The coronavirus pandemic sweeping the globe, and the wave of conspiracy theories on its origins and the dangers of vaccinating against it, may be a new phenomenon, but the legal questions that have arisen around it in Israel are not.
About seven years before the pandemic's spread, Supreme Court Justice Esther Hayut – who now heads the institution – ruled that it is legal to impose sanctions on anti-vaxxers, who at the time had trained their sights on efforts to curb the country's measles outbreak. The court was asked to rule on a bill that reduces child benefit payments for parents who didn’t vaccinate their children, in a bid to encourage inoculation.
Attorney Netanel Posner, an expert on medical law who has researched Israeli court rulings on vaccination incentives and sanctions, says that this is “almost the only time the High Court has ever dealt with the issue of vaccines.” He also points to a 1989 National Labor Court ruling that stated that the state can demand medical checks of its civil servants, in case their medical conditions could impair their ability to work. But when it comes to the state's ability to inoculate a child against a parent's wishes, he says, there are contradictory rulings in district and magistrate's courts.
By force of the British Mandate-era Public Health Ordinance, the state can technically compel people to get vaccinated. Israel has used the ordinance before, ordering citizens to get inoculated or face jail time. It seems that the public by and large heeded the request, and the state never actually enforced the ordinance. That was the case in 1949, when cases of the smallpox were found in Israel; in 1952, for typhoid fever; and in 1994 and 2018-2019 with a measles outbreak. In some cases, children who were not vaccinated were barred from schools.
“The Public Health Ordinance, which gives the state authority to force people to get vaccinated, has one major flaw,” explains Prof. Gil Siegel, a legal scholar and trained physician who heads the Ono Academic College’s Center for Health Law and Bioethics. “The order is archaic. It originated with the British Mandate, and is not a law." Although it cannot be canceled out by Basic Laws legislated more recently, "its implementation will have to stand the test of constitutionality – which it won’t.” He adds, "Even if the Supreme Court accepts the possibility of vaccination by force, it would therefore need to decide to make use of effective alternatives that do less harm to basic rights."
Attorney Dr. Maya Peled-Raz, of the University of Haifa’s law department and head of its School of Public Health’s Community Health Program, explains: “The greater the infringement of individual rights, the more necessary it is to prove a solution's effectiveness and exclusivity in preventing infection.”
It won't be possible to force people to receive the coronavirus vaccine, she argues, due to uncertainty regarding certain aspects of it. For example, there is still a question of "how long the vaccine is effective for, and whether it even prevents contracting and spreading the infection – unlike morbidity, which it does prevent. Had there been proof that the vaccine eliminates the disease, perhaps the possibly of forcing it would have passed the test of proportionality.”
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Attorney Dr. Adi Niv-Yagoda, an expert on public health policy and medical law and a lecturer at Tel Aviv University’s School of Medicine and law department, says there are other measures that may be just as effective in convincing people to get vaccinated. “Israel hasn’t employed a policy of forced vaccinations or sanctions, and still 96 percent of the population received their routine inoculations,” he says. “Israel has proven it can succeed in vaccinating the population with information campaigns and providing accessibility. That is, we've succeeded in containing the pockets of ideological resistance, which are few in number. ”
But the coronavirus pandemic has changed the rules of the game. “Our problem now is that an entire industry of fake news has developed by that same ideological core [of anti-vaxxers]," he says. This raises doubts among those "who don’t share that ideology but are afraid, and in the meanwhile aren’t getting vaccinated: the swing voters” Niv-Yagoda adds. “If we rule out forcing people, and there’s an information issue, the question is, what more could be done that's legally acceptable to increase the number of people getting vaccinated?”
One of the proposals being debated is letting Israelis enter shopping centers, public transport and other public places only if they present a vaccination certificate or a negative COVID test. Dr. Assaf Harel, a constitutional law expert, notes that there should be a difference between sanctions that apply to essential needs and those that apply to luxuries.
The existing law allows barring people from public places if they show symptoms or refuse to present a medical statement, he explains, “but this only applies to the virus itself, and not the vaccine. I don’t see any legal option to block anti-vaxxers from accessing essential needs, such as purchasing food, for example, not even with new legislation.”
Prof. Aeyal Gross, an expert on constitutional law at Tel Aviv University, agrees. He says there’s a better alternative to sanctions, which is maintaining and enforcing the Health Ministry’s “Purple Badge” regulations, which are designed to limit the number of people in one place, particularly businesses. “We should be careful, because the temporary is the constant," Gross says, "and we might create public norms of a police state for the coronavirus period, but they will remain – you can’t always fix a dam that’s burst.”
While constitutional law experts largely oppose sanctions on anti-vaxxers, legal scholars who are also trained medical professionals see advantages to them. “I don’t see an issue with granting business owners the right – not obligation – to refuse an anti-vaxxer," Peled-Raz says, "that is, demanding a vaccination certificate as a condition for letting people in.”
She explains: “It may be possible to limit those who don’t get vaccinated in receiving services when these are given in-person and demand physical presence. Though we don’t know whether or not an unvaccinated person has an active infection, we do know that they’re at a higher, constant risk – that is an appropriate distinction to make, and isn’t discriminatory. Unlike making it obligatory – which wouldn’t work because Israel doesn’t really know how to enforce it – granting business owners the right to limit [entry] would be effective, because they should have an interest to do so, as customers seek a vaccinated environment.”
Peled-Raz argues that “Legal scholars draw a line and differentiate between a vaccine and a COVID test, but when you think about it, there’s no major difference between sticking in a needle or a swab.” She continues, “On the contrary – ordering tests would mean invasion and medical interference every other day, as opposed to the shot, which only happens twice.”
And what about employees who choose not to get vaccinated? Attorney Amir Basha, an expert on labor law who heads the Israel Bar Association’s committee on this topic, says that "There’s no legal requirement to get vaccinated, and therefore an employer can’t decide alone to bar an employee the right to make a living.”
He adds, “At most, the discussion should be about the employer potentially forcing an employee to present a negative COVID test. A test is also intrusive, but more reasonable.” Basha adds that other courses of action could include moving people to remote work, but not firing them, “and even then, only where the employee’s work environment is such that an unvaccinated worker puts others in danger.”