‘Vaccine Passports’ Draw Debate Over Medical Necessity and Ethics

According to critics, such provisions amount to forced vaccinations that will violate privacy and civil liberties and undermine trust in public-health authorities.

A debate has ensued over ‘vaccine passports.’ This illustration photo taken in Los Angeles on April 6 shows a person looking at the app for the New York State Excelsior Pass, which provides secure, digital proof of a COVID-19 vaccination, in front of a screen showing the New York skyline. As the United States' vaccination campaign accelerates, so-called vaccine passports are gaining traction despite political divisions and privacy and freedom concerns.
A debate has ensued over ‘vaccine passports.’ This illustration photo taken in Los Angeles on April 6 shows a person looking at the app for the New York State Excelsior Pass, which provides secure, digital proof of a COVID-19 vaccination, in front of a screen showing the New York skyline. As the United States' vaccination campaign accelerates, so-called vaccine passports are gaining traction despite political divisions and privacy and freedom concerns. (photo: CHRIS DELMAS / AFP via Getty Images)

After a year of wearing masks, social distancing and other COVID-19 restrictions, some Americans are pushing back against proposals to require “vaccine passports.” 

And for Catholics, the issue gained traction last week when the University of Notre Dame announced that it was requiring all students who are coming to campus for the fall 2021 semester to be fully vaccinated. 

Advocates of the vaccine passports say they are an effective means of protecting the public from the spread of the virus and putting those who have been vaccinated at ease. But opponents say they amount to forcing vaccinations, which should be an individual decision, and will diminish trust in public-health authorities and violate privacy and civil liberties. 

Already in place in Israel and China, the requirement to present proof of COVID vaccination for access to businesses, transportation, schools and entertainment venues appears to be gaining traction in the United States. Several universities in the U.S. — including Cornell, Brown and Rutgers — have, like Notre Dame, made proof of vaccination a condition for enrollment in fall classes, and New York state is offering what for now is voluntary participation in the Excelsior Pass, which provides digital proof of vaccination or negative COVID test results. 

Additionally, Jet Blue and United Airlines are testing the CommonPass app, a project of the Commons Project and World Economic Forum that claims to validate COVID status without revealing other health information. And the Miami Heat basketball team has arranged for separate sections for vaccinated fans, a move other NBA teams reportedly are considering. 

Although the Biden administration has said it is leaving the matter of vaccine passports up to the private sector, it is reportedly working with private companies to make them available

In an executive order on COVID safety in domestic and international travel signed in January, Biden called for “assessing the feasibility of linking COVID vaccinations to International Certificates of Vaccination or Prophylaxis (ICVP).” 

Pushback already has come from several Republican governors, chiefly Florida’s Ron DeSantis, who has issued an executive order prohibiting business and state agencies from requiring vaccine passports of customers or patrons. The order states that vaccine passports reduce individual freedom and harm patient privacy and that making them a condition of participation in everyday life would create two classes of citizens based on vaccination. 

Similar orders applying to state government and/or institutions have been signed by Idaho Gov. Brad Little, Utah Gov. Spencer Cox and Texas Gov. Greg Abbott. Mississippi Gov. Tate Reeves and Georgia Gov. Brian Kemp have said they do not support vaccine passports. The American Civil Liberties Union has also raised concerns about the passports and suggested that the nation’s priority now should be equitable distribution to vaccinate as many people as possible to reach herd immunity. 

 

Major Ethical Questions

Joseph Meaney, president of the National Catholic Bioethics Center (NCBC), who holds a doctorate in bioethics, told the Register that vaccine passports raise real ethical questions, including potential invasion of medical privacy. He said the center has been contacted by people saying they don’t want to take the vaccine but are being pressured by, for example, administrators of nursing homes where they live. 

“We tell them they have the right to resist,” Meaney said, “but I do think there are a lot of people eager and willing to take the vaccine.”

Given that, he said, putting a requirement in place is liable to make hesitant people more suspicious, including those from minority populations that have a history of negative interactions with public-health officials. 

Meaney said many health professionals also are uncertain about the COVID-19 vaccines and prefer to rely on other measures to keep themselves safe. “We’ve had a wide societal consensus that certain safety measures and precautions make sense. … Forcing people to have a medical procedure they don’t want is one step further than that.” 

Meaney said the Catholic Church, in a December note from the Congregation for the Doctrine of the Faith, held that the decision to get a vaccination is an individual one and must be voluntary: “It is not a moral obligation and therefore requiring it is clearly going too far.” 

He said for public authorities to tell people they will not be forcibly injected but will not be allowed to do certain things if they are not is a back-door requirement that goes against the freedom that needs to be part of such a decision.

The vaccine passports being discussed and implemented in some places like Israel, Meaney said, differ from the vaccine requirements imposed on visitors to certain foreign countries, in that the latter are public-health safety measures for travelers and do not apply to the population inside the country. 

“These are much less invasive than what is potentially the case [with COVID vaccine passports],” Meaney said. 

Eric Sammons, the editor in chief of Crisis Magazine, who has broached the subject of the passports on Twitter, agreed. He told the Register in an email that there is a huge difference between one’s right to enter a foreign country as a noncitizen and being able to go to a local grocery store. 

“Further,” added Sammons, “forcing those who have very limited risk to get a new, lightly tested vaccine in order to participate in society is a clear violation of their liberty.”

