Can Governments mandate that citizens take the COVID-19 vaccine?
Maybe.
Kinda.
Yes. Ish.
Governments can do all sorts of wild and amazing things. And what they can’t do today based on the number of vaccines available, they may be able to consider tomorrow when the situation changes.
But can they mandate that their citizens take the COVID-19 vaccine? And should they?
The Three Ws
For me, there are three considerations that we should have in mind when asking such a broad and wide question:
Which governments?
Which citizens? and
Which vaccine?
It is much more complicated than it seems on the surface. And we’re in the early days of these discussions.
Which governments?
Can the Jamaican government mandate that Jamaican citizens are to take the COVID-19 vaccine?
Perhaps.
Since other citizens live within the borders of Jamaica as well, could that mandate be extended to citizens of other countries? Permanent residents of Jamaica who have not yet gained citizenship?
Stickier. But not impossible.
These questions, however, depend on the big issue of bodily autonomy. Is your own government able to tell you what to do with your body? Is another government able to do that too? Are they allowed to put certain guidelines and principles in place to keep everyone safe?
International Law and the Responsibility of States to Keep Citizens Healthy and Safe
From an international law perspective, the International Covenant on Civil and Political Rights (ICCPR) in Article 6 says you have an "inherent right to life" and that inherent right has been extrapolated in various decisions to mean a good and dignified life.
The twin treaty to this, the International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 12(1) says that each person has the right to the "highest attainable standard of physical and mental health". That's an obligation that the State has to each and every single one of its citizens.
But how do you balance the treaty obligation to provide the highest attainable level of physical and mental health for all your citizens at a time when you have a global pandemic? And how do you carry out the responsibility to keep all citizens healthy and safe, while respecting the bodily autonomy of those who may not want to take a COVID-19 vaccine?
It is not only, however, a treaty obligation.
The Human Rights Committee in their General Comment No. 24 has indicated that there is a responsibility on the part of States to provide not only the bare right to life but support for the right to life and also the right to health. And both of those responsibilities they say, are part of customary international law.
Do All Governments have to care about your Bodily Autonomy?
The bodily autonomy question, therefore, becomes a huge question of WHICH government is responsible for you, depending on where you are. And your willingness to submit to the infringement of your bodily autonomy for a “good purpose”.
If you are a Jamaican living in Jamaica, the bodily autonomy question arises because you want to know if your own government can mandate that you take the vaccine. But if you go to Canada as a farmworker, can the Canadian government (a whole other government) mandate that you must receive a COVID-19 vaccine in order to enter the country?
And like that yellow vaccination book (the “International certificate of vaccination or prophylaxis”) that many people have if they have received the yellow fever vaccine, do you need to show that you have that sort of document for COVID-19?
A COVID-19 passport perhaps?
But if you don't have opportunities in your own country to get the vaccine, can you even be having bodily autonomy conversation in the first place?
We're having a conversation that is two steps ahead for places like Jamaica and other Caribbean countries. Currently, the issue that affects us is vaccine nationalism and not getting enough vaccines. We don't yet have the capacity to mandate vaccinations because we don't have enough vaccines for the approximately 2.7 million people living on the island. Settling this question of bodily autonomy and whether Governments can compel vaccination matters. Because what may not be possible before sufficient supplies of vaccines are available may become inevitable once they are.
Settling this question of bodily autonomy and whether Governments can compel vaccination matters. Because what may not be possible before sufficient supplies of vaccines are available may become inevitable once they are.
Antigua and Barbuda’s Prime Minister has already warned of the possibility of implementing a mandatory vaccination programme with incentives already being offered to encourage persons to take their first dose.
But let's say we get to the point where there are enough vaccines. There is a recent case that went before the European Court of Human Rights, Vavricka and others v The Czech Republic that considered mandatory vaccinations. There have, however, not been many other cases that have gone before international tribunals discussing mandatory vaccinations. A broader assessment based on the European Convention on Human Rights may, however, be useful to guide other jurisdictions.
Which Citizens?
Which citizens can a Government mandate to take the COVID-19 vaccine?
For which citizens are we having these bodily autonomy concerns? Various persons may, for very very many reasons besides not being comfortable with the vaccine or may not want to take the vaccine. They may have legitimate reasons and not legitimate ones. Some potential religious and moral objections have been raised by individuals who may not want to take the vaccines.
So which citizens are we talking about?
Is it the Jamaicans living in Jamaica that we should have this bodily autonomy concern about? Or, those who live outside Jamaica but with Jamaican passports who want to come into Jamaica? If you are a Jamaican citizen but you are not part of the regular vaccination thrust in Jamaica that happens in schools or workplaces, do you still need to have a COVID-19 vaccination?
Some groups may not be able to enjoy the same bodily autonomy as others
Bodily autonomy for specific groups of citizens as well is very important. There has been talk about certain categories of workers needing to take the vaccine more than others. Perhaps not for the general population but subcategories of individuals may have their bodily autonomy taken away from them.
Healthcare workers come to mind.
I spoke to the head of the Nurses Association, and asked her if there was a contemplation that all nurses would have to be vaccinated and if it would be mandatory for them. She said there was no contemplation just yet but there could be some in the future given the number of people that healthcare workers come into contact with and with the threat of spread for them being higher than other groups.
There is also talk about the military, police, critical staff, and teachers as well not having their bodily autonomy "respected" because of the situations they put themselves in and are placed in as a result of their jobs.
