Pandemic Politics

Vaccine Mandates: Civil Liberties Trampled by a Panicked Mob

William McNally
November 8, 2021
Twenty-odd months ago, much of the Canadian public entered a kind of “just make it go away” mindset towards Covid-19, becoming willing to follow just about any rules and restrictions so long as they could glimpse a path back to normality. Today, with even the magic jab having failed to deliver us, the hunt for scapegoats and saboteurs is on. The unvaccinated! Blast their tender sensibilities; we must be stern and uncompromising in our march to universal inoculation. “Covid-Zero” might be chimerical, but “Shot 100” can be achieved – whatever the cost in wrecked lives and stolen liberties. With public support seemingly rising for denying the unvaccinated not only their freedom and their jobs, but their health care and even organ transplants, William McNally coolly assesses the arguments for vaccine mandates and finds them severely wanting.
Pandemic Politics

Vaccine Mandates: Civil Liberties Trampled by a Panicked Mob

William McNally
November 8, 2021
Twenty-odd months ago, much of the Canadian public entered a kind of “just make it go away” mindset towards Covid-19, becoming willing to follow just about any rules and restrictions so long as they could glimpse a path back to normality. Today, with even the magic jab having failed to deliver us, the hunt for scapegoats and saboteurs is on. The unvaccinated! Blast their tender sensibilities; we must be stern and uncompromising in our march to universal inoculation. “Covid-Zero” might be chimerical, but “Shot 100” can be achieved – whatever the cost in wrecked lives and stolen liberties. With public support seemingly rising for denying the unvaccinated not only their freedom and their jobs, but their health care and even organ transplants, William McNally coolly assesses the arguments for vaccine mandates and finds them severely wanting.
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Like many other Ontario universities, my university is requiring all students, staff and faculty to take the Covid-19 vaccine. As I write this, faculty and staff in Ontario are losing their jobs and students are being kicked out of school because they refuse to take a drug. Full-time instructors like microbiologist and biochemist Michael Palmer at the University of Waterloo are being terminated, part-time instructors are having winter courses reassigned and students are suspending their studies in the winter semester.

In implementing such a draconian policy, you might imagine that the universities first engaged in a robust debate drawing on the expertise of their science faculty. You’d be wrong. A good example is the University of Guelph, which refused to engage the expertise of viral immunologist Byram Bridle, a member of the university’s faculty. Instead, the universities have blindly followed the instructions of Ontario’s Chief Medical Officer of Health. Even this was a choice, however. A bad choice. The provincial medical officer actually offered universities a rapid-testing alternative to the vaccine mandate and the universities didn’t take it.

The most serious problem with vaccine mandates is that they violate individual rights under both constitutional law and Canada’s pre-existing civil law. Section 7 of the Canadian Charter of Rights and Freedoms explicitly protects “security of the person” and subsequent jurisprudence has held that this encompasses both a person’s right to refuse medical treatment and a right to control their bodily integrity. This means that a government cannot force individuals to take a drug. While this Charter protection does not forbid non-governmental entities from enacting vaccine mandates, requiring anyone to take a drug as a condition of employment (or for receiving a basic service) forces them to surrender a core right under Common law and tort law. That is much too high a price to demand when there are alternatives.

In this essay I systematically examine the case for vaccine mandates. In my opinion, the proposed bargain – surrender your rights and violate your own body; in return, you can keep your job – is outrageous and unnecessary. The net benefit of mandates is not obviously positive because there are better policy alternatives and the cost to society of violating a basic civil liberty is larger than most Canadians apparently imagine.

Coercion or Just a Fatherly Nudge?

Ever-growing pressure: In addition to being denied access to a vast array of publicly accessible spaces, as well as air and rail travel, the unvaccinated may soon lose not only their jobs but even the financial safety net they paid into.

Some will argue there is no coercion being applied to the unvaccinated. That is disingenuous. True, nobody is being dragged to vaccination centres to be forcibly injected, nor being put in prison for remaining unvaccinated. The coercion doesn’t come at the point of a gun but with the erosion of choices. The unvaccinated are now denied access to bars and restaurants, gyms, travel by air and rail and, in Ontario as in most provinces, university education and even employment. To add pressure, the federal government just announced that those who lose their jobs for resisting the mandates may not even be eligible for employment insurance, a program into which workers themselves are required to contribute. As the number of forbidden activities rises, individuals may eventually decide that vaccination is the lesser of two evils.

