Famed Russian novelist Leo Tolstoy wrote, “wrong does not cease to be wrong because the majority share in it”, implying that majority rule does not equate to rule of law. That there must be exceptions and provisions to ensure the morality of a state or a country is upheld even when the majority fails to uphold that majority.
A sentiment advanced by philosophers and scholars for centuries. Even Herbert Spencer, the father of social Darwinism, a social theory that only the most fit become the most successful, cautioned against the possible moral depravity of the majority. In 1850-1851 he wrote, “The Right to Ignore the State”, in which he espoused the law of equal freedom. A natural rights law that states every individual has the right to equal freedoms, and any law that impinges upon that natural right is unlawful and deserves to be ignored.
This was then echoed across the Atlantic Ocean by American philosopher Henry David Thoreau, who wrote about the importance of natural rights, the unalienable liberties that no law may rightfully restrict. In his famous essay, “Civil Disobedience”, he highlights the importance of morality in law. That while unjust laws exist, it remains our collective duty to stand up to such laws – to live as a counter friction to the injustice of immoral laws. Throughout the essay he emphasizes the significance of morality over the will of the majority, and that doing what is right is of utmost importance, regardless of whether it is popular or in line with majority belief.
But perhaps no one understood the harms of majority rule as well as French historian Alexis de Tocqueville. His book, “Democracy in America”, is considered one of the most influential books ever written about early America. He believed the industriousness, morality, and optimism exhibited among the Americans he interviewed were the defining characteristics of the American democratic system.
But he warned that absent such characteristics, particularly morality, America can easily devolve back into a state of tyranny, which plagued much of Europe during America’s early years.
Tocqueville was also keen to note that tyranny can exist in both literal and figurative ways – it can be exemplified through a literal king who commands by executive fiat, or unopposed decrees, and also through a figurative tyranny.
Something he described as the tyranny of the majority, when the majority population begins to restrict the rights of minority populations, including denying the rights of those who disagree with the majority. Tocqueville noted that democracy can only exist when the minorities are protected as much as the majority, and absent equal protections enjoyed among all populations, democracy will no longer be viable in America.
For most Americans, these intellectuals and their works are relegated to the history books. But in recent years, these warnings have proven eerily prescient for many physicians who find themselves isolated within the growing disparity between clinical medicine and healthcare law.
When physicians are accused of breaking the law, rule of law typically gives way to mob rule, as both – the prosecutors and the defendant – vie to control the dominion of public opinion. Prosecutors and defense attorneys will send a barrage of articles, notices, and press releases, fully intending to win the masses before winning a single legal argument – press release after press release, and social media post after post.
As entertaining as the back and forth may be, this behavior violates the fundamental tenants of rule of law. That the law should apply to all equally, that no matter what someone’s background or means may be, the law would apply to everyone equally and fairly.
But when law devolves into legal spectacle and legal arguments are glorified social media competitions, the legal burden falls disproportionately upon those without means, those lacking the financial backing and social networking to mount such a public campaign.
In many ways this is how we define guilt and innocence. When a physician is accused of prescribing opioids illegally, it is the local and national healthcare community that fights on behalf of the accused, initiating petitions and calling on legislators to support the accused physician. When a physician is accused of inappropriately disseminating vaccines to those not eligible, it is again the local and national healthcare community that fights on behalf of the physician.
The mob of healthcare inflicts the public pressure upon the legal system, substantiates the legal argument for the physician, and determines the validity of the court decision.
Yet the very provisions set forth in the Constitution, the very premises argued upon by Spencer and Thoreau and Tocqueville, decry this very notion – that the law should not be subject to the whims of the masses, even of the healthcare masses.
There must be a standardized framework through which we can examine healthcare behavior and determine criminality – absent the impact of the masses. So that an unpopular physician may enjoy the same protections under rule of law as a popular one, that a physician of means receives the same due process as one without.
This begins by restructuring healthcare laws to withstand public sway. Yet most healthcare laws are vaguely defined as broad statutes or generalized characteristics, or through loose terminology that can be interpreted widely.
Legal arguments attribute isolated, specific healthcare behaviors to specific criminal acts, which only appear as criminal when the acts are devoid of any underlying context. But in healthcare, we cannot deduce behavior from its component actions – it has to be viewed in its entirety, its essence, to truly understand it.
The whole of medicine cannot be simplified into a single act, or be defined through a limited set of actions without the underlying clinical basis. The law must appreciate the full expanse of clinical medicine – and the full context of all clinical actions – in order to fairly determine criminality.
From that perspective, healthcare law should be constructed to examine healthcare behavior as whole first, and then distill individual actions based upon how each act relates to the entire behavior.
Standardizing a frame of reference through which healthcare behavior is analyzed legally.
An approach advocated by Chief Justice John Marshall when he analyzed legal cases presented to him early in America’s history. He advised, “the minor ingredients which compose those [individual acts should] be deduced from the nature of the objects themselves” – or to look at the essence of healthcare behavior first and then study the elements of individual actions relative to the whole behavior afterwards.
And more importantly, standardizes how legal arguments are created among healthcare cases.
Until we standardize the interpretation of healthcare laws, the laws will continue to remain vague and broadly defined – ripe for manipulative interpretations that sway based upon the pull of the prosecutor or the accused.
The greater the pull, the greater the credibility. The greater the credibility, the stronger the legal argument.
Yet the importance of credibility when it comes to rule of law, ironically, is that it should not be important, but when physicians are the ones accused, it remains ever important – rule of law be damned.
