Fine lines

The case numbers of new COVID-19 infections here and around the world make it clear that we are still in the teeth of the pandemic. While we have learned much about the virus and developed or found effective counter-meassures – masking, ventilation and vaccines – the continued evolution of the virus has placed increasing pressure on governments.

This pressure comes from more than one direction: On one hand, it is essential that governments do what they can to stymie the spread of the virus, to protect the most vulnerable and prevent it from overwhelming our health systems; on the other hand, there is pressure to avoid measures that completely shut down sectors and services, many of which have seen heavy losses due in part to governmental restrictions, which have in turn led to the loss of jobs and income for many at a time when they are most in need.

Treading a line between those two imperatives – restrictions and allowances – is an extremely difficult task, but in recent months, many governments have focused their policies in a similar direction. Around the world, those who remain unvaccinated against COVID-19 face an increasing number of regulations that only apply to them. The unvaccinated are being restricted from certain public spaces or large gatherings, and in nations such as Austria and Greece, remaining unvaccinated under certain conditions is enough to merit a punitive (and substantial) fine.

These restrictions have caused anger and unrest among the unvaccinated members of the population. In Germany, Canada, France, Lebanon, Austria and Italy; protests have broken out, with more than 100,000 protesters in France alone earlier this year.

Inequality of treatment will always cause friction in a populace, and it is unquestionable that such inequality exists when one category is prohibited from doing what another can. Yet the government can and does make such distinctions with regularity – adults have rights minors do not possess, only those who pass the appropriate examinations can practice law or medicine, and those who are found guilty of a crime are subject to incarceration. As such, the issue is not whether or not inequality exists in the treatment of the unvaccinated – it is whether or not such inequality is within the scope of what the government is allowed.

In many democratic nations, this becomes an issue of equal protection under the laws. In the Philippines, under the 1987 Constitution, this right is guaranteed in the very first section of the Bill of Rights, and made distinct and separate from the right of due process in order to clearly establish that there must be no unwarranted favoritism or prejudice from the government. The right does not mean that all laws must apply to all people and apply in the same way without distinction. What it means is that the government must treat “similarly situated individuals in a similar manner.” This was part of the decision of the Supreme Court in the case of Biraogo v. Philippine Truth Commission of 2010, and while other cases have discussed the right of equal protection, few have done so as clearly.

In Biraogo the Court reminds us that far from prohibiting differential treatment, the equal protection clause permits classification – it’s just that this must be a valid classification. In our jurisprudence, a valid classification must pass the test of reasonableness, which has four requisites: (1) the classification rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing conditions only and (4) it applies equally to all members of the same class.

Would making a distinction between vaccinated and unvaccinated people pass the test of reasonableness, in a law that is meant to protect public health and safety? In most cases, yes. Vaccines are created to stimulate your immune system and allow it to produce defenses in advance of being exposed to the virus. This means in the case of COVID-19 that a vaccinated person is much less likely to be infected, and even if they are infected they are much less likely to get seriously ill and are likely to clear the virus faster and have lower levels of the virus overall, which would in general make them less contagious.

In a law aimed at public health and protection against COVID-19, it would be very germane to the law to make a distinction between the vaccinated and the unvaccinated. Barring provisions violative of the third and fourth requisites of the test, such a distinction would be valid and reasonable.

Of course, a valid classification alone is not enough. It must also be implemented in an equitable manner. As the Court states in Biraogo (citing the American case of Edward Valves Inc. v. Wake Country): “The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state’s duly constituted authorities.”

The fact that persons are unvaccinated (through their own choice or not) does not in any way deprive them of their rights, as human beings or as citizens. While the State has the power and – more importantly perhaps, the obligation – to curtail some of these rights in the service of the common good, such as the protection of public safety and health, it’s important to remember that those rights never cease to exist. Although the State has the obligation to protect the welfare of the greater good, it must do so with the careful awareness of the rights of the citizens who are forced to sacrifice in the name of the greater good. A citizen who is unvaccinated is not only unvaccinated, but is an intersection of a multitude of things. Wise and empathetic policy must take those intersectionalities into account.

Finding the balance between the rights of the unvaccinated as individuals and the general welfare of the public is another fine line to traverse. But it is a line that must be walked, nevertheless.