Vaccination Mandates, Physically Forced Vaccination, and Rationing in the Intensive Care Unit: Searching for Ethical Coherence in the COVID-19 Pandemic

The following is an editorial that can be found in a future issue of the American Journal of Bioethics.

Background

Vaccine mandates are coercive because they impose penalties such as fines, criminal sanctions, or job loss. However, they are not as coercive as physical force (Shachar 2020). Mandates can differ with respect to populations to which they apply, such as children, professionals, or adults, the strength of penalties levied when violated, the rigor of enforcement, and the nature and scope of exemptions they allow (Shachar 2020). 

For a long time, German politicians agreed that there should be no COVID-19 vaccination man­date. However, sluggish vaccine uptake and rapidly filling intensive care unit (ICU) beds in certain federal states have led to a growing debate over proposals to encourage vaccine up­take including mandates. In parallel, a debate over whether COVID-19 vaccination status should be used for rationing scarce ICU beds has risen but Ger­man politicians have almost uniformly rejected this principle so far. Physically forced vaccination appears even less agreeable.

The purpose of this editorial is to discuss the ethical coherence of the three positions, that is, support of vaccination mandates for the general population on the one hand and re­jection of physically forced vaccination and vaccination status as a triage factor in ICUs on the other. To search for coherence, I apply two of the three major approaches in normative ethics (Hursthouse 2018), deontology and utilitarianism. Given the influence of the German philosopher Immanuel Kant in Germany, I will dis­cuss Kantian ethics as a major branch of deontology.

Ethical underpinnings of vaccination mandates

Utilitarianism

Vaccination mandates are ethically justified by utilitarianism because they are assumed to contribute to the greater good. This supposition holds because their expected net medical benefit (i.e., the benefit for self and others minus the harm) is positive as a result of lives saved, improved quality of life, and avoided long COVID. Even if the risk of acquiring and transmitting infection due to nonvaccination is small, the large harm of infection justifies vaccination from a utilitarian point of view (cf. Giubilini 2018).

Additional reasons why vaccination mandates enhance utility are a reduction in ICU utili­zation, which avoids cancellation of elective procedures, higher economic growth, and more freedom (autonomy) due to fewer restrictions. Moreover, as the majority of German citizens are in favour of vaccination mandates (Tagesschau.de 2021), the overall preference satisfaction is heightened. In addition, punishment due to noncompliance may act as a general deterrence (Scheid 1983) and thus increase the vaccination rate.

Nevertheless, these benefits must be balanced against the potential disutility of unvaccinated individuals owing to reduced in­dividual autonomy and infringement of bodily integrity. In this regard, it is important to note, however, that unvaccinated individuals represent a minority in Germany. Disutility may also result from mistrust in the German government, particularly given its initial re­jection of vaccination mandates. Disutility will be heightened if it leads to turmoil and division of society.

Kantian ethics

Vaccination mandates are also justifiable by Kantian ethics (in agreement with Richardson and Weaver (2016)). Kant’s first formulation of the Categorical Imperative es­tablishes that we have a perfect duty not to act by maxims that result in logical contradiction when we attempt to universalize them. The maxim to abstain from vaccination, when univer­salized, results in a logical contradiction. This statement holds because if autonomous individu­als are allowed to violate autonomy in self and others by inflicting harm, we are imagining a world in which everyone is autonomous but also a world in which there is no autonomy. Hence, we have a perfect duty to vaccinate ourselves.

The second formulation of the Categor­ical Imperative concurs as vaccine refusers treats others, by inflicting harm, only as means to their own good, rather than as ends in themselves. This statement also agrees with Kant’s statement that the two formulations are different ways of saying the same thing.

Nevertheless, the duty to be vaccinated does not justify mandates by itself. After all, Kant’s views are frequently absolutistic in their objections to paternalism (Dworkin 2020). From these views, we must always respect the rational agency of other persons (Dworkin 2020). To deny an adult the right to make their own decisions, however, mistaken they are from some standpoint, is to treat them as simply means to their own good, rather than as ends in themselves (Dworkin 2020). Nevertheless, while the autonomous will is free, it is constrained by the requirements of duty (Beck 2006). According to Kant, the penal law is a Categorical Imperative (Kant 1797). This statement justifies the legality of vaccination mandates.

Ethical underpinnings of ICU triage

Utilitarianism

In principle, overriding the interests of patients is permissible from a utilitarian point of view if it increases total population utility (Gandjour 2003). Therefore, utilitarianism may support ICU rationing by vaccination sta­tus, as it may act as a general deterrence and increase the vaccination rate. Admittedly, there is a lack of empirical evidence that ICU rationing serves as an effective deterrent and thus is able to stimulate vaccination rates.

In addition, utilitarians may support ICU triage as it leads to lower ICU spending. To substantiate this argument would require a full-blown cost-benefit analysis considering the remaining life expectancy with and without ICU admission, however.

Kantian ethics

According to Kant, talionic equality should be the criterion for deserved punishment of wrongdoers. A fine, however, for insulting another person is inadequate because a rich person would be able to afford it (Kant 1797).

When applying talionic equality to murders and similar crimes, Kant states that punishment should be “proportionate to the intrinsic malevolence of the criminal”. This propor­tionality principle is not explicitly applied to less severe violations of moral law such as lying or stealing. Nevertheless, a Kantian might try to derive an account of degrees of wrong­ness from Kant’s principle of retribution by arguing that the greater the wrong, the greater the punishment (Calder 2005).

Kantian retributivism is applicable to vaccine refusers because the latter violate autonomy in the self and others by inflicting harm. Applying talionic equality to vaccine refusers in need of ICU care suggests that it is permissible to deprioritize vaccine refusers, causing an in­crease in the probability of death from ICU rationing. Of note, given Kant’s statement on the inapplica­bility of a fine, a fine for vaccine refusers as an alternative measure is not acceptable.

