Learning from five bad arguments against mandatory vaccination

1. Introduction

The suboptimal uptake of COVID-19 vaccines in many parts of the world has prompted unprecedented public debate concerning the ethics of mandatory vaccination [1]. It is imperative we learn lessons from this debate so we are better positioned to navigate policy proposals for mandatory vaccination in the future. Specifically, we should aim to dispense with unsophisticated ethical claims that distract from or otherwise parody more nuanced and forceful arguments and which overshadow other important ethical concerns that have by comparison received little attention. To this end, we identify five ethical objections to mandatory vaccination that are of poor quality but have been frequently raised during the COVID-19 pandemic, including that mandatory vaccination violates the Nuremberg Code, that it is coercive, that it violates informed consent, that it is discriminatory, and that it infringes civil liberties. We argue that, presented as such, each ought to be rejected, allowing future consideration of mandatory vaccination to be focused on concerns more worthy of ethical scrutiny.

2. Mandatory vaccination violates the Nuremberg code

2.1. Claim

The Nuremberg Code is a set of principles for the ethics of human experimentation delineated in the 1947 Nazi doctor case of United States v. Brandt et al. [2]. Principle one emphasizes that voluntary consent is essential for human participation in research. Vaccination mandates violate the Nuremberg Code because COVID-19 vaccines are ‘experimental’ and because mandates undermine the voluntariness of informed consent.

2.2. Response

COVID-19 vaccines used in practice and involved in vaccination mandates are either authorized or fully approved by national regulatory authorities. Hence, they are not experimental and not part of research, and thus not covered by the Nuremberg Code. Taking approved medicines prescribed or used as a matter of regular medical or public health practice does not constitute an experiment or research in any common understandings of the terms.

But what of the fact that COVID-19 vaccines are still being studied? All medicines undergo on-going study without being considered experimental. The study of medicines does not cease once evidence regarding their safety and efficacy has met the standards of regulatory approval and are used in regular clinical and public health practice. For instance, a drug’s effectiveness is often compared to other interventions. But this does not render those medicines ‘experimental’ and subject to regulations for human subjects research.

Ultimately, whether something is called ‘experimental’ is arguably irrelevant and unhelpful when evaluating the ethics of vaccination mandates because this is a term that could include everything from first-in-human use to off-label use to medicines authorized for emergency use. Each of these has different evidentiary standards, requiring different forms of ethical scrutiny, and so should be assessed accordingly. The mere charge of being ‘experimental’ is therefore of little or no moral importance; instead, what should matter from a moral perspective is whether there is sufficient causal evidence and a positive risk-benefit ratio to justify the use of the medicine in practice [3]. In practical terms, approval or authorization by a national regulatory authority indicate when this condition has been satisfied.

Finally, this objection seems to be confused because no country has in fact legally recognized the Nuremberg Code for the ethical conduct of research. Consequently, a ‘violation’ of the Nuremberg Code would represent a violation of principles of historical ethical importance, not a violation of a law or regulation (e.g., actual regulations governing research or laws concerning informed consent for vaccination).

3. Mandatory vaccination is coercive

3.1. Claim

Coercive policies use force or threats to compel individuals to do something they would not otherwise do [4]. Mandatory vaccination compels people to get vaccinated by, for instance, threatening them with job loss or a fine if they aren’t vaccinated, and are thus coercive, and hence, unethical.

3.2. Response

People are routinely compelled to do things they would not otherwise do under threat of punishment, including paying taxes, heeding speed limits, and showing up to work on time. If one considers these to be examples of coercion, then the power wielded by governments and employers is commonly ‘coercive’ power. Consequently, the mere charge of coercion is not enough to conclude that an activity is necessarily ethically wrong. Instead, opponents of vaccination mandates should explain why the use of coercion is unjustified, for example because it is not necessary or proportionate to achieve an important objective, because the ethical costs of coercion outweigh the goods that can be achieved through its use, or because its consequences would be so severe as to negate meaningful choice [5].

Conversely, ethicists sometimes define coercion more narrowly as a state of affairs where people are made worse off no matter which choice they take (where ‘worse off’ may be understood both in terms of becoming materially worse off or becoming worse off by virtue of interference with one’s rights, but not simply disliking one’s choices) [4], [5]. The classic example is the thief with a gun demanding “your money or your life.” If one believes people are not worse off for having obeyed tax policies, speed limits, and work requirements, or because such activities are justified by people’s consent to the overall scheme of society, one might conclude these cases do not actually constitute coercion. This is reflected in the claim that “if the mafia threatens to destroy your property if you fail to pay protection money, this threat will count as coercive; but if the just, well-regulated state threatens to confiscate your property unless you pay taxes, this threat is arguably not coercive.” [6]. Hence, on this account, mandatory vaccination would be coercive only if people were made worse off no matter which option they choose. Consequently, on this view, opponents of mandatory vaccination should show why all options they are presented with, including being vaccinated with all accommodations or exemptions for medical or religious reasons, makes people worse off (appreciating that no policies, e.g., tax policies, speed limits, etc., carry no burden at all). And as previously noted, even if one is successful in arguing that mandatory vaccination is coercive, one must still argue why that use of coercion is ethically objectionable, and hence, unjustified.

