Vaccination: Freedom and Responsibility

Ethical Aspects of the COVID-19 Vaccination (1)

Ulrich H.J. Körtner

Austrian Commentaries on Medical Law, Medical and

Bioethics (IERM Working Paper No. 4) January 2021
1 paper

(1) Presentation at the ÖGKV question time “Covid 19 vaccination" (online) on 21.01.2021

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Austrian Commentaries on Medical Law, Medical and Bioethics (IERM
Working Paper No. 4)
January 2021

published by the
Institute for Ethics and Law in Medicine, University of Vienna

in cooperation with the professorships for

Health Care Ethics and Public Law at the University of Graz

© by the author
ISSN: XXXXXXX-XXXX
Editorial office: ierm@univie.ac.at
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Suggested citation: Körtner, Ulrich H.J. (2021): Vaccination: Freedom and Responsibility.
Ethical Aspects of the COVID-19 Vaccination. Austrian Commentaries on Medical Law,
Medicine and Bioethics (IERM Working Paper), Number 4, Vienna.

Ulrich H.J. Körtner

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Vaccination: Freedom and Responsibility - Ethical aspects of COVID 19 vaccination
Freedom, solidarity, responsibility, justice - these are central ethical values in the Corona
pandemic. The debates about the appropriate strategies adopted to contain the pandemic
revolve around how freedom and responsibility can be balanced. One concrete example of the
tension existing between freedom and the common good as well as between personal
responsibility and responsibility towards others is the attitude towards vaccination. This article
discusses the main ethical issues that arise in the context of vaccination against the COVID-19
virus.

Keywords: vaccination -compulsory vaccination -COVID-19 -freedom -responsibility -solidarity

-justice -logistics -allocation

1. Freedom and responsibility in the Corona Pandemic

Freedom, solidarity, responsibility, justice - all of these are central ethical values in the Corona
pandemic. The debates on the appropriate strategies to contain the pandemic essentially
revolve around the question of how freedom and responsibility can be balanced. In this
context, it is first necessary to clarify the actual goals of political action and of pandemic
protection. Who or what is to be protected? The usual answer given is the protection of
human life and the particularly vulnerable groups of the population, especially the elderly,
among whom the number of severe cases of disease, especially infectious diseases is higher.
The aim is also to protect the lives of the elderly, amongst whom the deaths from serious
illnesses and infections is particularly high. The aim is also to protect the health system and
prevent intensive care units from reaching the limits of their capacity, which would result in
hard triage decisions.
In the course of the pandemic the following problem arose: personal responsibility is seen as
first and foremost for one’s own life and no longer to the same extent for the community and
the common good. However, it could be said that it is in one's own self-interest to show
solidarity.

2. Vaccination as an element of the overall strategy

A concrete example of the existing tensions between freedom and the common good, and
between personal responsibility and responsibility towards others, is the question of
vaccination. In Austria willingness to have the vaccine is not all that high. If we do not want to
keep going from one lockdown to the next, we need a strategy based on several pillars,
including, for example, nationwide and regular testing. It is clear, however, that the Corona
pandemic cannot be ended without widespread vaccination. A further goal must be the
development of antiviral therapies. However, as long as these tools are not yet available,
vaccination against COVID-19 is a top priority.
Let us also bear in mind that measures taken so far to combat the Corona pandemic may have
saved human lives, but they also came at the cost of social, economic and health

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disadvantages and even damage. Think of the results of infection control measures - patients
who did not go to the doctor or the hospital outpatient departments when they were
suspected of having a heart attack, postponed operations the psychological consequences of
weeks of isolation, the growing confusion in people with dementia, and the general
deterioration in the condition of residents in homes for the elderly. Think as well of the
damage done to children and young people in the field of education. Some gaps in education
will not be easily closed, especially among already disadvantaged children from educationally
deprived backgrounds.
It is all the more urgent to hope that vaccination against COVID-19 will also be possible for
children and adolescents, especially since the virus mutation B.1.1.7 is particularly infectious
for them. Studies on this are already underway. However, the available vaccines are currently
not approved for children and adolescents. The vaccine from BioNTech/Pfizer may only be
administered to persons aged 16 years and older, while the vaccine from Moderna may only
be administered to persons aged 18 years and older. Without vaccinations for children and
adolescents, it will probably not be possible in the long run to keep normal schools or
kindergartens and day-care centres open.