They too could be the subject of mandatory vaccinations. There are already concerns that vaccinated police officers could be at an advantage to receive promotions over unvaccinated colleagues.
Who else may need to get vaccinated?
Then you have the question of "who else should be an emergency worker or need to get vaccinated"?
If you are a delivery worker, a front desk worker, if you are a driver, a helper/housekeeper, or a cashier, by virtue of all the people you come into contact with, are you required to take the COVID-19 vaccine?
So the bodily autonomy question then comes into sub-categories of people who may be mandated or at least pushed or coerced into getting vaccinated.
Especially a helper or a household worker.
Many helpers indicated at the very start of the pandemic that their employers told that, once they came out of that house, they had been exposed to COVID-19 or had potentially been exposed to COVID-19 and would therefore lose their jobs. Could an employer then mandate then, in that context, that the household helper had to take the COVID-19 vaccine? And what would that mean?
And what happens if your bodily autonomy is subsumed under other practical considerations such as a job?
Speaking to the head of the business process outsourcing (BPO) sector association she said that BPOs in Jamaica are doing fine but a high and almost universal rate of vaccination of employees would be great way to show competitive advantage in Jamaica. This would mean fewer interruptions and less downtime for clients.
Bodily autonomy issues, therefore, may be subsumed under more practical concerns.
Like being able to afford food.
What about the children?
The issue of children is also a key one.
As of right now, there are trials underway with some of the vaccines but no vaccine has yet been authorized by the World Health Organisation (WHO) for use by infants or children.
The vaccine has only been tested in children above 16 years of age. Therefore, at this time, WHO does not recommend vaccination of children below 16 years of age, even if they belong to a high-risk group.
We generally have mandatory vaccinations for children in order to allow them to go to school but these happen when the child is an infant and can't talk. If you know any babies that spoke at 3 months and could share opinions on their care though, let me know! Right now, however, can we mandate that a vaccine be taken by infants or children where none currently exists?
Then you have older children. From about 6 -17 years old, the WHO has indicated that these children should be allowed not only the ability to consent to but to assent to healthcare. They must be given the opportunity to say yes and then be part of their healthcare decisions.
Now, what happens if a parent decides that the child is to take the vaccine and the child says no. Or if the child says yes and their parent decides that, for other reasons, the child cannot take the vaccine. Bodily autonomy issues come up all over in this sort of debate.
What if you cannot take the vaccine at all?
Then what about people who can't take the vaccines. There is a whole discussion about people needing the protection of the vaccine but needing everyone else around them to take it to be safe. Can they opt of taking the vaccine? Is bodily autonomy allowed for persons who have to show real and legitimate reasons like an allergic reaction or some sort of adverse reaction to the vaccine? We won't know, and we're not yet at that stage.
Which vaccine?
The final thing to consider is which vaccine?
When you are making a determination about any health care decision, many persons tend to like the idea of having options. Right now we have emergency use authorisations for the vaccines being used in Jamaica. And most countries have emergency use authorisations as well. The WHO calls it "emergency use listing" while the Food and Drug Administration (FDA) in the United States refers to it as an "emergency use authorisation".
It means we are at the stage where we have a public health emergency and you need to make a mechanism for novel health products like vaccines, a way to deal with them while balancing the risks and the benefits. It allows countries the safety and knowledge that they can go ahead. Everything hasn't been finished just yet but the WHO and the FDA see that it is safe and effective.
But with that emergency authorisation, it has meant that countries like Jamaica have had to indemnify vaccine manufacturers. At the end of January, Jamaica was informed by the Chief Medical Officer, that we were preparing the indemnity certificates for vaccine manufacturers were coming to Jamaica.
So, that's also an issue. Who takes responsibility after we take a COVID-19 vaccine?
Choose a vaccine from the many vaccines!
Right now we have more than 10 vaccines that have received emergency use authorisation around the world but here in Jamaica, we only have 2 (so far), the Astra Zeneca and the Moderna vaccines.
Globally, however, we have the Sinopharm vaccine from China, the Johnson & Johnson vaccine from the United States, Oxford-Astra Zeneca from the United Kingdom, the Moderna vaccine from the US, and the Pfizer-BioNTech vaccine from the US as well a host of other vaccines that are soon to be placed on emergency use lists.
Which one are you talking about when you discuss a “COVID-19 vaccine”? And if you want to take the vaccine, can you get a choice?
Can you say that, having read the reports on whichever vaccine, you think the efficacy is better for one over the other, that the side effects are less, or like the Johnson & Johnson vaccine, you only need one injection to be fully vaccinated and so that is the one you want? Can you make those sorts of determinations?
How many vaccinations are meant to be mandatory?
Many vaccines have booster shots months or even years later to maintain the efficacy of the vaccine.
So, how many vaccinations do we need to be mandatory?
Is it the first vaccine shot or the first two vaccine shots that protect you that are mandatory? Or are those booster shots mandatory? Or, if it is like the flu shot, do we have to take it every single year?
Then the big question of if you are creating a precedent for future pandemics and health emergencies. Are we allowing this to get by right now and then we may be setting a precedent we have not yet contemplated?
Final thoughts
Those are some of the big questions of bodily autonomy that come up. The balance for any State is such that they have to look at their international obligations, their domestic obligations, and look at what the people in their country want and consider to be important.
Public education will be key but it is a very sticky question.
Maybe governments can mandate that citizens and those living within their territory take a COVID-19 vaccine.
Maybe not.