4. Mandatory vaccination violates informed consent

4.1. Claim

Vaccination is a medical intervention for which there is an ethical and legal requirement to obtain informed consent, which must be given voluntarily. Mandatory vaccination violates informed consent because the consent is not voluntary.

4.2. Response

Mandatory vaccination and laws requiring informed consent have co-existed for decades, strongly suggesting that mandatory vaccination does not, or at least need not, undermine legal requirements of informed consent. Mandatory vaccination would be involuntary if it were truly compulsory; that is, a forced injection. But typically, mandatory vaccination policies tend to require that one be vaccinated as a condition of work or to use a service. Do these conditions undermine the voluntariness of informed consent?

Requirements to get a medical intervention exist in many situations without violating informed consent. As an extreme example, doctors staying the winter at an Australian Antarctic station are required to prophylactically have their appendix removed [7]. In some instances, organ transplant patients are required to have various vaccines, such as the hepatitis B vaccine. While these examples share few features with vaccination employment conditions, they are analogous insofar as they illustrate how requirements to get a medical intervention as a condition to do something else, like work in a particular setting, need not vitiate the voluntariness of informed consent. By making a voluntary decision to stay the winter at an Australian Antarctic station or get a transplant, a person has made a choice to accept the associated required medical intervention. There is no requirement to get an organ transplant or stay at an Australian Antarctic station. While there may be compelling reasons to do so, a patient remains free to refuse consent to those conditions.

The important moral sense in which informed consent to be vaccinated is voluntary is if one is able to visit a vaccination clinic, experience no pressure to be vaccinated, and be free to walk away at any point without getting vaccinated. That one has a compelling reason to visit the vaccination clinic and get vaccinated does not necessarily mean the voluntariness of their consent has been undermined.

5. Mandatory vaccination is discriminatory

5.1. Claim

Mandatory vaccination imposes restrictions or sanctions on individuals who are unwilling to be vaccinated. This discriminates against people just because they are unvaccinated.

5.2. Response

Differential treatment is not inherently discriminatory in the important moral sense of the term. For example, employment conditions routinely impose requirements of education, skills, or medical procedures. These lead to the unequal treatment of people who belong to different groups. But this does not necessarily constitute discrimination that is morally objectionable, and hence, prohibited by law—that is, wrongfully imposed disadvantageous treatment—because the distinction is not arbitrarily related to a characteristic the person does not control or that is unrelated to job performance, such as sex, race, sexual orientation, or religion. Employment conditions become discriminatory when they make distinctions between people on grounds that are unrelated to job performance or occupational health and safety. Vaccination status on its own is not considered discriminatory because it is modifiable and can reflect a bona fide requirement of occupational health and safety.

Where vaccination status could be construed as discriminatory in the important moral and legal senses is when it is meaningfully connected to grounds otherwise protected from discrimination, such as disability or religion [8]. Consequently, vaccination mandates typically provide reasonable accommodations to avoid discrimination on these protected grounds. But this obligation is not absolute. If the accommodation puts others at risk of harm, the duty to accommodate may be limited. This is why some jurisdictions, like the state of Mississippi, maintain that “exemption from required immunizations for religious, philosophical, or conscientious reasons is not allowed.” [9]. Moreover, some human rights agencies have noted that while discrimination based on religious beliefs (i.e., ‘creed’) is prohibited on human rights grounds, personal preferences or singular beliefs about vaccination do not amount to a creed and thus do not constitute a protected ground upon which discrimination is prohibited [8].

6. Mandatory vaccination infringes civil liberties

6.1. Claim

The imposition of direct or indirect restrictions or sanctions via vaccination mandates interferes with civil liberties, including the right to liberty, privacy, and bodily integrity, which renders them unethical.

6.2. Response

Civil liberties are not absolute and can be justifiably limited. This is reflected in the adage “my right to swing my fist ends where your nose begins.” This idea is also commonly enshrined in law and constitutions, where a balance is effected between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed civil liberties. Consequently, the mere charge that vaccination mandates infringe civil liberties is not enough to conclude they are necessarily ethically wrong. In fact, mandatory vaccination could in some cases advance civil liberties. As the American Civil Liberties Union argues: “Far from compromising civil liberties, vaccine mandates actually further civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of color hit hard by the disease.” [10]. Opponents of vaccination mandates should instead argue how vaccination mandates are more than minimally impairing of rights and that the overall impact on a person’s rights is unnecessary or disproportionate to achieve the stated objectives of the mandate [11].

