Govind Persad is assistant professor at the University of Denver Sturm College of Law. Ezekiel J. Emanuel is chairman of the Department of Medical Ethics and Health Policy at the University of Pennsylvania and a member of Joe Biden’s public health advisory committee.
The ethics of such licenses need to be evaluated against the alternative of enforcing universal public health restrictions for the next 12 to 18 months — until a vaccine returns some kind of normalcy — or abandoning those restrictions and allowing a deadly infection to spread. Both options involve serious harms and inequalities.
In this context, immunity licenses could promote individual liberty and benefit society without invidious discrimination. A fundamental principle of public health is choosing the “least restrictive alternative” — that is, restricting personal freedom only where necessary to achieve crucial public health objectives. People should be given a chance to show they are immune and are safely exempt from restrictions properly applied to those at risk of infection.
Driver’s licenses are a better model for immunity certifications than all-or-nothing “passports." Driving is dangerous, but society manages the risks by restricting driving to licensed individuals who have shown they can drive safely. Licenses are also tailored to the risks posed. Most people are licensed to drive passenger cars; few have passed the more stringent tests to operate buses or large trucks. Similarly, licenses for new drivers and those with health conditions have restrictions. Licensing drivers improves safety. The same should be true for other risky activities during the coronavirus pandemic.
Clearly, people who are not immune and lack licenses would be disadvantaged relative to those who are. They may be unable to do certain jobs or travel to certain countries. But retaining maximal public health restrictions for everyone would not solve the problem of disadvantage. It would also violate the principle of the least restrictive alternative.
Activities permitted under public health orders, such as walking outdoors, interacting with household members and grocery shopping, should not require licenses. More importantly, just as licensed truckers benefit people who cannot drive, immunity licenses could enable safe economic activity that benefits everyone. Confirming the immunity of nursing-home staff could protect vulnerable patients. Allowing immune friends, relatives and volunteers to visit covid-19 patients could ease the psychological challenges of isolation. Immunity licenses could enable social and economic activities, such as in-person religious services and cultural events or patronage of nonessential businesses that require close physical contact, reducing the social toll of unemployment.
To be ethically sound, immunity licenses should not involve fees or be denied to people for reasons unrelated to immunity, such as unpaid debts. Race, religion and heritage should be irrelevant. Vulnerability to covid-19 is a factor public health policies already consider. Eschewing a regulated licensing program would not prevent stigma and inequality — but a lack of licensing may foster the use of unregulated test results or biased assumptions about immunity or vulnerability.
The most pressing obstacles to immunity licenses are scientific and practical. First, covid-19 antibody (serology) tests used for licensing purposes must be valid and reliable. Only some 12 of the more than 150 known serology tests in the United States are certified by the Food and Drug Administration. Most have excessive false positives, making the results untrustworthy as a basis for immunity licenses. Second, licensing requires better scientific evidence about the link between covid-19 infection and immunity: Does a positive serology test indicate immunity to covid-19 — and for how long? A program to deploy immunity licenses would incentivize necessary research that would benefit everyone in the long run.
The practical problem involves incentives. Much as with chicken pox "parties,” where parents tried to infect their children to get “it” over with, people frustrated with restrictions might seek infection — endangering themselves and others — in a bid to gain immunity and resume normal activity. One mitigation measure could be to first offer licenses only to health-care workers, who are both more likely to encounter infection in any event and to be better informed about risks.
Other critics worry that immunity licenses could encourage fraud or counterfeiting. Issuers — likely state governments, as with driver’s licenses — would need to incorporate careful verification and anti-forgery processes. Just as the impossibility of preventing all fraud doesn’t make driver’s licenses unworkable, it would not preclude immunity licensing.
Properly implemented, immunity licenses could enhance individual liberty by allowing immune individuals to safely engage in activities without worsening things for those who are not immune. They could help support society by allowing immune workers to care for the most vulnerable. Most important, they would not be discriminatory. Their ethics depends on deployment consistent with the best scientific knowledge.
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