Page - 282 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE282 measures?7 From this more limited point of view (though not from the other), licences represent a gain in the space of liberty. Clearly, however, the adoption of immunity licences would cre- ate two categories of citizens with respect to the practices to which they would allow access. Holders of such licences would possess a range of opportunities that would be restricted for others, potentially across a wide range of domains. Would this inequality be ethically unjustified? Would it be an inequity? There are powerful arguments to the effect that it would not be. First, the objection to the effect that if everyone cannot be released from confinement, then no one should, is subject to the “levelling down” objection.8 In other words, immunity licences would make some people better off, without making anyone worse off. They are therefore Pareto-superior to the status quo of continued confinement. To object to such a Pareto improvement is, according to this objection, to fetishize equality as a formal rather than a substantive value and to forget that the moral point of egalitarianism is, after all, to make people better off than they would otherwise be.9 Second, the inequality that would be created by the deployment of immunity licences does not seem to be grounded in any kind of invidi- ous comparisons among persons or categories of persons. There are objective grounds for everyone to prefer that immunity licence-holders go back to work. The possession of relevant antibodies is not the same as reference to gender, race, religion, sexual orientation, and the like in objectionably discriminatory social policies. As noted by Persad and Emanuel, they are similar to the age limitations on driver’s licences: a way of protecting individuals and society as a whole from persons who do not possess relevant characteristics. In the context of a pandemic, not putting others at risk of infection counts as a relevant characteristic. The (Qualified) Normative Case Against Immunity Licences This pair of arguments would seem to dispose of the claim that immu- nity licences ought to be rejected due to their inegalitarian implications. 7. For the broader perspective, see for example Lawrence O. Gostin, Eric A Friedman & Sarah A Wetter, “How to Navigate a Public Health Emergency Legally and Ethically” (26 March 2020), online: Hastings  Center  Report DOI: <doi. org/10.1002/hast.1090>. 8. Persad & Emanuel, supra note 3. 9. Harry Frankfurt, “Equality as a Moral Ideal”, (1987) 98:1 Ethics 21.