7. Conclusions

The COVID-19 pandemic has taught the world many lessons, including about the ethics of mandatory vaccination. Many of the arguments frequently raised against mandatory vaccination represent unsophisticated claims that, if not significantly modified to engage the ethical contours related to the approval of medicines, coercion, informed consent, discrimination, and civil liberties, should not be taken seriously. Moreover, we should not accept these unsophisticated claims as ‘shorthands’ for more sophisticated ones, whereby we are expected to ‘fill in the blanks’ about how, for example, one’s mere charge of coercion or discrimination entails the sorts of arguments that may give that charge greater moral force. Such arguments must be made explicit. To be clear, the five arguments against mandatory vaccination presented in this paper are bad arguments (but are nonetheless common). They can be improved to become more forceful. But as presented, they do not supply the necessary elements to be convincing, and thereby distract from more nuanced arguments that carry greater force and overshadow other important ethical concerns that have by comparison received little attention, such as concerns related to the potential negative impacts vaccination mandates may have on equity and public trust and how those impacts might be mitigated.[1] It would be a shame if when the next pandemic occurs the world rejects the possibility of vaccination mandates on the basis of the superficial claims identified in this paper rather than engaging with more sophisticated arguments for and against their use.

8. Author statement

All authors attest they meet the ICMJE criteria for authorship.

Declaration of Competing Interest

The authors declare the following financial interests/personal relationships which may be considered as potential competing interests: MJS is an uncompensated Expert Advisory Member of the World Health Organization (WHO) COVID-19 Ethics & Governance Working Group, WHO Expert Group on Ethical Considerations of Social Listening and Infodemic Management, Public Health Agency of Canada Public Health Ethics Consultative Group, and Ontario Public Health Emergencies Science Advisory Committee, and from 2020-2021 served as a compensated member of Ontario’s COVID-19 Vaccine Distribution Task Force. EJE reports the following: UNESCO Global Conference uncompensated speaker; School of Pharmaceutical & Biotech Business uncompensated speaker; NIH Demystifying Medicine Series uncompensated speaker; ASPO 45th Annual Meeting uncompensated speaker; Blue Cross Blue Shield uncompensated speaker; National Health Equity Summit uncompensated speaker; The Galien Foundation uncompensated speaker; Temple Shalom Chicago speaker series uncompensated speaker; AIFA Italian Medical Agency uncompensated speaker; Rainbow Push Coalition/CEF uncompensated speaker; IDSA uncompensated speaker, personal fees from Rise Health, travel fees from The Galien Foundation; Vin Future uncompensated speaker;  personal fees from Well Sky; personal fees from Rightway; Brown University uncompensated speaker; personal fees from Signature Healthcare Foundation; Organisation for Economic Cooperation & Development uncompensated speaker, personal fees from Healthcare Leaders of New York; 21st Population Health Colloquium uncompensated speaker; personal fees from Medimpact; American Academy of Arts & Sciences uncompensated speaker; Village MD uncompensated speaker; The Galien Foundation uncompensated speaker; University of Sydney Australia uncompensated speaker; personal fees from Massachusetts Association of Health Plans; Virtahealth uncompensated speaker; Tel Aviv University uncompensated speaker; American Philosophical Society uncompensated speaker; personal fees from Princeton University; personal fees from Philadelphia Committee on Foreign Relations; Health Action Alliance uncompensated speaker; personal fees from Yale University Grand Rounds; personal fees from Hartford Medical Society; UCSF uncompensated speaker; Ichan School of Medicine uncompensated speaker; University of Minnesota uncompensated speaker; IPHS Addis Conference uncompensated speaker; personal fees from AAHC Global Innovation Forum; personal fees from HMSA & Queens Health System; Faith Health Alliance Project uncompensated speaker; travel fees from Macalester College; CDC Learning event uncompensated speaker; travel fees from Oak CEO Summit; American Academy of Political & Social Science uncompensated speaker; Primary Care Transformation Summit uncompensated speaker; 16th World Congress of Bioethics uncompensated speaker; Blue Cross Blue Shield Research Health Alliance uncompensated speaker; personal fees from Advocate Aurora Health Summit, travel fees from DPharm Conference; personal fees from UPMC Shadyside Medical Center; ASCO Quality Care Symposium uncompensated speaker;  travel fees from UCSF Department of Urology Grand Rounds; personal fees from Advocate Aurora Health; personal fees from Cain Brothers Conference; personal fees from Bowdoin College; Brookings Institution uncompensated moderator;  travel fees from Galien Jerusalem Ethics Forum; non-financial support from HLTH 2022 Las Vegas; National Academies Forum on Microbial Threats uncompensated speaker; National University of Singapore uncompensated speaker; Williams College uncompensated speaker; NIH Grand Rounds uncompensated discussant, travel fees from HMSA; Stanford Graduate School of Business uncompensated speaker; World Bank uncompensated panelist; travel fees from Tel Aviv University; Serving on the following boards: Board of Advisors Cellares; Advisor Clarify Health; Unpaid External Advisory Board Member Village MD; Occasional Advisor Notable; Advisory Board Member JSL Health; Advisory Board Member Peterson Center on Healthcare; Special Advisor to Director General WHO; Expert Advisory Member WHO COVID-19 Ethics & Governance Working Group; Advisory Board Member Biden's Transition COVID-19 Committee; Advisory Board Member HIEx Health Innovation Exchange Partnership sponsored by the UN Geneva.

Data availability

No data was used for the research described in the article.