Seite - 283 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

283Should Immunity Licences be an Ingredient in our Policy Response to COVID-19? In our view, this is a too hasty conclusion. The claim we want to explore in the final section of this chapter is that the defence of immunity licences against the equality argument holds only if no other policy tools can achieve these goals while being less costly with respect to the value of equality. Going back to our interpretation of the principle of “least infringement,” immunity licences would be ethically acceptable only if they did in fact pose the least threat to equality, compared with other policy tools that have the ability to achieve similar safety objectives. Are immunity licences “least infringing” with respect to the value of equality? The primacy afforded the value of equality—both in the general ethics of a liberal democracy and in its constitutional order— means that before we opt for a measure that is offensive to that value, we should look for measures that do not offend against it, or that do so in a more minimal way. There should be a presumption in favour of equality-promoting or at the very least inequality-minimizing measures. Clearly, the goal of policy measures in the post-confinement, pre-vaccine, or pre-herd immunity phase of the pandemic is to control the spread of the virus, and the level of restriction that is required to achieve this goal may vary as new evidence comes in.10 As we emerge from confinement, we should choose the most egalitarian policies available, taking into account that confinement is, in and of itself, an inegalitarian policy that trades on a resource that is massively unequally distributed—namely, the quality of the spaces in which people confine. Emerging from this situation should not exacerbate inequity if alternatives exist. Are there ways to achieve safety goals that are less offensive to the value of equality? We think there are. Governments can reduce the potential spread of the virus, not by limiting individuals but rather through a community approach that redesigns the context of our interactions to make them (safely) equally accessible to all. Such an approach would for example favour the efficient use of space and time through creative and thoughtful redesign. For example, the expansion of shared spaces and the time they are available, physical distancing, and the wearing of face coverings within these spaces are among the tools that we can use to emerge from confinement together—united in a shared predicament and a shared fate—rather than conferring privileges on those who can prove immunity.11 10. Colleen M Flood & Bryan Thomas, this volume, Chapter A-6. 11. Daniel Weinstock, “A Harm Reduction Approach to Physical Distancing”, in Meredith Schwartz, ed, The Ethics of Pandemics (Peterborough: Broadview Press, 2020) [forthcoming in August 2020].