Sammons said he sees the vaccine passports as creating a caste system in which certain people have more rights than others. 

“If people can be denied access to various events and businesses due to their personal decision not to receive a vaccine, then there is really no limit to what can be forced upon us,” he said. 

 

Wrong Medical Approach?

Martin Kulldorff, professor of medicine at Harvard Medical School, has other concerns about the passports, namely, their possible negative effect on public confidence in vaccines overall and trust in public-health officials. 

Kulldorff told the Register via email that although he supports the COVID-19 vaccine, particularly for the vulnerable elderly, he opposes making the shots mandatory through vaccine passports. 

“There is more evidence for lasting immunity from natural infection than from COVID-19 vaccines, and those with prior COVID-19 infection do not need to be vaccinated now,” he said. “If health authorities force people to be vaccinated when it is not needed, why should the public trust the health authorities on other topics? Why would they trust them about other vaccines?” 

Furthermore, Kulldorff said, he is concerned that pressure to introduce COVID-19 vaccine passports will harm efforts to build trust in other vaccines. 

“This has largely been successful, and vaccine uptake and confidence has been very high in the United States, saving many lives,” he said. “Those arguing for vaccine passports pose a much greater threat to vaccine uptake and confidence than the small group of so-called anti-vaxxers ever did.” 

Kulldorff also opposes the passports because they have the potential to keep those most in need from getting the COVID vaccine. 

“It is disturbing to see low-risk young adults bragging on social media about getting vaccinated while my 86-year-old neighbor down the street has not gotten her shot yet and while very few older people in the developing world have been vaccinated against COVID-19,” he said. 

He said this is due in part to the public-health system’s failure to convey accurate information about who was at most and least risk from COVID. 

Said Kulldorff, “While anyone can get infected, there is more than a thousandfold difference in the risk of death between the old and the young. For people in their 70s and 80s, COVID-19 is a very serious disease.” 

Yet, Kulldorff said, universities like Cornell, his alma mater, are imposing what he calls an unethical and immoral vaccine requirement. 

“Many older people around the world have not yet been vaccinated, and every vaccine given to a young, extremely low-risk Cornell student means one less vaccine for an older, high-risk person,” he said.

 

Religious-Liberty Issues

If governments, schools, businesses or other entities demand proof of vaccinations — as the University of Notre Dame apparently will, although the university’s vaccine requirement announcement also advised it “will accommodate documented medical or religious exemptions” — there are bound to be legal challenges. 

Stephanie Taub, senior counsel at the First Liberty Institute, told the Register that she and her colleagues are watching the issue very closely and urging people who are concerned about their religious rights being violated to reach out to the institute.

Some of those who have contacted First Liberty with such concerns have cited the use of abortion-derived cell lines in the vaccines or their development. Although there are typically religious exemptions for vaccines required by schools, Taub said the COVID situation is unique when it comes to the private sector. 

“In many ways,” she said, “the law in this area is not fully developed, although there may be some general religious liberty principles that can be applied.” 

Although she said she was surprised by the Biden administration’s decision not to institute a vaccine passport, she said that, historically, it has not been the place of the federal government to impose vaccine mandates. 

“It has been the role of state and local government because they are the ones in charge of health and safety laws,” Taub said.

Lee Strang, professor of law at the University of Toledo in Ohio and an expert on constitutional law, said the federal government could use its authority over interstate commerce to prohibit Americans and others from traveling across state lines without a vaccine passport. However, he said that would require Congress to pass such a law, which seems unlikely, given the controversial nature of vaccine passports. 

Asked whether the president could sign an executive order to require vaccine passports, Strang said that, in light of the enormous growth of the power of the presidency over the last 80 to 90 years, it is conceivable a president could issue an order tying vaccine mandates to federal funds. Additionally, he said, the president could exercise his authority over air travel to require vaccine passports for travel to each state. 

Businesses, he said, also are likely well within their rights to require vaccine passports since they can set the terms with which they engage in the marketplace, provided they do not discriminate on the basis of race, gender and age or sexual orientation. Likewise, employers can require vaccines, Strang said, adding that the Equal Opportunity Employment Commission (EEOC) just released guidelines confirming this as long as antidiscrimination laws are not violated. 

Regarding schools, Strang said most states have exemptions for vaccine requirements for religious believers and conscientious objectors that should apply to the COVID vaccine. 

 

‘Line in the Sand’

Those who have religious objections to taking the vaccine may be protected by state constitutions that contain clauses providing for the free exercise of religion but also by the Religious Freedom Restoration Act (RFRA). Also, 42 states have their own RFRAs, which Strang said provide significant protection against government restrictions for religious believers. However, these would not apply to private business. 

“What I would say is that our legal system offers some protection to religious believers. I think where the real protection is going to come from is in people speaking with their state representatives to pass legislation that prohibits state entities and private businesses from restricting access based on vaccine status.”

Said the NCBC’s Meaney, “There is a kind of line in the sand, in the sense that there’s a real reluctance and a real conscientious objection people have to some of these vaccines because of their connection to abortion-derived cell lines, so that it really does come down to respecting people’s consciences. Any kind of mandate that makes it hard to live without getting the vaccine goes beyond the pandemic to a human-rights situation.”

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