Governments and, it seems, millions of Canadians evidently think that this represents a free choice. Hardly. Let’s take an analogy. Let’s say that you, a female in your 30s, learn from your older boss or manager that he wishes to commence a sexual relationship with you. He wishes it so badly that he will arrange for your termination if you decline. Your choices are to submit to his demands or lose your job. It is difficult to imagine anyone regarding his proposal as providing a “free” choice – or being remotely appropriate or defensible. Virtually everyone would see it as unethical, horrible and almost certainly criminal. True, the goals and motives of a vaccine mandate are different from those of our odious boss – but our point here is to ascertain whether the process used on the unwilling party is coercive in both instances. Clearly it is.

An Important Caveat

Before going further I want to state that I am pro-vaccination and am double-vaccinated. In a calmer and more rational world, the source of any argument and its supporting facts shouldn’t matter to an audience. But I feel I need to say this because some will attempt to nullify my facts and arguments by delegitimizing the source – portraying me as an “anti-vaxxer.”

For many – even many of those who have serious concerns about the vaccines – the benefits of vaccination appear to outweigh the costs. This is particularly so for those over 60 with co-morbidities.Vaccines reduce the severity of Covid-19 symptoms for most people. My position is that one can be happily vaccinated and still oppose vaccine mandates.

Compared to What?

The argument for mandates is based on a cost-benefit analysis. The benefit is the increased safety delivered by higher levels of vaccination brought about by the mandate. The cost is what we have to give up to achieve this. But in discussing the cost and benefit of vaccine mandates, we need to compare the desired level of safety such a policy may achieve with the next best alternative and the associated costs of that. In my opinion, the best alternative health care policy would include:

  1. Voluntary vaccination;
  2. Persuasion; and
  3. Rapid antigen testing.

Persuasion

Persuasion failure: From the beginning of the Covid-19 pandemic, public messaging on the subject has been rife with contradictions and inconsistencies, most of which, even after 20 months, have not yet been resolved. (Source: Alex Hogan/Stat)

A critical part of the alternative policy mix is persuasion. Mandate supporters argue that further attempts at persuasion are futile. I don’t know why, since government communication about Covid-19 has been largely a disaster since the pandemic began. The reversals on international travel restrictions and masks coupled with the official encouragement to participate in particular kinds of political protests during a lockdown did much to undermine trust in public health messaging. And it hasn’t got any better. In mid-October, the Saskatchewan Health Authority tweeted that Covid-19 risk is not determined by age (which is blatantly false). A few days earlier, Alberta’s Chief Medical Officer of Health apologized for falsely announcing the youngest Covid-19 death in Alberta – a 14-year-old boy who, his family had revealed on social media, actually died of brain cancer.

An effective persuasion effort must address the concerns of the vaccine-hesitant, in order to help them make a decision under the principle of informed consent. Theprinciple holds that every adult human of sound mind has the right to determine what shall be done with their own body. This was part of all medical treatment prior to the mandates: it was the physician’s duty to provide information about material risks and alternative means of treatment. The physician also had the duty to ensure that the patient understood those risks. In the case of a vaccine, the duty to inform falls on public health agencies (and governments). So far, they have failed in that duty. Persuasion has not been tried properly or fully.

Dissipating trust: According to a recent Maclean’s poll, 7 percent of Canadian adults – 2.1 million people – are hesitant about Covid-19 vaccination. (Source: Abacus Data, August 2021)

The concerns of the hesitant were enumerated in a recent Maclean’s poll. The poll found that most of the hesitant don’t trust government, which is understandable given the poor public health messaging mentioned above. According to the poll, the hesitant typically try to avoid prescriptions and dislike putting anything unnatural in their bodies. Most worry that Covid-19 vaccines haven’t been tested for a long enough time.

This concern about the danger of the vaccines is justified, at the very least, by the fact that two vaccines have been proscribed in some jurisdictions because of adverse effects: AstraZeneca and Moderna. Concern is further justified by the facts that: 1) the long-run risk profiles of the vaccines are unknown; and 2) side-effect reporting has been incomplete. Public health messaging about vaccine risks has been less than forthcoming presumably because of the fear that the unvarnished truth would discourage vaccine use. But deceptive messaging also reduces vaccine acceptance over the longer term by eroding trust.