3. Pro and contra compulsory vaccination

The vaccines now approved give protection against the virus and the severe course of the
disease. According to current knowledge, however, it cannot be assumed that vaccinated
persons can no longer infect others, i.e. that they are sterilely immune. The vaccines already
approved by BioNTech/Pfizer and Moderna give 94-95 percent protection. The vaccine from
Astra Zeneca, which has not yet been approved in Europe, is less effective (60-70 per cent). It
is also unclear whether it is suitable for people over 55 years of age.
Politically, legally and ethically, it is controversial whether vaccinations should remain
voluntary or whether compulsory vaccination should be considered. Compulsory general
vaccination cannot be justified until it is absolutely certain that vaccinated people cannot
infect other people. It might also be a problem from the point of view of labour law to make
vaccination against COVID-19 (SARS-CoV-2) an occupational requirement for health
professionals, for example. The situation will be different if in future private companies such
as airlines, demand proof of vaccination for passengers. It is also conceivable that countries
might require proof of vaccination for entry, as is the common practice for other diseases,
such as yellow fever.
Even if there is no legal justification for compulsory vaccination, I believe that there is a moral
obligation to be vaccinated, because fewer patients in the COVID wards and intensive care
units relieves the burden on the health system. We are all jointly responsible for ensuring that
the health system continues to function efficiently. The risk associated with vaccination is
apparently very low with the vaccines currently approved in Europe, although a general
distinction must be made between reactions to the vaccine (swelling, redness or pain at the
injection site, fever, headaches or fatigue) and long-term vaccine damage.

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When I speak of a moral obligation, it is not because I believe that everything else must take
a back seat to the protection of human life and the protection of the health system. Already
in the spring of 2020, the President of the German Bundestag, Wolfgang Schäuble, declared
in an interview that one should not make the protection of life absolute.
"Basic rights," says Schäuble, "are mutually limiting. If there is an absolute value in our Basic
Law at all, it is human dignity. It is inviolable. But it does not exclude the fact that we have to
die." And he added: "The state must guarantee the best possible health care for everyone. But
people will continue to die from Corona too." These sentences are not to be understood in a
utilitarian sense. However, they rightly point to a basic theory of modern medicine and state
health care.
It can be argued that the freedom to live and the dignity of the human being, which may not
be set off against other goods, includes the freedom to die, i.e. also the freedom to take health
risks on one's own account if life and health are declared to be the highest good, the inevitable
consequence is paternalism, which leads to the infantalisation and deprivation of the right of
decision. The laudable principle of protecting particularly vulnerable groups of people from
COVID-19 must not lead to the infantalising of patients and residents who end up being
protected to death from themselves because bare survival is achieved at the expense of social
death, namely the disproportionate restriction on visiting and the loss of freedom. The limits
of my freedom and my right to engage in risky and possibly self-harming behaviour are, of
course, reached when my behaviour puts other people in danger. It should also be borne in
mind that in today's society we depend on a strong welfare state and a functioning health care
system precisely for the sake of our liberal way of life. In order to maintain this functioning
health care system and to ensure that individual hospitals and care facilities can operate,
restrictions on individual freedom are not only legally but also ethically permissible. However,
depending on the course of the pandemic, the proportionality of such restrictions must be
reviewed and corrected.
Human dignity and the right to life belong together. While the right to life was originally
conceived as a defensive right, it has increasingly become a participatory right due to medical
progress. The right to life now also implies the individual's right to optimal health care. Health
is an individual right and an individual good. In the case of protection during the epidemic,
however, it is also understood as a supra-individual good. But to what extent can health be
legally and ethically defined as a collective good? As individual rights of defense, fundamental
rights such as the right to life and the right to privacy include not only protection against
attacks or encroachments by third parties, but also protection against the state. But how far
does the right to protection by the state from a collective threat or even from reckless actions
by third parties that harm others extend? For an example: look at compulsory vaccination
against measles in France (since 2018) and in Germany (since 2020) which is a prerequisite for
children to be allowed to attend kindergarten or school. As soon as vaccines against COVID-
19 are also available for children and adolescents, the familiar controversies with vaccination
sceptics and parents opposing vaccination can be expected to recur.

