Rejecting Vaccination Status Discrimination: Learning from the Laws of War

Posted in: Health Law

As the pandemic rages on, overwhelmed medical facilities face tough decisions. The question of who gets the ECMO machine or the ICU bed is no longer a theoretical one. Should medical facilities consider vaccination status as a relevant or disqualifying factor to determine priority for scarce resources? Some say yes. For instance, this op-ed recommends vaccination status be used as a tie-breaker after the consideration of routinely acceptable factors. This one permits a finger on the scale in favor of the vaccinated. This op-ed goes further suggesting the unvaccinated should always be the last to get limited health care resources. Advocates have offered various rationales ranging from a punitive one—those who make bad decisions must accept negative consequences for their actions to a fairness one—those who have acted for the benefit of society as well as their own benefit by getting vaccinated ought to get priority over those that do not. What these advocates seem to share is the belief that exceptional times call for exceptional deviations from the default rule of nonjudgmental health care access. They generally acknowledge that in normal times, patients’ prior decisions, even anti-social ones such as smoking or drunk driving, ought not play a role in their access to medical resources, even scarce resources. What is ostensibly different here is the magnitude of the COVID-19 surge and the role of the unvaccinated in placing a strain on hospitals and on society more generally. But the exceptional setting I know best, the laws of war, would caution strongly against considering vaccination status when allocating even scarce resources. The laws of war emphatically reject status discrimination in medical decision-making, and their rationale for doing so applies in the exceptional world of COVID-19 as well.

In order to get there, we must first ask what is the right metaphor or analogy for this exceptional time. Some have compared the unvaccinated to those waiting for a liver transplant. Like those seeking health care resources during this latest surge, those waiting for organs are doing so in a situation of scarcity. If we deny a liver to someone who has even a sip of alcohol, why not to those who declined a vaccination? But the transplant situation, even though it accounts for scarcity, seems like the wrong analogy for several reasons. First, the timing is meaningfully different. Those who drink while on the transplant list are not in the prevention stage, but are already ill and have been placed in line for scarce resources. The transplant system does not per se deny livers to those who drank themselves into cirrhosis. And the denial of a transplant to those who drink alcohol while on the transplant list is neither punitive nor about deservingness. Rather the six-month rule exists to give the liver a chance to heal and thus obviate the need for surgery and to address concerns about the risk of non-compliance with necessary health protocols after the transplant. Interestingly, some literature supports the revocation of such a rule and some hospitals have done so.

I suggest instead looking at health care access in the exceptional situation I know best—armed conflict—which strongly urges vaccination status neutrality. Triage and rationing decisions are commonplace in medical combat settings. Medical staff in combat settings are by definition working under suboptimal conditions often with too many patients and too few resources. In armed conflict, opposing combatants constitute a direct threat to one another. Many combatants who are not compliant with laws of war (and sometimes even those who are) pose a direct threat to civilians. Unlike the unvaccinated who are seemingly indifferent to or unbelieving of the risks they create for others, the raison d’être for combatants in armed conflict is to impose life-threatening risks on their opponents. And yet, the laws of war dictate that opposing forces must respect, protect, care for and treat the sick and wounded humanely. These requirements are understood to mean that medical care must be provided without distinguishing based on nationality, race, political opinions, wealth, status, or any other similar criteria. Decisions of who to treat first or who receives scarce resources must be based solely on patient requirements—only “urgent medical reasons” can be used to justify the priority of treatment provided to the wounded and sick. This can and does lead to situations in which medics treat enemy combatants, who just moments before were trying to kill their comrades, before those on their own side. That practice would be the same even if the combatants engaged in such brazenly illegal and widely condemned practices as targeting hospitals or medical personnel.

Why create such a system? After centuries of brutal conflicts and some nudges from emerging advocacy work, states recognized the importance of drawing certain lines of humanity regarding prisoners of war and the sick and wounded. Skeptics suggest those lines were firmly rooted in concepts of reciprocity. In other words, we treat your sick and wounded and do so without discrimination, and we expect you to do the same for ours. But over time, the humanitarian rationale—the idea that even combatants retain humanity and must be treated as such by nature of their personhood—came to predominate. So even if one side consistently violates international humanitarian law by targeting civilians, mistreating prisoners of war, and rejecting its obligations to respect, protect, care for, and treat the sick and wounded, the other side is still very much required and expected to meet its own obligations. I have written elsewhere about the extensive benefits of treating victims of armed conflict humanely, both as an end in itself, but to the harm doers as well. In short, I believe it reinforces professionalism and helps address moral injuries.

Why not adopt a more punitive- or accountability-based approach? Because the laws of war recognize the treatment of the sick and the wounded ought to be governed by principles of humanity rather than the need for accountability. If we can accept this in wartime, it ought to be much less controversial in peacetime, even a peacetime as exceptional as this.

Of course, armed conflict is not a perfect analogy. And perhaps more importantly, it can be a dangerous one. The rhetorical framing of the war on terror and the war on drugs has been used to justify a host of problematic policies and, in my opinion, to needlessly roll back a variety of civil liberties. But to the extent that people are already constructing a war on COVID-19 in which the unvaccinated are enemies, we would do well to remember that even wars have important limits including the respect of the humanity of all, even its participants.

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