David M. Beatty is a professor emeritus at the University of Toronto Faculty of Law and the author of Faith, Force and Reason: An Armchair History of the Rule of Law, which will be published in spring 2022.
COVID-19 is a serial killer. In just two years, it has taken the lives of more than five million people.
It is also a fact that unvaccinated people are much more likely to become infected and spread the disease. Science has proven that unvaccinated bodies are ideal incubators where new variants can grow and mutate. While we now have vaccines and medicines that can keep deaths and cases that require hospitalization under control, health care systems continue to be overwhelmed due to insufficient vaccination rates.
Thus, we have reached a stage when governments must ask whether compulsory vaccinations are the only way the disease can be defeated.
Vaccine mandates are now being debated all over Europe. Austria, having faced record COVID-19 case numbers in November while having one of the lowest vaccination rates in Western Europe, has decided to make vaccinations compulsory in February.
As a matter of law, vaccine mandates are unquestionably legal. In law, the only question is when, not if, they should be introduced.
In 1905, the Supreme Court of the United States ruled emphatically in favour of vaccine mandates. The judgment was written by John Harlan, who is regarded as one of America’s greatest judges.
As a general principle, Mr. Harlan said that when a community is faced with an outbreak of a lethal disease, at some point mandating vaccinations becomes a matter of self-defence.
The law of self-defence is among the earliest laws known in human history and is universally recognized in every country in the world today. It is governed by a principle of proportionality that requires defenders to use the least amount of force that will keep them safe. They must try more moderate and measured tactics before they pull out the heavy artillery.
The same logic governs during a pandemic. Before making vaccinations compulsory, governments must try vaccine passports and more targeted mandates at work, in schools, spas, restaurants and arenas. Quarantining people in their homes is another, less drastic alternative to stabbing them with a needle.
There is, of course, always the possibility that less invasive tactics won’t do the trick. At some point, if the virus continues to mutate and spread, it is reasonable to conclude that compulsory vaccinations are the only way it can be stopped.
Mr. Harlan thought that the city of Cambridge, Massachusetts had reached that point in fighting an outbreak of smallpox it confronted in 1902. The government of Austria has now come to the same conclusion.
Even when compulsory vaccinations seem like the only solution, hard core anti-vaxxers will still object on the ground that vaccines are not always effective and in some cases may produce dangerous side effects including strokes, blood clotting and damage to the nervous system. They will say they have the same right to defend themselves against an assault on their bodies by the state as do vaccine advocates against the threat posed by their unvaccinated neighbours.
When judges are asked to decide cases that involve conflicts of rights, they try to strike a fair balance. To maintain their impartiality in finding the right balance, judges employ the same logic that is built into the scales of justice. The rights of vaccine advocates and vaccine skeptics are placed on opposite sides of the scales.
To assess their weights, judges look to see what impact an adverse ruling will have on each of the parties. How much harm will each of them suffer if they lose the case? What proportion of their lives will be adversely affected?
Measured this way, the difference in the weights of the interests of vaccine advocates and skeptics is striking: the certain death of many compared to the very small chance of a tiny number of people having to endure what in some cases could be a severe allergic reaction.
In rare cases, the balance may tip in a skeptic’s favour and exceptions may have to be made. Some people may suffer a medical condition that makes it more likely they will have what Mr. Harlan described as a “cruel or inhumane” reaction to the vaccine.
In the vast majority of cases, however, when they are placed on the scales of justice, the lives of COVID-19 victims will outweigh the pain and suffering of their skeptical neighbours. COVID-19 victims stand to lose the whole of their lives; the harm vaccine skeptics suffer is not fatal.
Vaccine mandates are legal because the balance they strike is fair. COVID-19 has taken enough lives; the time has come to stop the killing.
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