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 4. Vaccination readiness in health professions
As I have already said, we should also be cautious about calling for compulsory vaccination
among health professionals at the present time. However, because the extremely tense
situation in the hospitals and care institutions depends on each and every one of them, I see
these people as being particularly challenged to take care of their health - and not only in their
own interest, but because patients and residents are very dependent on their help.
The lack of willingness among nursing staff to carry out vaccinations apparently has several
causes. As one often hears and reads nursing staff do not feel sufficiently informed. Brief
information for health care workers on COVID-19 vaccines based on mRNA is available at
file:///C:/Users/Ulrich/AppData/Local/Temp/Kurzinformation%20f%C3%BCr%20Gesundheitsper
so-naldocx.pdf . It is also a serious political omission that nursing staff with their expertise has
either not or only marginally, been included in the political decision-making processes and
strategy developments. The lack of willingness to vaccinate is probably also an expression of
protest against the lack of appreciation of what nurses have already done in the pandemic
and what they must continue to do. This protest is justified, and one-sided moralising or
insinuations of a lack of ethical awareness are therefore inappropriate when directed against
a group that already has a high level of professional ethics.
For female nurses of childbearing age, there may be additional health concerns. Pregnant
women have not been studied in vaccination trials to date. For this reason, pregnant women
cannot and should not be vaccinated, as stated on the information page of the Vienna
Vaccination Service (https://impfser-vice.wien/corona-schutzimpfung/ ). When vaccinated,
effective contraception should therefore also be used for 3 months after the second
vaccination."
Another circumstance also comes into play: among the members of the nursing professions
there are people with pre-existing diseases, allergies or other health risks that possibly contra-
indicate vaccination. The question of how to deal with the vaccination issue in general in clinics
and care facilities and on how to deal with it in the team when there are colleagues who
cannot or do not want to be vaccinated for certain reasons is a matter for the supervisors.
However, offers of multi-professional, structured and process-oriented ethics counselling are
also desirable.

5. Debate on incentives and sanctions

It is debated whether the willingness to vaccinate and to be tested is better increased by
sanctions or by incentives (nudging). Two things need to be said about this. Firstly, the fact
that vaccination is free of charge for the entire population is in itself a privilege. To demand
additional incentives is unjustified. Secondly: at this point in time, when it will still take quite
a while before a large part of the population is vaccinated, it would be wrong to hold out the
prospect of early freedom of movement for vaccinated persons, i.e. visits to restaurants,
hotels or theatres. This would have fatal consequences for social cohesion. Consider what
effect such a regulation would have on the younger age groups, if they first had to accept
restrictions in order to protect the elderly who after having been given priority for

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vaccinations, were then allowed the freedom to lead a near normal life again whilst the
younger generation both had to wait longer for their vaccinations and continue to accept
further restrictions in everyday life and work.

The situation is different if a large number of people of all ages are vaccinated and sufficient
vaccines are available for all those who want to be vaccinated, but that still leaves the group
of people who do not want to be vaccinated. Of course, it must be remembered that there
are people who cannot be vaccinated for medical reasons. However, it is reasonable to
demand a negative test result from them. Furthermore, regular testing must be further
intensified and digital solutions for contact tracing and improvements in the collection of data
are necessary as measures to curb the spread of the virus

The social and political discussion is going in the wrong direction if regaining former freedoms
is described as a privilege. It is simply about suitable conditions for the restoration of
constitutionally guaranteed basic rights. It is not the freedoms that require justification, but
their curtailment. Talk of privileges throws us back into the pre-democratic mindset of a feudal
society.

In the field of nursing it is being discussed whether the willingness to be vaccinated can be
increased if it confers exemption from regular PCR tests or the waiving of the regular wearing
of FFP-2 masks. However, as long as it cannot be guaranteed that vaccinated caregivers will
no longer be able to infect other people, those who have been vaccinated will also have to
continue wearing masks. In general, however, it must be said that any relief in the workload
of the medical profession which results from vaccination does not represent a privilege, but
merely a lightening of the burden in an occupational field where there is already considerable
stress.

6. Prioritisation and allocation

As long as vaccines are not yet available in sufficient quantities, prioritisation is necessary. The
level of risk of disease is a decisive criterion and a question of justice. The fact that detainees
in prisons, asylum seekers or homeless people in cramped communal accommodation are
vaccinated before teachers or police officers has caused irritation here and there. But if
vulnerability is the basis, the prioritisation of these people is absolutely understandable. They
are exposed to a high risk and their freedom of movement prisoners, for example, – is severely
restricted. A society that does not recognise this would be inhumane. The vaccination plan of
the National Vaccination Committee (file:///C:/Users/Ulrich/AppData/Local/Temp/COVID-
19_Prioritisation_Nationalen_Impfgremiums_Version_3.0__20210112_(1).pdf) is admittedly
not a regulation, but a recommendation and also a document that is constantly being adapted
to the current situation ("a living document").

