Govind Persad is an assistant professor at the University of Denver Sturm College of Law. Emily Largent is an assistant professor at the University of Pennsylvania Perelman School of Medicine.
We think no. Doing so would be unfair to Americans who remain unprotected by vaccines through no choice of their own.
Several ethicists and some experts/physicians disagree. They argue that when allocating scarce medical resources, such as hospital beds and covid-19 therapies, we should not assign lower priority to people who have refused coronavirus vaccines than we do to people who are immunocompromised or ineligible for vaccination. They believe allocation decisions should strive purely to prevent harm, without considering whether the harm could have been avoided by taking recommended precautions.
They would, presumably, take issue with the Food and Drug Administration’s eligibility rules for the antibody therapy Evusheld, which is authorized for covid-19 prevention. People who have merely refused coronavirus vaccines are ineligible for the therapy, even though they stand to medically benefit just as much as Evusheld-eligible patients who are medically ineligible for vaccines or unable to mount an immune response to them.
Changing the eligibility rules to include those who have declined vaccination would direct most Evusheld doses, which are scarce, to vaccine refusers, who far outnumber immunocompromised and vaccine-ineligible patients. As has already happened for other therapies, a 65-year-old vaccine refuser, given their age-associated risk for covid-related morbidity and mortality, might be prioritized over an immunized but immunocompromised 50-year-old.
This would be wrong. Health systems should first use scarce doses of Evusheld to help those who are medically unable to protect themselves before offering doses to those who could readily protect themselves but refuse. Those who cannot effectively protect themselves against severe covid-19 through vaccination have a stronger ethical claim to scarce protective interventions.
The reasoning to give vaccine refusers equal or greater access to treatments boils down to three arguments. None are persuasive.
First, some argue that doctors must treat everyone in need. This is ordinarily true, but we are not talking about ordinary care. We are talking about scarce treatments. We can’t give Evusheld to everyone because there isn’t enough. Scarcity requires us to make allocation decisions that we would not otherwise make.
When coronavirus vaccines were scarce, we prioritized health workers and people who participated in clinical trials, both to recognize their contribution to the pandemic response and to encourage others to step up or stay on the job. Prioritizing those who cannot protect themselves with vaccines is not intended to shame the unvaccinated, but to create foreseeable consequences for choices that affect everyone. It recognizes the efforts of vaccinated, high-risk adults to reduce pressure on hospitals, while also potentially saving lives by incentivizing holdouts to get vaccinated (just as reminding them of the financial costs of hospitalization appears to do). This is especially important as vaccination rates stall and the Supreme Court blocks some mandates.
Second, some argue we can’t reliably tell who’s vaccinated and that considering vaccine status will lead us down a slippery slope. But widespread requirements that health-care staff and visitors show proof of vaccination make it clear that health-care providers can distinguish the vaccinated from the unvaccinated. As for slippery slopes, both vaccine uptake and eligibility are clearly documented in patients’ medical records. Unlike allocation policies that might require clinicians to make subjective judgments and be prone to bias, considering vaccination status isn’t about judging character, but about assessing the means by which people could protect themselves from covid-19 hospitalization.
Third, some argue that unvaccinated people might be disadvantaged or face access barriers. Yes, some people face barriers to vaccination, but this portion of the population is relatively minute: less than 2 percent of unvaccinated adults report lack of access. More common reasons for being unvaccinated include fear of side effects (50 percent), lack of trust in the vaccines (42 percent), lack of trust in the government (35 percent) and the perception that people don’t think they need a vaccine (32 percent).
Moreover, racial disparities have narrowed sharply, with Hispanic and Asian adults now even likelier than White adults to be vaccinated. More fundamentally, the equity argument for prioritizing unvaccinated adults can’t just be that they are more disadvantaged than average Americans; it must also be that they are more disadvantaged than people who are seriously immunocompromised or medically ineligible for vaccines. That is a difficult argument to make.
We routinely recognize that needs come before wants. We make parking spaces accessible to people with disabilities; not to just anyone who prefers a shorter walk. We reserve gluten-free sandwiches at events for those with celiac disease, not for those who prefer the taste. Likewise, Americans unvaccinated by choice, even if they would prefer Evusheld to widely available vaccines, should wait behind the immunocompromised and vaccine-ineligible. It’s only fair.