In a major judgement delivered on May 2, 2022, the Supreme Court ruled that Covid-19 vaccines cannot be mandated. The reasoning behind the decision was based on a sound interpretation of available scientific evidence, even while recognising the public health value of vaccines. The judgement was directed at vaccine mandates imposed by some state governments. How does the verdict reconcile with the tenet that collective public safety must outweigh individual rights during an infectious disease outbreak? While stating that “as long as there is a risk of spreading the disease, there can be restrictions placed on individual rights in larger public interest”, the judgement held that, in the present case, scientific evidence indicates that the risk of unvaccinated individuals spreading infection is “almost on a par with that from vaccinated individuals”. The court directed that all restrictions placed on unvaccinated persons, in terms of “access to public places, services and resources” be recalled.
Vaccine mandates have been a matter of controversy globally during the Covid-19 pandemic. They have been part of international travel restrictions and often been used to regulate inter-city and inter-state travel too in some countries. They have been used, in some cities, to control entry to restaurants and places of entertainment. This was based on the premise that an unvaccinated person is far more likely to get infected and transmit the virus to others, posing a danger to society. This premise holds true in the case of diseases where the microbe is highly infectious, the disease caused is severe and, most important, vaccinated persons are highly protected for a long time from getting infected thereby posing no danger to others. These considerations hold good for a disease like measles, where the virus is not only highly infectious and dangerous to children but has a vaccine which provides long-lasting 97% protection against infection. So, schools are justified in asking for a measles vaccine certificate from students seeking admission so that other students are not at risk.
In case of Covid-19, the risk to individuals appears to have mitigated with the evolution of Omicron and its sub-variants, though its highly infectious nature makes it a threat at the population level where many persons with low or fading immunity are at a risk of serious illness. Covid-19 vaccines have shown diminished protection against mild illness from Omicron and its sub-variants while they retain a fair level of protection against severe illness. The immunity they evoke helps the body to fight the virus after it enters our nose or throat, but does not prevent the entry itself. While the virus stays and replicates in the upper respiratory tract, it can infect others. Omicron, which proliferates profusely in the nose, can infect others for a few days even as the body fights to overcome it. This happens with vaccinated persons too. The duration of infectivity is likely to be lower in vaccinated persons, as their illness is milder and short lasting. However, they too can transmit the virus when infected, if they do not wear a mask. The guiding principle of protection against Covid-19 is “if you do not want to get seriously ill, get vaccinated; if you do not want to get infected wear a good face mask.” That justifies a mask mandate, when the virus is actively circulating and case counts are rising. Persons with low immunity or severe co-morbidities are still at high risk from an infected person, even if illness is mild in that person. So, wearing a good quality mask is essential for everyone in public places and transport. This is especially important in closed spaces where crowds gather. Here, public health protection takes precedence over individual rights. There is adequate scientific evidence by now that masks, if properly worn by all, greatly reduce the risk of person-to-person transmission.
While vaccine mandates must not be imposed, people must be persuaded to get vaccinated for their own protection. Though it is an individual’s choice and a right to decide whether to get vaccinated, the benefits of gaining protection against severe illness must be clearly explained, to motivate self-referral for vaccination. Incorrect claims that getting vaccinated would completely stall infection caused a backlash when break through infections started showing up even in persons who received boosters. It is important to provide clarity to the public that systemic immunity stimulated by vaccines vigorously fights the virus after it gains entry into the body, even if it does not prevent the entry.
The Supreme Court also directed that scientific information from vaccine trials must be placed in the public domain for independent scientific experts to evaluate and for the public to be assured that the right vaccines have been approved for the right reasons. This too will boost vaccine confidence. The top court has not only upheld the individual right of choice when current scientific evidence does not justify a vaccine mandate, but has also laid out clear guidelines on where public health must take precedence and why science based public policy must be transparent. This is a landmark judgement.
The author, a cardiologist and epidemiologist, is president, Public Health Foundation of India Views are personal