Author and mathematician James Lindsay (left) argues that individuals should never be coerced into taking a vaccine – only persuaded. Otherwise, as James Madison (right) warned, people lose the moral basis for their trust in the rule of law.

Doing a bad job at persuasion and then coercing the reluctant has heavy costs, as author, cultural critic and mathematician James Lindsay explained in this podcast in May:

“If you want me to get this vaccine you have to make the argument, you can’t merely coerce me into it…You could (and probably will) coerce or force me to it but you didn’t win the argument to do that. I didn’t, in that case, volunteer for it and I’m going to resent everyone who was involved: every industry who was involved, every individual, every politician who didn’t stand up for my right to make a choice in this.”

Lindsay echoes American Founding Father and fourth President James Madison, who arguedthat when a man is forced to betray his conscience, he loses the moral basis for his fidelity to the rule of law, and the moral foundation for democracy is destroyed. Madison’s language seems archaic today, but we can accept that his concerns cover not only men, but all persons.

Bias in Risk Assessment

Another significant shortcoming in vaccine messaging is that it hasn’t addressed an important cognitive bias. As explained in an article in the Journal of Experimental Psychology, people tend to greatly overestimate the probability of potentially fatal events. This bias can be quite large and lead to poor decision-making.

Research shows that people are prone to cognitive bias when estimating risks of fatal outcomes. This results in irrational fear, poor decision-making and bad public policies. Covid-19 public messaging may have contributed to these effects.

The size of the bias was revealed by a September 2021 Gallup poll asking Americans about the risk of hospitalization due to Covid-19. Very few gave a correct answer, which is 0.01 percent for the vaccinated and 0.89 percent for the unvaccinated. The magnitude and pervasiveness of the over-estimates were interesting. Forty-one percent of Democrats (and 22 percent of Republicans) think the risk of hospitalization is over 50 percent if unvaccinated.

This level of misperception will result in bad risk-management decisions with respect to the risk of infection. Similar errors are likely being made in evaluating the risk of vaccines. But trading off those two risks is the heart of the vaccination decision. Without good estimates of the risks that are well understood by the public, informed consent is impossible.

This cognitive bias also affects support for public health policy and might lead politicians to adopt bad policy. One wonders whether, for example, an exaggerated sense of the risk of Covid-19 partially explains the strength of the support for vaccine mandates.

An effective persuasion campaign would make the case for vaccines in terms that people can understand and thereby lay the foundation for a truly informed-consent decision. We haven’t seen that kind of campaign yet. Until we try, we don’t know what additional proportion of the population might take the vaccine voluntarily.

Still, even with an effective (and honest) persuasion campaign, there will be some who choose not to take the vaccine. Dismissing their decision and forcing them to take a drug is a violation of the informed consent doctrine and their Charter rights. That is a very serious infringement and it used to be punishable by law.

Why No Recognition of Rapid Testing?

Another important piece of the alternative policy mix is rapid testing. To minimize the chance of the virus spreading, we want to exclude infected people from public spaces. It is not clear that vaccine mandates yield public spaces with fewer infected individuals than would a policy of voluntary vaccination coupled with rapid testing.

Policy alternative: Although the unvaccinated are widely blamed for spreading the Delta variant, rapid antigen testing holds potential as a more affordable and less intrusive way to prevent viral spread than mandatory vaccination. While used widely in Europe, it has been largely downplayed in Canada.

Rapid antigen tests are an alternative to the more common (but more expensive and time-consuming) PCR tests. Rapid tests are less accurate, but they are cheap and can be self-administered at home. Individuals can thereby assess whether they are infected and, if so, can quarantine. Proof of a negative test could be used as a condition for participation in public spaces – as is already the case in many countries, including EU member states.

Under mandates, vaccination status is used as a proxy for (un)infection status, but it is a poor proxy. It is now clear that the vaccines don’t sterilize (i.e., kill the virus particles in the infected person). The vaccinated can therefore not only catch but also transmit the virus. Conditioning access to public spaces on vaccination status – the main focus of policy in Canada – still allows the infected into those spaces.

Failed panacea: Now that it’s clear the vaccinated can still catch and spread Covid-19, there’s a renewed push for social distancing and masking. Will we ever “get back to normal”?