Vaccine Passports: what we need to know
The COVID-19 pandemic has killed more than half a million people in the US and has seriously impacted our daily lives. The granting of Emergency Use Authorizations for COVID-19 vaccines has been a game changer in helping to reverse the pandemic onslaught. Demand for the vaccines currently far exceeds supply nationwide. They have become the golden ticket that can transport us back to a time when routine activities, such as attending school or taking vacations, didn’t seem fraught with danger. What’s the best way to go about re-establishing these activities? One idea that’s getting discussed seriously is giving those who have been immunized a vaccination passport (VP).
What is a vaccination passport?
Let’s start by clarifying some terminology. VPs are documents that show that someone has been given a vaccine(s) and is therefore presumed to be immune from getting and sharing that disease. These are distinct from diagnostic tests to determine if a person is or is not infected with a particular virus (PCR and viral antigen tests) or has been exposed to a virus (antibody tests). VPs are the modern day equivalents of the “letters of transit” that played a key role in the film Casablanca. They’ll enable you to travel freely.
Why give vaccine passports?
Vaccinated people are unlikely to transmit the virus that causes COVID-19 with others, though this has yet to be definitely proven. So, what’s the primary rationale for giving vaccination passports? It seems the goal is to incentivize people to get vaccinated. Folks might be more likely to seek out the vaccine if it bestows upon them certain privileges, such as being able to travel freely. While the idea might sound appealing at one level, the road to vaccine passports is pockmarked with political potholes and littered with logistical land mines.
There are a lot of important questions that need to be answered before VPs can become widespread; it’s unlikely there will be a “one size fits all” solution. What might VPs look like? Pieces of paper (that could easily be lost or counterfeited), or a digital key or document you store on your smartphone (that many older folks still don’t have)? If you lost one, how would you get it replaced? Would your vaccination records be tied to your other medical records, and if so, what kind of privacy and security protections would be needed to safeguard your data? How would the passport administrator verify that you got vaccinated in the first place? Who is responsible for correcting any errors that crop up? Given how much we’ve struggled as a nation to simply solve the scheduling of vaccinations, VPs might be significantly more difficult to manage.
Who’s going to run the program?
A coalition of health tech leaders (including Epic, the Mayo Clinic, Microsoft and Salesforce) has started the Vaccination Credential Initiative to create an internationally accepted digital health card. Its vision – as stated on its website – is “to empower individuals to obtain an encrypted digital copy of their immunization credentials to store in a digital wallet of their choice. Those without smartphones could receive paper printed with QR codes containing World Wide Web Consortium (W3C) verifiable credentials.” Some European countries (e.g. Denmark) are working on developing their own immunization passports, and the President of the European Union Commission has voiced support for them.
We already have a hodgepodge system designed to keep folks with COVID-19 from traveling. Many airlines are requiring proof of non-infectivity to board a plane – these are distinct from VPs. The methods adopted vary from airline to airline: United uses Travel Ready Center, American uses VeriFly while others use Common Pass. Saga cruises are the first in the UK to demand proof of vaccination, but not everyone is on board with the concept. The World Travel and Tourism Council stated its opposition to allowing travel only by those who have been vaccinated, on the grounds that it is discriminatory.
The concept of gaining advantage from one’s immunological status is not a new one. In New Orleans in the mid 19th century, great economic value was attached to those who survived the onslaught of epidemic waves of yellow fever. A mix of structural racism and a system valuing “immunocapital” ranked men and women highly if they were yellow fever survivors. Those that had not had the disease yet found it difficult to obtain work or obtain credit and women could not marry. Slaves were similarly revalued, with larger assessments attached to survivors. This legacy of viral discrimination casts a long shadow over current discussions surrounding vaccination passports.
Also problematic is the fact that not everyone will be eligible for VPs. Some people can’t be vaccinated for medical reasons but would still like to participate in whatever activities the passports enable (such as travel opportunities). These individuals will likely file complaints if they are denied VPs, arguing that they’re discriminatory in nature. Vaccine opponents will no doubt also file lawsuits seeking to block the use of VPs, claiming they represent an attack on their freedoms and personal choice.
Others may be shut out of VP programs because they don’t have the computer skills to register online, a problem that’s turned out to be widespread with the vaccinations. Don’t have any ID? In some places this prevents the most vulnerable from getting the COVID-19 vaccine, and therefore VPs as well. Many Black and marginalized communities are already deeply suspicious of the medical establishment, and wary of receiving a COVID-19 vaccine. Restrictions that prevent these groups from participating in various societal activities because they don’t have VPs will echo the Jim Crow days of poll taxes and literacy tests that were required to vote.
VPs bring up a similar issue as mask mandates: who is going to enforce them? It is one thing for a cruise line to do so, since reservations are required and extensive paperwork needs to be filled out in advance. Who is going to keep non-vaccinated people out of restaurants or concerts that require proof of vaccination? We’ve already seen anti-maskers storm department stores, ignore requirements to wear masks on planes and even kill a security guard who confronted them.
Black market for vaccine passports
Many airlines are now requiring proof of a negative COVID-19 test before they will let their customers fly. This has led to a black market for fake negative COVID-19 test results for those who are looking to game the system. Similarly, bogus cards claiming that the cardholder was exempt– for medical reasons – from having to wear a mask, have been manufactured and distributed. It’s not hard to imagine that a similar market will emerge for VPs.
Overcoming vaccine hesitancy
Given the multitude of issues and concerns listed above, moving forward with issuing vaccination passports seems highly problematic. If the primary purpose of having VPs is to drive up immunization rates, that can be better accomplished by running public service announcements and ads illustrating how liberating it is to start doing normal activities once vaccinated. A nationwide campaign to do just that is already in the works. I personally can think of a better use for the time and money that will be spent on establishing VPs: use them to focus efforts on overcoming vaccine hesitancy in concert with combatting the high tide of online vaccine misinformation and disinformation.
Source: Technology Networks