• Theron Pummer

Secondary Permissibility and Enabling Harm: a Case of COVID-19


Month after month, the news has been inundated with ethical questions of COVID-19 vaccine distribution. Who should be prioritized, and on what basis? How should we approach global access to vaccines through initiatives like COVAX? In addition to distribution, there are questions of vaccine development. Under what conditions should we allow human challenge trials of vaccines to help combat (new variants of) the virus? In this post, I’ll show how an ethical phenomenon known as ‘secondary permissibly’ might be a feature of vaccine distribution and development choices.


Most of us intuitively accept a moral distinction between doing harm as a side effect and doing harm as a means. Consider a version of the famous ‘trolley problem’: a trolley is about to kill ten strangers, and you can divert it onto a side track where it’d kill two other strangers instead. It is intuitively permissible to kill the two as a side effect of saving the ten. But now suppose the only way to save the ten is by throwing one stranger in front of the trolley, thereby killing them. It is intuitively impermissible to kill this person as a means of saving the ten.


Years ago, Frances Kamm observed that it can become permissible to harm people in ways that would otherwise be impermissible, when we have the alternative of harming these same particular people in ways that would otherwise be permissible.[1] Suppose, for example, that you can save ten strangers from being killed by a trolley either by diverting it onto a side track where it’d kill two others, or by throwing one of these two in front of the trolley. Now it seems permissible to throw the one in front of the trolley—after all, this way you’d kill only one of the two, to achieve the same good of saving the ten. The presence of the alternative of diverting the trolley, killing the two as a side effect, makes permissible the otherwise impermissible alternative of throwing the one at the trolley, killing the one as a means. This has come to be known as the phenomenon of ‘secondary permissibility’.


Notice that secondary permissibility does not imply that it’s permissible to harm people as a means unless these particular people are among those you could harm as a side effect. It is permissible to save the ten by throwing Albert at the trolley when you could instead save the ten by diverting the trolley onto a side track where it’d kill Albert and Carlos, but it is impermissible to save the ten by throwing Albert at the trolley when the only other way to save the ten is by diverting the trolley onto a side track where it’d kill Betty and Carlos.


Is secondary permissibility confined to artificial thought-experiments, or do we find it in the real world too? Kamm suggests it could occur in war.[2] Suppose we could permissibly win a just war by bombing a weapons factory, killing 100 innocent civilians as a side effect. But suppose also that, if the factory weren’t there, we could impermissibly win the war by directly bombing 50 of these same civilians as a means of terrorizing the enemy. When both ways of winning the war are available, it seems permissible to directly kill 50 of the civilians as a means. After all, this way we would kill only 50 out of the same 100, to achieve the same good of winning the war.


[S]econdary permissibility does not imply that it’s permissible to harm people as a means unless these particular people are among those you could harm as a side effect.

We can find secondary permissibility in real world cases beyond those of war. I’ll present three cases involving COVID-19 vaccines, the third of which appears to be an instance of secondary permissibility.


Redistribute: Our health service (the NHS in the UK) is about to distribute a COVID-19 vaccine to a group of younger people, saving the lives of 100 of them. We learn that, if we stop the health service from doing this, and instead redistribute the vaccine to a group of older people, this will save 400 of their lives. For logistical reasons, we lack the time to split the vaccine between the groups.


Redistributing the vaccine removes a barrier to—that is, enables—harm to the younger people as a side effect of preventing harm to a greater number of older people. This seems permissible.


Upgrade: Our health service is about to distribute a COVID-19 vaccine to a group of younger people, saving the lives of 100 of them. We learn that, if we stop the health service from doing this, and instead leave half of this group unvaccinated, then, while 50 of them will die, scientists will gain information from their infections, develop an upgraded vaccine, and distribute it to a group of older people, saving the lives of 500 of them. The upgraded vaccine would be unstable, and useless beyond this case.[3]


The history of leaving non-consenting people untreated to gain medical knowledge is riddled with racism and other wrong-making features (think of the Tuskegee Syphilis Study). Even if Upgrade lacks many of these features, it’s still a case of enabling harm to the younger people as a means of preventing harm to a greater number of older people. And that still seems impermissible. It’s not okay to use people in this way without their consent. But now consider a case in which the alternatives of redistributing and upgrading are both available.


Redistribute v Upgrade: Our health service is about to distribute a COVID-19 vaccine to a group of younger people, saving the lives of 100 of them. We learn that we can stop the health service from doing this and instead either redistribute the vaccine, enabling the deaths of these 100 younger people as a side effect of saving 400 older people, or upgrade the vaccine, enabling the deaths of 50 of these younger people as a means of saving the same 400 older people, plus 100 more.

Now it seems permissible to enable the 50 deaths as a means of saving the 500. After all, this way we would enable the deaths of only 50 out of the same 100 younger people, to achieve the same good of saving the 400 older people, plus 100 more. The presence of the alternative of redistributing, enabling 100 deaths as a side effect, makes permissible the otherwise impermissible alternative of enabling 50 deaths as a means. This would appear to be another real-world instance of secondary permissibility.


In practice, invoking secondary permissibility as a justification—even when it would otherwise be correct to do so—could risk others invoking it when it doesn’t apply.

Of course, Redistribute v Upgrade is still not entirely realistic. For one thing, in the real world, it will be difficult to be certain that the 50 younger people whose deaths we enable as a means of upgrading would belong to the group of 100 younger people whose deaths we would enable as a side effect of redistributing. And similarly it will be difficult to be certain that the 500 older people saved using the upgraded vaccine would contain the same 400 older people who would be saved if we simply redistributed the (non-upgraded) vaccine to them. But maybe there are some cases in which we can be confident enough that there will be enough overlap between these groups to make enabling deaths as a means of upgrading our vaccine permissible, all things considered.


In practice, invoking secondary permissibility as a justification—even when it would otherwise be correct to do so—could risk others invoking it when it doesn’t apply. It is a style of justification that may be susceptible to misunderstanding and abuse. I wouldn’t recommend using secondary permissibility justifications in real-world cases of war or medicine without considering these risks carefully.


Notes

[1] See Kamm 1996 (198-201). For a more recent discussion, see Graham 2021. [2] See Kamm 2011 (99-101). Also see Walen 2019 (165-67). [3] This is an adaptation of Quinn’s 1989 (336) case of allowing harm in order to obtain life-saving information.


References

Graham, P. A. (2021). “‘Secondary Permissibility’ and the Ethics of Harming,” Journal of

Moral Philosophy 18: 156-177.

Kamm, F. M. (1996). Morality, Mortality: Volume II. New York: Oxford University Press.

Kamm, F. M. (2011). Ethics for Enemies: Terror, Torture, and War. New York: Oxford

University Press.

Quinn, W. S. (1989). “Actions, Intentions, and Consequences: The Doctrine of Double

Effect,” Philosophy and Public Affairs 18: 334-51

Walen, A. (2019). The Mechanics of Claims and Permissible Killing in War. New York:

Oxford University Press.


Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.