Page - 280 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE280 aim to contribute conceptual clarity to this debate by distinguishing between empirical and normative arguments that are being employed in opposition to this tool. We conclude by focusing on some normative objections that, we will argue, need to be taken quite seriously before we decide whether or not to adopt immunity licences as part of our overall mix of policy responses to COVID-19. Empirical Objections The first set of empirical objections concerns the reliability of the sero- logical tests currently available. Such tests would require a high level of accuracy for their widespread use to be morally justifiable. If they generate too many false positives, they will only serve to give false assurance to people actually at risk of infection. Currently, we also lack an evidence base that the presence of antibodies confers immu- nity, and whether the immunity it might confer is long-lasting. Such empirical uncertainty is at the basis of the World Health Organization’s current opposition to the use of such licences.4 The second set of empirical objections relates to possible per- verse incentives that the use of immunity licences might generate. If they were to become a condition of employment, travel, or access to highly prized leisure or cultural activities, one could imagine a black market of counterfeit licences emerging, or even people becoming so desperate to acquire one that they voluntarily seek to infect them- selves, with all of the attendant risks this would give rise to at the individual and collective levels. Moreover, if immunity licences were to acquire widespread currency, they could become a tool in the arse- nal of states to police and impose surveillance on their citizenry, in a manner that would, moreover, most likely target already marginal- ized or racialized communities disproportionately.5 The third and final set of empirical objections relates to the reg- ulatory challenges of ensuring fair access. Minimal fairness would require that citizens have equitable access to serological tests and to 4. “‘Immunity Passports’ in the Context of COVID-19” (24 April 2020), online: World  Health  Organization <www.who.int/news-room/commentaries/detail/immunity- passports-in-the-context-of-covid-19>. 5. Françoise Baylis & Natalie Kofler, “Why Canadians Should Fight Tooth and Nail Against Proof-of-Immunity Cards”, CBC News Opinion (7 May 2020), online: <www.cbc.ca/news/opinion/opinion-pandemic-coronavirus-immunity- passport-1.5551528>.