In the first of a three-part series on mandatory vaccination for Covid-19, we look at whether as a matter of public health it is constitutionally permissible for the government to legislate mandatory vaccinations during a pandemic.
Halton Cheadle is Professor Emeritus at the University of Cape Town, and practising attorney at BCHC Attorneys. Glenda Gray is the President & CEO of the South African Medical Research Council (SAMRC) and is on the Board of Directors for the Global Antibiotic R&D Partnership (GARDP)
The simple answer is it can. That it hasn’t is because it decided as a matter of policy not to do so. Presumably, because it was initially uncertain as to whether it had, or would have, sufficient vaccines for the whole population or because it considered that it would be more effective to use persuasion rather than legislation to secure universal vaccination. It may also have been fearful of violating the constitutional rights to bodily integrity and religious beliefs.
We say “presumably” because so much of the decision-making in this country is not transparent – giving reasons means that the reasons can be challenged. But whether those reasons are good or not compelling in the light of the evidence is not what we wish to discuss here. What we want to discuss is simply that there are good public health grounds for an argument that it would be constitutional for the government to introduce legislation making it mandatory for all to be vaccinated (subject, of course, to the availability of vaccines and medical reasons for not vaccinating). We are not suggesting that it ought to do so (although we do have our own views on the subject) but to make the case that it can do so in order to allow for a serious and informed debate as to what is the best course of action untrammelled by bogus reliance on constitutional rights.
Our argument begins with the scientific evidence of the safety and effectiveness of vaccinations in general and in particular those that target Covid-19. It then proceeds to argue that this evidence is a compelling public health justification for a government making Covid-19 vaccinations mandatory. The argument then has to move to a constitutional level and to identify what rights would be infringed and whether those rights could be justifiably limited as a matter of constitutional law rather than just a public health justification for legislation. As we have intimated, the answer is that it can.
Vaccines have been remarkably successful in eradicating infections and deaths from diseases such as smallpox, poliomyelitis, measles and meningitis. Take smallpox as an example. Smallpox killed every fourth person infected before the World Health Organisation’s global programme to eradicate the disease. It was eradicated in 10 years. Take poliomyelitis as another example. Polio vaccines have resulted in a 99% fall in cases over and over 5 million escaping paralysis since the launch of the WHO’s global programme to eradicate the disease. More recently, highly efficacious vaccines are demonstrating the potential to effectively control the spread of Ebola.
The WHO’s Expanded Programme of Immunisation targets six vaccine preventable diseases: polio, diphtheria, TB, whooping cough, measles and tetanus. In 1974 only about 5% of the world’s children were protected from these diseases; today, 83% are. South Africa participates in this programme and over the past 20 years, immunisation has saved millions of lives. It is estimated that the programme averts approximately 2,5 million lives a year. Most South Africans have been vaccinated under this programme.
Various Covid-19 vaccines have been developed, found to be safe and effective, and have been deployed in record time to provide protection for individuals against serious disease and death. Globally, more than 4,7 billion doses of Covid-19 vaccines have been administered across 183 countries and vaccines have reduced case numbers in places where they have been widely distributed. There are several Covid-19 vaccines that have been evaluated by WHO for emergency use listing. Similarly, the South African Health Products Regulatory Authority has authorised the use of Covid-19 vaccines in South Africa, including the mRNA Pfizer vaccine, the Ad26 JNJ vaccine, and more recently, has a rolling submission for Sinovac approval. These vaccines provide a high degree of protection from severe disease and death. Initial studies were not designed to evaluate transmission, however data from effectiveness studies appear to be promising regarding an impact on transmission.
It has been reported that nearly all Covid deaths in the US are now among the unvaccinated. The California Department of Health and Environmental Control in a recent analysis has shown that 90% of Covid-19 cases and deaths in June 2021 and 86% of hospitalisations were among people who were not fully vaccinated. The CDC has shown that since 26 July 2021, there have been 6,587 reports of break-through infections that resulted in hospitalisation or deaths among 163 million fully vaccinated people, a percentage of 0,01% or less. New strains have caused renewed outbreaks, putting unvaccinated people more at risk, dubbed a “pandemic of the unvaccinated” by the CDC. Similar reports regarding impact on mortality have been reported from the UK, where it is estimated that around 60,000 deaths have been prevented in England as a consequence of Covid-19 vaccine roll-out.
To fully exploit the value of Covid-19 vaccines it is imperative that a rapid scale-up ensues. Given the transmissibility of the virus it is evident that high rates of vaccination coverage are going to be critical in managing the pandemic. The speed and distribution, including geographic distribution of a vaccine roll-out strategy will be important in attempts to control SARS-CoV-2. Factors such as vaccine hesitancy, the emergence of new variants, the delay in vaccinating children will impact on vaccine coverage and impede our ability to control SARS-CoV-2.