To demonstrate that vaccine mandates are superior to a rapid testing regime, advocates of vaccine mandates must demonstrate that the reproduction rate under the mandate is significantly less than the rate with rapid testing. Indeed, if both achieve an R-naught value below one, then both regimes will inhibit spread of the virus and can be regarded as equivalent policy substitutes. Mandate supporters have not made that case, choosing instead to ignore or ridicule the risks of vaccinated persons infecting others, and assigning rapid testing to a secondary role. Everything, it seems, must serve the campaign of universal vaccination.

Public Health Under a Mandate

We also need to rationally evaluate the safety level under the mandate. Many supporters seem to think that mandates will end the pandemic. But, given the multiple viral mutations that have already occurred, it seems more likely that Covid-19 is endemic. If it’s endemic and if the vaccinated can spread the virus and even die from it, then we’re not going back to normal any time soon. Even with vaccine mandates, it will be prudent to avoid large groups, socially distance and wear masks for a long time.

In conclusion, it’s not clear that mandates deliver a higher level of public health than a regime including voluntary vaccination supported by effective persuasion, rapid testing and continued personal caution. Even if the marginal benefit of mandates is positive, it does not appear to be large and it is difficult to see it offsetting the marginal costs.

Before analyzing those costs, I want to point out two other problems with mandates: one a flawed understanding of rights and the other a harmful omission.

The “Right” to be Free from Risk

Many people support mandates because they believe they are entitled to be free of the risk of infection from the unvaccinated. That right doesn’t exist in the Charter – nor in the common law or in history. It is a so-called “positive” right because it obligates others to do something for those claiming the right. In this case, it requires the unvaccinated to take an action. Most Charter rights – like our ancient Common Law rights derived from Great Britain, or U.S. constitutional rights – are “negative.” They protect the individual citizen from oppression, usually by government.

Positive rights are popular among intellectuals, left-leaners and much of the political class because they support the expansion of government, but generally they represent threats to individual liberty because they depend on the power of coercion. There is unlikely ever to be a Covid-19-risk right enforced through mandatory vaccination, because the new right would violate the Charter right to bodily autonomy and the latter is a foundation of both common and tort law; still, with Canada’s current Supreme Court, almost anything is possible.

Harming Covid-19 Survivors – Why no Recognition of Natural Immunity?

A recent observational study suggests that recovering from Covid-19 infection confers at least as strong or even stronger immunization as does two-dose vaccination.

A final criticism of the supposed benefits of vaccine mandates in Canada is that they fail to exempt Covid-19 survivors. A recent observational study by Gazit et al. (2021) (not yet peer-reviewed) reached the conclusion that natural immunity confers longer-lasting and stronger protection against the highly infectious Delta variant than two-dose vaccine-induced immunity. The implication is that those with natural immunity don’t need the vaccine and should therefore be exempt from any mandate. For those with natural immunity, vaccines offer only the downside risk of side effects. Mandates that don’t exempt Covid-19 survivors create a risk of harm to those individuals. A policy that deliberately causes harm is bad policy.

It must be noted that the refusal by Canadian institutions and governments to recognize natural immunity does not represent mainstream international thinking and is sharply at odds with policy in Europe. EU-wide policy adopted in July regards a documented recovery from Covid-19 as equivalent to vaccination; it also makes broad accommodations for those who choose rapid testing. Germany, for example, has widely touted its “G3” policy – shorthand in German for geimpft – getestet – genesen, or “vaccinated – tested – recovered.” Any of those three conditions enables a person to participate fully in society. Natural immunity is clearly recognized.

At odds with Europe: While the Government of Canada has gone out of its way to violate people’s right to free movement by conditioning travel on vaccination status, the EU has upheld this fundamental right by recognizing both natural immunity and Covid-19 testing for a citizen’s full participation in society.

Also in marked contrast to Canada, the current EU travel policy states that all citizens retain the right to free movement throughout member nations whether or not they are vaccinated. In this respect, the EU is far more respectful of individual liberties than Canada’s federal government – via a policy that remains rigorous from a pandemic management perspective. In contrast, in Canada starting on November 1, 2021, the unvaccinated are barred from domestic travel by air or rail. Compared to the EU, Canada’s vaccine mandates are hardly reasonable, much less enlightened – nor are they even necessary.

