get vaccinated, or the time lost to the (temporary) side effects of vaccination. In other cases, individuals refuse vaccination due to salient ongoing or historical injustices. Here the details will vary by context. But to illustrate with one case, some new mothers in the United States express hesitancy about routine childhood vaccines in response to testimonial injustice—especially cases in which medical practitioners do not take women’s testimony about their health seriously. Or, to take another example, knowledge of the infamous Tuskegee Syphilis Experiment and awareness of ongoing systemic racism in the medical context are each correlated with vaccine hesitancy among Black Americans. Finally, many healthcare systems are overburdened during this pandemic because they are underfunded—not solely due to a virus and irresponsible decisions of vaccine refusers. If that’s correct, then we should not think about vaccine refusal as straightforwardly depriving society of a fixed pool of scarce resources. Instead, decisions by policymakers and longer-term institutional dysfunction have played a meaningful role in generating the relevant scarcity.
While these examples vary in important respects, the common thread is this: issuing fines to vaccine refusers in order to preserve healthcare system capacity runs the risk of treating individuals as culpable wrongdoers who ‘refuse to do what is self-evident,’ when, in fact, their behavior reflects a much more complicated relationship with flawed institutions which have played a significant role in creating the mess we’re in.
Finally, instrumental considerations count against policies like Greece’s. Vaccine mandates often are less successful or create more negative side effects than their advocates suppose. For example, when the state of California eliminated non-medical exemptions to school entry mandates, rates of medical exemptions amongst kindergartners in California more than tripled, from 0.2% in the 2015–2016 school year to 0.7% in the 2017–2018 school year. And many parents were able to have their unvaccinated children diagnosed with a ‘learning disability’, so that, under federal law, they would not be denied access to education because of their vaccination status. We don’t know the effects of Greece’s new policy in advance, but there are good reasons to think that punitive measures for promoting public health are likely to be less effective—and more costly—than their advocates claim.
[I]ssuing fines hardly promotes the kind of trust that’s needed to effectively combat the pandemic—the kind of trust that mitigates vaccine hesitancy in the first place.
These misgivings about effectiveness and unintended consequences of COVID-19 vaccine mandates become more striking when we recognize that the threat of COVID-19 is here to stay. The relevant mandates are unlikely to be one-off emergency measures that resolve the problems of under-vaccination. The COVID-19 vaccines provide protection for less time than, say, the MMR vaccine, and there are reasons to worry they will provide less protection against future variants. Moreover, issuing fines hardly promotes the kind of trust that’s needed to effectively combat the pandemic—the kind of trust that mitigates vaccine hesitancy in the first place. It stands to reason that repeatedly issuing such fines is not conducive to this trust, either. In effect, we should worry that there are long-term costs to such policies and that such policies won’t effectively solve the longer-term challenges that the pandemic poses.
This point about repeatedly finding ourselves in similar circumstances warrants further elaboration. Vaccine refusal during this pandemic will remain a frustrating obstacle for governments as they attempt to fulfil their obligations—to protect population health, ensure children have access to educational opportunities, ensure medical institutions can provide adequate care, etc. Nonetheless, our arguments suggest that ethicists and policymakers should not think about our responses to this pandemic as if they were one-off emergency interventions that will help us return to ‘normal.’ Instead, our response to vaccine refusal should focus on longer-term institutional reforms that can promote vaccine acceptance and social justice, more broadly.
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