Vaccine mandates should not be seen as anything other than a severe step responding to a dire situation. This post is aimed at responding to some of the arguments I’ve been hearing from the pro-mandate side (which I’m on), that I worry are concerningly quick to dismiss the human rights concerns that arise here.
The dialogue in this area is not helped by some of the loudest opponents of the mandates putting forward illogical and non-reality-based arguments. Lots of people have been doing important work responding to these claims and thinking about how to talk to people who are buying into them. The public debate has become polarized and there’s relatively little nuanced discussion about the justification for vaccine mandates.
I’m vaccinated and supportive of the mandate measures. But I also think it’s important not to dismiss the severity of these measures, especially as we navigate ourselves through the evolving pandemic. I will begin by providing a brief background to human rights, and move on to some of the anti-anti-mandate arguments I’ve seen that I think gloss over the human rights implications a little bit too much.
Human rights
Human rights philosophy (and human rights law) can be seen as growing out of two things. First, aspirational thinking about how we can build a society where people can flourish as human beings and live good lives while recognising that people can have different conceptions of what a good life looks like. Second, awful things that governments have done to people, often in the name of the “greater good” and sometimes with majority support. It’s generally groups with less power in society – women; disabled people; racial, ethnic, political, ethical and religious minorities; and so on – that are on the receiving end.
The right to refuse medical treatment can be seen as connected to the right to bodily autonomy (the right to decide what happens to your body).
Along with the right not to be subjected to medical or scientific experimentation, it’s also a response to things like forced sterilisation of minority groups; experimentation on prisoners of war and minorities in World War II; and the Tuskeegee Syphilis experiments in the USA. Closer to home, think of the Cartwright inquiry into treatment into National Women’s hospital, or the Royal Commission into Abuse in Care’s investigation into the use of electric shocks at Lake Alice.
Now I’ll have a look at some of the pro-mandate arguments I’ve seen in various places.
No one is losing any freedoms / with choices come consequences
No one is losing any freedom or having their rights infringed because people can still choose not to get vaccinated – it’s just that that has consequences for their employment
I don’t have much respect for this argument. Yes, the government is not literally compelling people to get vaccinated. But, if we care about rights and freedoms, we should care whether people are actually able to exercise their rights in practice, not just be satisfied that they exist on paper.
I do not think Alan Turing, for example, who ‘chose’ to undertake chemical castration as an alternative to prison after being prosecuted for homosexual acts, was genuinely able to exercise his right to refuse medical treatment. Perhaps a few other examples of this form of argument will illustrate how unsatisfying it is:
No one is losing any freedom, they’re just experiencing the consequences of their choice…
… if their sharing a social media post from a Union leads to their employer firing them
… if their decision not to take contraceptives means that the government won’t pay them social security
… if their decision to wear a crucifix in public means that they are barred from serving on a jury
The government has not attempted to make this sort of argument in the court cases about mandates. Rather, it has accepted that, as the court put it in one case:
[those] faced with the choice of being vaccinated or their employment being terminated suffer a sufficient imposition on their freedom of choice to engage the [legal right to refuse to undergo medical treatment]
Instead, the government has successfully argued that this is a justified infringement on rights – a limit “prescribed by law as can be demonstrably justified in a free and democratic society” as the NZ Bill of Rights Act puts it. That’s the space to have a useful discussion about vaccine mandates. That brings us to the next argument.
Rights aren’t absolute
Rights are not absolute and are qualified, especially in times of “serious civil emergency”
Your right to swing your fist ends where my nose begins
First, these are generally reasonable points to make in relation to vaccine mandate. There are a couple of missteps to watch out for though. Sometimes people just say “rights are not absolute” but don’t actually explain the reason for limitation. It’s also a mistake to assume that because an infringement is justified that it must not be a serious infringement. That an infringement on a right is not a serious one counts in favour of it being justified, and the courts will consider whether the measure in question impairs freedom more than necessary. But it does not follow from an infringement on a right being justified that it is a trivial infringement on the right in question.
Second, in relation to the general idea that human rights are not absolute, we need to consider the range of rights human rights instruments protect. I would hope, for example, that infringing on the right not to be subjected to tortureis always off the table, regardless of whether the government is responding to a pandemic, war, or terrorist threat.
With rights come responsibilities
People complaining about the vaccine mandates are focusing too much on rights and freedoms, without recognising that living in a society with other people also means taking on responsibilities that can limit freedom. Being vaccinated is a responsibility.
This is an important argument, especially since an extremely individualistic approach to rights and freedoms is at odds with a Māori world view. However, recognising the importance of bodily autonomy does not have to entail radical individualism, and achieving bodily autonomy in practice can require collective decision-making and action.
Where this argument can go astray is where it’s used by a dominant group to justify measure that benefit them, at the expense of limiting the freedoms of a minority. I don’t think that’s happening with vaccine mandates. But I could imagine, for example, employers arguing that the right to freedom of expression comes with the responsibility not to say anything that looks your employer look bad. Or a patriotic majority arguing that that right comes with a responsibility not to offend them by burning a flag in protest. Or, a nonreligious majority arguing that the right to manifestation of religion comes with a responsibility not to bother non-religious citizens by worshipping too loudly in public.
This is just another health and safety measure
We already accept that freedoms are limited in all sorts of ways for health and safety reasons
Yes, we have various laws that limit freedoms for health and safety reasons. However, some of these measures make more useful reference points for mandates than others.
We have a number of measures that are imposed for paternalistic reasons: seat belts, life jackets, bicycle helmets and skydiving licenses are all compulsory because they’re seen as good for the individual. I haven’t seen the rationale for the vaccine mandate being explained as “we’re threatening people’s jobs to nudge them towards getting vaccinated for their own good” – instead the rationale is the consequence of being unvaccinated for others.
That makes measures like prohibitions on drink driving and indoor smoking, and regulating things like who can drive and what food you can sell, more useful reference points. These measures involve limiting an individual’s freedoms because the way they exercise their freedoms can affect other people.
But, as Graeme Edgeler has pointed out, the “just another health and safety measure” can avoid engaging with the human rights issues here, and overlook that the right to refuse medical treatment is a protected under human rights law.
Why does this matter?
I’ve said that I think the mandate measures are justified, though they are a serious limit on an import freedom. So why does the way we talk about rights (or dismiss rights talk) in relation to the mandate matter?
It matters for the future of the mandates. If they are a severe response to a civil emergency, we might expect that they will eventually loosen or expire. There’s another possibility – perhaps what we are seeing is a paradigm shift away from a focus on individual decision-making towards public health and public good. If that’s the case, then vaccine mandates may remain, and we might see more vaccinations become compulsory. If that’s where we’re going as a society, then that’s a decision that should be made consciously and with discussion – and always bearing in mind the history of dark things that majorities have imposed on minorities “for the greater good”.
Second, a slipping of taking rights seriously here might dilute the power of rights talk, and the respect for rights, elsewhere. That matters for future issues where a minority’s freedoms are under threat.
Thanks to Colin Gavaghan for comments on a draft version of this piece.