Below is a longer version of my column that ran in the Los Angeles Times on the danger of using antibody testing as a basis for discrimination. The concept of a pandemic passport of course will only be plausible if such antibodies truly yield a form of immunity. The WHO has declared that there is no evidence to support that claim. Yet, plasma treatments are reportedly successful.
Here is the column:
With the coronavirus antibody tests being rolled out, the country is about to be flooded with millions of tests to determine if individuals have already been exposed to the virus and presumably have immunity from it. The development is key for researchers to understand both the scope and spread of the virus as well as how close we may be to a type of “herd immunity.” That public health breakthrough however could trigger some difficult legal questions. First and foremost, what if you are not part of the herd? The country may soon have to deal with a new concept of bias: antibody or immuno discrimination.
There is a growing and urgent need to get this economy rolling as the virus outbreak subsides. President Donald Trump is correct that destroying this economy will ruin the lives and dreams (and yes health) of tens of millions of citizens. It could reduce the horizon for an entire generation saddled with crippling debt and reduced markets.
Recovery will occur only to the degree that people feel comfortable about getting on airplanes, trains, buses, restaurants, and other closed spaces. With a vaccine projected as still a year away, the population could soon be divided into the immunized and the potentially contagious. If you are in the later group, the question is whether you can be denied certain services.
It is not as far-fetched as you might think. Take the airlines. Planes need to be near capacity to be profitable as a general rule. Social distancing on an airplane is not economically viable. One solution is to require proof of antibodies in your system with one of these available tests. Indeed, the airlines this week floated the idea of a required blood test. That conversely would create barriers to those who are immuno signatures.
Various countries are already using tracking technology to identify carriers and the same technology can be used to distinguish those who are immune. In Moscow, the government has issued “digital permits” to travel that bars others from public transport and even car traffic.
Our legal system is poorly suited for discrimination based on antigens. The discrimination laws focus on immutable characteristics like race and there are both constitutional and statutory protections for those singled out for their religion, gender, sexual orientation, and other classifications. This is not an immutable characteristic but one based on the status of a person’s immunity from a virus.
The other area of relevant law covers quarantine powers in a pandemic. However, those laws and cases focus on confining the contagious, not the potentially contagious.
This issue could actually become more acute once a vaccination is available. The imposition of a mandatory vaccine would be necessary to prevent a renewed outbreak. Putting aside the logistics of vaccinating over 300 million people, many will object or fail to comply. They will continue to represent a fertile population for the virus to take hold. There are three ways to maximize immunization. First, make it mandatory. Second, convince people that they need it. Third, give him an incentive or disincentive in complying.
The first option will turn on a 1905 case where the Supreme Court upheld a state mandatory vaccination program of school children for small pox in Massachusetts. In Jacobson v. Massachusetts (1905), the Court found that such programs are the quintessential state power rather than a federal power. It also held that “every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” States are allowed to subject citizens to restraints to protect “general comfort, health, and prosperity of the State.” The Congress should fund a national vaccinations program and leave mandatory compliance orders to the states.
The second option is already well-established in the minds of most citizens. A deadly pandemic helps. However, we continue to be ministers die who defied orders against large services and young people who put spring break above survival concerns. There will continue to be a percentage of citizens who simply do not believe the virus will touch them or faith or youth will protect them.
That leaves the third option. If people face limitations on travel and employment, a rational actor is likely to comply even if they see little need to do so otherwise. Yet, such a system of proven immunization will create an insular group of the immune deficient. In Jacobson, the law focused on children and the penalties were being blocked from school and a small fine. With the coronavirus, a state would have to compel the population at large of every age.
Some may raise religious or other constitutional rights to refuse a vaccine. The states will have a strong argument that this is not a case of simply self-inflicted harm like those who handle snakes as a matter of faith. By not complying, individuals are fueling the spread to others, particularly more vulnerable populations. In 1922, the Court ruled in Zucht v. King that a school system does not violate the 14th Amendment’s Equal Protection Clause in denying school to students who refused for any reason to be vaccination.
Most importantly, in 1944 in Prince v. Massachusetts, the Court upheld such mandatory programs because “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
The coronavirus vaccination program would be broader but still rely on the same precedent. Congress can impose limits on interstate travel and the Transportation Security Administration could impose entry requirements but gate areas. The question is whether private businesses like airlines could also make vaccination or immunity a condition for customers. Airlines are part of a regulated industry and could face difficulty in the unilateral imposition of such conditions.
Thus, while states are key to mandatory vaccinations, the federal government would be key to allowing travel restrictions and other barriers to the noncompliant. In doing so, the restrictions would have to trump the right to travel and other constitutional rights. The coercive impact on individuals would be extreme. Noncompliant and non-immune citizens would be isolated physically and socially. Moreover, to make such a system work, there would have to be an easy form of proof of immunization or vaccination – a type of antibody passport.
In the end, the federal and state government may decide to accept a certain level of noncompliance and resulting contraction of the virus. If this is a slowly mutating virus, a second wave may be manageable with therapeutics and ramped up resources. However, if the country wants to impose a mandatory program, it will have to deal with a new status dividing the population between the immune and non-immune.