Ethical underpinning of physically forced vaccination

Utilitarianism

As interest in the greater good may outweigh the interests of a minority, utilitarians do not categorically reject physically forced vaccination (cf. Fisher 2017). Nevertheless, utilitarians need to acknowledge the potential for enhanced disutility compared to vaccination mandates. It may result from dissatisfaction and lack of acceptance even among the vaccinated as well as a larger probability of turmoil and division of society.

Kantian ethics

Kant supports the use of force to restrict freedom to enable freedom: “[I]f some use of freedom is itself an obstacle to freedom according to general laws (i.e., wrong), then the compulsion that is opposed to it is, as a hindrance of an obstacle to freedom agreeable with freedom according to general laws, that is, just” (1797). While physical force is not explicitly mentioned, it appears to be a consistent remedy.

Discussion

This editorial analyses two major ethical theories, utilitarianism and Kant’s theory of ethics, with regard to their coherence with vaccine man­dates, physically forced vaccination, and ICU triage. Based on the two theories, a moral obligation to be vac­cinated exists.  

While the question of whether the state should enforce compulsory/mandatory vaccination addresses a different, although related issue, it is equally supported by the two the­ories. Importantly, this editorial shows that advocates of vaccine mandates based on utilitarian or Kantian points of view must, at least in principle, be willing to endorse ICU triage of vaccine refusers, as they otherwise would not be coherent. Nevertheless, both theories differ in terms of the range of penalties for noncompliance. Fines are permissible under utilitarian theory and include higher insurance premiums. However, they are excluded by Kantian ethics, which takes talionic equality as the guiding principle. Even physically forced vaccination may be ethically permissible on utilitarian and Kantian grounds and is justified by interest in the greater good and freedom, respectively.

It is important to acknowledge that from a utilitarian perspective, the transition from the absence of vaccine mandates on one extreme and physically forced vaccination at the other is continuous. Where on this continuum the utilitarian optimum is located depends on the expected degree of backlash and level of tolerance in the general population as well as the number of vaccine refusers.

If support of ICU triage and physically forced vaccination were perceived to be counterintuitive implications and unacceptable under all circumstances, ethical coherence may be a reason to abandon the support of mandates for the general population or to search for other principles and theories that support vaccine mandates but oppose ICU triage and physically forced vaccination. An account of morality that may be investigated in this regard is an autonomy-based conception of health care (Gandjour 2015, Gandjour 2021). According to the latter, allowing for the possibility of with­holding ICU care for reasons of personal responsibility needs to be balanced against the preferences of the general population and medical needs (Gandjour 2021).

In summary, supporting COVID-19 vaccination mandates while categorically rejecting physically forced vaccination and the use of vaccination status as a triage factor requires a theoretical basis that is not supported by major ethical theories. Ideally, the search for ethical coherence is not limited to COVID-19 vaccination and treatment strategies but considers a broader set of policy measures, including those that are unrelated to the pandemic.   

References

1. Beck, G. (2006). Immanuel Kant’s Theory of Rights. Ratio Juris, 19(4), 371-401.
2. Calder, T. (2005). Kant and degrees of wrongness. Journal of Value Inquiry, 39(2), 229.
3. Douglas T, Forsberg L, Pugh J. Compulsory medical intervention versus external constraint in pandemic control. J Med Ethics. 2021;47:e77.
4. Dworkin, Gerald, “Paternalism”, The Stanford Encyclopedia of Philosophy (Fall 2020 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2020/entries/paternalism/>.
5. Fisher BL. From Nuremberg to California: Why Informed Consent Matters in the 21st Century. October 24, 2017. https://www.nvic.org/nvic-vaccine-news/october-2017/why-informed-consent-matters-in-21st-century.aspx
6. Gandjour A, Lauterbach KW. Utilitarian theories reconsidered: common misconceptions, more recent developments, and health policy implications. Health Care Anal. 2003 Sep;11(3):229-44.
7. Gandjour A. Resource allocation in health care and the role of personal autonomy. Gesundheitswesen. 2015 Mar;77(3):e44-50.
8. Gandjour A. Autonomy, Coercion, and Public Healthcare Guarantees: The Uptake of Sofosbuvir in Germany. Camb Q Healthc Ethics. 2021 Jan;30(1):90-102.
9. Giubilini A, Douglas T, Savulescu J. The moral obligation to be vaccinated: utilitarianism, contractualism, and collective easy rescue. Med Health Care Philos. 2018;21(4):547-560.
10. Hursthouse, Rosalind and Glen Pettigrove, “Virtue Ethics”, The Stanford Encyclopedia of Philosophy (Winter 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2018/entries/ethics-virtue/>.
11. Kant, Immanuel: Die Metaphysik der Sitten. Erster Teil. 1797.
12. Richardson, S., & Weaver, K. (2016). Vaccinate-or-mask: Ethical duties and rights of health care providers in obtaining or refusing the influenza vaccination. Clinical Ethics, 11(4), 182-189.
13. Scheid, D. E. (1983). Kant’s retributivism. Ethics, 93(2), 262-282.
14. Shachar C, Reiss DR. When Are Vaccine Mandates Appropriate? AMA J Ethics. 2020 Jan 1;22(1):E36-42.
15. Tagesschau.de. Mehrheit für Impfpflicht und härtere Regeln. Stand: 02.12.2021. https://www.tagesschau.de/inland/deutschlandtrend/deutschlandtrend-2845.html

Acknowledgment

I am grateful to Don Scheid for discussing aspects of this paper.

Afschin Gandjour, MD, PhD, MA is a Professor of Health Management at Frankfurt School of Finance & Management.