The Cost of Mandates

Why do mandate supporters weigh the implied infringement of rights so lightly? Is it because violating civil liberties is invisible? The costs may be intangible but they’re certainly not zero. A violation of rights poses a direct cost to the victim, but it also costs society. Individuals who feel coerced into vaccination feel violated. One woman wrote to me describing the feeling as akin to rape.

One hears little in the mainstream media about the impact of mandates on opponents; there is a tendency to dehumanize them. I have seen the personal cost. After I co-signed an open letter condemning the vaccine mandates, I received dozens of emails from distraught students, parents, faculty and staff equally opposed to the mandates but afraid to speak out. The stories I heard are often heartbreaking. Students forced to drop out of school. Faculty who’ve lost their jobs. Personal videos posted on social media from ethics professor Julie Ponesse (formerly of Western University) and psychologist Jeffrey Graham (formerly of the University of Toronto) offer ample first-person testimony of the cost of vaccine mandates.

Drip, drip, drip: In September Quebec’s Premier François Legault (top) passed Bill 105 prohibiting Covid-19-related protests, while Australian cabinet minister David Littleproud (bottom) called for forced “isolation at Her Majesty’s pleasure” for those opposing lockdowns. To think it all began with “two weeks to flatten the curve!” (Source of top image: The Canadian Press/Jacques Boissinot)

Another cost of accepting an infringement of rights is that it softens opposition to further infringements. Look how we got to this point. In March 2020 we accepted restrictions on our liberty to move, meet and conduct business. We were told it was just for two weeks. It wasn’t. We endured more lockdowns throughout 2020 and 2021. In Quebec, there were curfews. In September 2021, Premier François Legault’s government passed Bill 105 which prohibits Covid-19-related protests, a direct infringement on the right to free assembly.

What liberty is next on the chopping block? If we follow Australia’s example, it will be free speech. In September 2020 in Ballarat, Australia, police arrested a pregnant woman on incitement charges for organizing an anti-lockdown protest on Facebook. Or it might be the right to due process of law. Australian cabinet minister David Littleproud argued that anti-lockdown protesters “should be forced into isolation at Her Majesty’s pleasure.” In other words, indefinite detention without charge, trial or any way out.

A majority of Canadians support vaccine mandates. Majority support doesn’t make mandates right, but it does make the measures easier for politicians to pass. Constitutional rights exist precisely for this reason: to protect individuals from the tyranny of government and from the tyranny of the majority. The moment a panicked majority demands mass violation of individual rights is the moment when we most need to defend those rights. At this moment, Canada’s Charter is proving useless.

In a 2008 report, the American Civil Liberties Union (ACLU) argued that coercion and mandates were the worst possible way for governments to respond to pandemics. Persuasion and voluntary compliance were the most effective and the least likely to erode liberties. The report included the example of how New York City once responded to a resurgence of smallpox:

“In contrast, New York City relied on a different approach in 1947, one that viewed the public as the client rather than the enemy of public health. When smallpox reappeared in the city after a long absence, the city educated the public about the problem and instituted a massive voluntary vaccination campaign. Not surprisingly, no coercion was needed. Provided with information about the need for and benefits of vaccination, and reassurance that the city was helping rather than attacking them, the citizens of the [sic] New York turned out en masse for one of the world’s largest voluntary vaccination campaigns. The campaign was successful, and the epidemic was quashed before it had a chance to spread broadly in the city or beyond.”

We should heed this important lesson of history. The right approach to controlling a pandemic isn’t to violate rights, coerce and threaten. That is the dictator’s way. In a rights-based democracy, the proper solution is found within our constitutional rights rather than outside of them. Living in a liberal democratic society means accepting the choices made by our neighbours even if we think they’re wrong. That is the essence of liberty. When we want to change our neighbour’s behaviour we ought to rely on persuasion and not coercion. Isn’t that what we’d want were our roles reversed?

Instead of mandating vaccines, we should make the case for them as clearly and honestly as we can. To protect public spaces, we should adopt a regime of rapid testing. Vaccine mandates won’t end the pandemic. Testing, in conjunction with voluntary vaccination, will deliver a nearly identical level of public health without violating the core rights that are the foundation of Canada’s liberal, democratic society.

William McNally is a professor of finance at Wilfrid Laurier University and a defender of universities as truth-seeking institutions that promote free and open inquiry.

Source of main image: The Canadian Press Images/Lars Hagberg.

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