Given the tremendous public health benefit of Covid-19 vaccination and its role in controlling the pandemic, all efforts are required to ensure rapid vaccine roll-out. The Covid-19 vaccine supply has now been secured and those over 18 years and older are eligible for vaccination, enabling a more strategic approach to vaccine access, even the consideration of making it mandatory in specific or all circumstances.
To understand our constitutional argument, it is necessary to briefly outline how the South African Constitution works. The Constitution guarantees 27 constitutional rights, of which two are relevant to this argument: the right to bodily integrity in section 12(2) of the Constitution and the right to freedom of religion, belief and opinion in section 15(1) of the Constitution. Just as an individual is free to refuse medical treatment or undergo surgery without consent, an individual is free to refuse to be vaccinated. That is the right that is being protected in section 12(2). Compulsory vaccination would infringe that right. Just as an individual is free to refuse to undergo medical treatment because of religious beliefs, compulsory vaccination would infringe upon that right. But no right is absolute – a right is always capable of being circumscribed if there is a compelling public interest in limiting it.
That is how section 36 of our Constitution guides the legislature and courts in determining whether legislation infringing upon rights may or may not be justifiable. What is important in this justifiability enquiry is whether the importance of the purpose of the limitation (public health) outweighs the interests protected by the right (body integrity or religious beliefs) and, if so, whether the limitation is the least restrictive means to achieve that purpose. Important too in such an inquiry by a court is what other open and democratic societies based on the values of human dignity, equality and freedom do in similar circumstances.
Let us then engage in this limitation analysis to determine whether the government could pass legislation requiring all South Africans to undergo Covid-19 vaccinations (subject always, of course, to availability and medical conditions).
Let us consider firstly the nature of the two rights – they are deeply personal rights closely tied to the right to human dignity and accordingly rights that cannot lightly be interfered with. Then let us consider the purpose of the limitation. We have made the argument that there is a compelling public health purpose to the limitation. Let us recap. The purpose is to secure, through Covid-19 vaccines, protection against death and severe disease and to prevent further infections, thus reducing the risk of ongoing mutations of the virus into variants of concern that may impact on vaccine efficacy. Most importantly, Covid-19 vaccine roll-out will limit fatalities and the seriousness of the infection. That in turn relieves the intensive care facilities in hospitals, protects healthcare workers, enabling them to answer the needs of others with intensive care needs who otherwise may have been turned away. A more compelling public health purpose is hard to imagine – more than sufficient to outweigh the deeply personal nature of the rights.
The first port of call in engaging in this analysis is to engage in a comparative enquiry into how other democratic societies have dealt with this phenomenon. We take the most conservative constitutional court in the democratic world as the benchmark for our necessarily brief analysis, namely the US Supreme Court. For over a hundred years, the US Courts, including the Supreme Court and the State Supreme Courts, have, despite religious beliefs, held that laws that require vaccinations for smallpox and vaccinations of children to enter public schools are constitutional on compelling public health grounds. As a result, all 50 of the states in the US, including the District of Columbia, have established vaccination laws for public schools.
Washington State in the USA has announced a new state-wide vaccine proclamation, requiring state workers, those in private healthcare, long-term care settings as well as other congregate settings to be vaccinated against Covid-19 to be able to continue to work. California and New York have issued similar mandates. The US Pentagon has also mandated that active military personnel be vaccinated by mid-September 2021.
But that is not the end of the analysis. Any limitation of a right, even if there is strong comparative law support for the limitation and a compelling purpose that weighs heavily on its side of the scale, must be proportional taking into account the extent of the infringement, the relation between the purpose of the limitation and the infringement and whether less restrictive means could have been employed to effect that purpose. Well, the extent of the limitation is a prick on the arm for free. The relation between the purpose of vaccination and the limitation is demonstrably clear – it is to end the pandemic and limit the harm in between. Physical distancing and masks, although effective in restraining the transmission of the virus, have not constituted less restrictive means to end the pandemic or limit the serious effects of infection in the way that vaccination has.
Accordingly, it is so unlikely that our Constitutional Court would come to any other conclusion if the government decided to pass legislation to require every person in South Africa or entering South Africa to be vaccinated. The object of our argument is not to argue for such legislation but to open the debate free from constitutional red herrings on whether we may have arrived at the stage to pass some legislation to either require compulsory legislation or to permit directions made under the Disaster Management Act regulations to permit gyms and sports stadiums to avoid the restrictions on numbers if they restrict entry to only those that have proof of vaccination, as France, the City of New York and the City of San Francisco has recently done. And many other cities and countries are going to do it. DM