The logistical problems that have arisen in the procurement and distribution of vaccines
should also be addressed. Without discussing the political competences and responsibilities
in detail, it should be noted that logistics and allocation issues are medical ethical issues of the
utmost urgency, especially in a situation where every day counts and lives are at stake. To
justify delays at the start of vaccination in Austria with the argument that a simultaneous start

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of the vaccination campaign in all provinces was a question of justice is absurd, because this
led to vaccine doses that had already been delivered not being used for days and weeks.

The logistical problem which attends the delivery and cooling chains for mRNA vaccines, which
have to be transported and stored at minus 70 degrees Celsius before being warmed up to
refrigerator temperature and used within a few hours, also has ethical aspects. Due to these
technical peculiarities, it makes sense to set up vaccination centres. In Austria, the argument
has been raised that it is unethical to expect the elderly and infirm to be taken to vaccination
centres. The counter argument is that thawed vaccines can be used for only a short period of
time. Decentralised vaccination by general practitioners may be possible in individual cases,
for example in the case of bedridden persons, but it requires precise logistics - especially in
rural areas - which do not seem to exist at present.

If vaccine doses are left over from the vaccination of prioritised groups, which would
otherwise be unusable if left, suitable people already on a waiting list should be found. The
reporting of surplus doses and coordination can, for example, be done via a hotline. In any
case, transparency should be demanded. This is a question of justice. Besides being unethical
those known cases of local politicians who were vaccinated in advance also undermine the
trust of the population.

To the extent that the existing priority list can remain valid if the mutation B.1.1.7 spreads
faster than the vaccinations are carried out is an open question. Up to now, the very old and
people aged 70 and older have been considered particularly at risk. However, if the risk of
severe disease, possibly fatal or long-term, increases among younger people as a result of the
mutant, changes in prioritisation may be considered necessary

7. Global justice issues

In retrospect, it is easy to criticise the EU for ordering too few vaccine doses at the beginning.
The situation was further aggravated by a disastrous start to the vaccination campaign, for
which the health minister and his civil servants are not solely responsible. What is important
is that we learn from these failures for the future. What can we learn from other countries?
Why, for example, have far more people in Denmark and Israel been vaccinated in a very short
time than in Austria? Why is there information on the number of vaccine doses already
delivered, but no precise daily data on the number of people who have actually been
vaccinated? A daily updated vaccination register is just as desirable as the acceleration of the
nationwide establishment of an electronic vaccination card.

However, humanity, solidarity and justice must not end at the borders of our country or at the
borders of Europe. The EU's strategy of negotiating together with the vaccine manufacturers
and dividing up the quotas by mutual agreement was the right one. It was also right to
coordinate vaccinations across Europe in order to restore freedom of movement within
Europe as quickly as possible and to be able to reopen the borders. In the meantime, however,
the pressure has grown in the member states to buy additional quotas on their own. Europe
would be in a bad way if, in the end, it was everyone for themselves.

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In the domestic political discussion, the poorer countries are being lost from view. The
President of the German Bundestag, Wolfgang Schäuble, rightly warns: "We cannot make our
impatience the measure of all things and snatch the vaccine away from people in poorer
regions of the world". Unfortunately, you do not hear anything like that from domestic
politicians.

The Covax initiative of the 20 leading economic powers, which wants to make two billion
vaccine doses available to the World Health Organisation by the end of the year, remains a
declaration of intent for the time being. NGOs have joined forces in the People's Vaccine
Alliance. The word of the churches is also needed here.

Author:
O. Univ. Prof. Dr. DDr. h.c. Ulrich H.J. Körtner
Institute for Systematic Theology and Religious Studies, Faculty of Protestant Theology,
University of Vienna, Schenkenstraße 8-10, 1010 Vienna;
Director of the Institute for Ethics and Law in Medicine, University of Vienna, Spitalgasse 2-4,
Hof 2.8, 1090 Vienna(https://ierm.univie.ac.at/)
E-mail: ulrich.koertner@univie.ac.at
Homepage: https://etfst.univie.ac.at/ueber-uns/team/ulrich-koertner/