As COVID-19 infection rates remain high, many wonder when and how life will return to normal. The policies currently in place to limit the number of new infections have primarily focused on restricting movement and access to public spaces. While this has helped limit the spread of the virus, it has also resulted in one of the largest global economic recessions in decades. The combination of unemployment, fragmented trade streams, a reduction in spending, and a reduction in local and international travel has led experts to predict a global economic contraction of GDP of just over 5%. Leaders in several countries, most notably Chile, the United States, the United Kingdom, and Germany, have considered the creation of immunity passports as a potential strategy to safely reopen and stabilize their nation’s economies. An immunity passport is an official document that would certify when an individual has acquired immunity, either through infection and subsequent recovery or by vaccination, to COVID-19. While immunity passports could provide national and local governments with a way to return to pre-pandemic life, several practical, legal, and ethical considerations raise questions about the efficacy of such a program.
If governments hope that immunity passports will effectively limit the spread of COVID-19, there needs to be more clarity and certainty regarding a standardized definition and test for COVID-19 immunity. Scientists do not currently know how quickly immunity is acquired by individuals who contract the virus naturally, how long immunity to the virus lasts, and whether immunity with one strain is sufficient to prevent severe infection with other COVID-19 strains. Some scientists estimate that COVID-19 immunity only lasts two to three months. Without this information, early observations indicate that there may be scenarios where an individual has acquired immunity to the virus and re-enters public life only to be re-infected by the same or another strain of the virus within several months. Upon reinfection, this individual would continue to spread the virus and may possibly carry as much risk of acquiring a severe and life-threatening infection as an individual who has not yet encountered the virus. If the goal of immunity passports is to limit the number of COVID-19 infections, implementing such a policy without more information about the nature of COVID-19 immunity seems premature.
The accuracy of COVID-19 serology antibody tests also remains unclear. While FDA-approved serology tests boast an ability to identify true positives at an accuracy of 94% and true negatives at 96%, MIT mathematicians have noted that, on a larger scale, the number of false positives could be significant. As a result, these mathematicians have recommended using these tests only to identify trends in certain populations and regions. The Center for Disease Control and Prevention (“CDC”) has also indicated that it intends to use serology test results in assessing large-scale trends in virus transmission and understanding the populations contracting the virus. If governments do decide to use these tests as a barometer to determine whether individuals can participate fully in public life, the prevalence of false-positive antibody tests could undermine the effectiveness of the program.
In addition to addressing practical considerations concerning the accuracy and reliability of antibody testing, it is expected that national governments will need to engage in bilateral or multilateral agreements in order for immunity passports to be effective across borders. It is currently unclear whether the immunity passports under consideration would be used to ease international travel restrictions currently in place, or whether they would only be effective in the country that issued them. If the intent is to require immunity passports from international travelers, the standards set for assessing immunity and issuing the immunity passport would need to be consistent across the globe, or at least across the nations participating in any immunity passport policies. At this stage in the pandemic, with many nations still lacking access to vaccines, implementing immunity passports on an international scale could exacerbate global inequalities by economically alienating countries without the resources for large-scale antibody testing and vaccine distribution.
States will likely face the same challenges that nations will face in establishing consistent immunity passport standards and verification systems. At this time, it is not clear whether immunity passports would be implemented under state or federal authority in the U.S. The federal government could use the Commerce Clause to require immunity passports in public places and on any interstate means of travel, but it is not clear whether this would apply to private institutions and on private property. States may have more authority to impose such a policy, but consistency could become an issue as many governors have already demonstrated drastically different approaches to dealing with the coronavirus. In the case of inconsistent policies among states, individuals without immunity passports may seek to participate in the economies of those states where passports are either not required or more easily acquired. This may undermine the intended goal of implementing the program to reduce infection rates.
The role of immunity passports as gatekeepers to economic participation also raises several ethical concerns. First, until COVID-19 vaccines become readily available on a global scale, without widespread vaccine distribution, immunity passports serve as a proxy for immune ability. This could result in tiering of society on the basis of immune status. If proof of immunity becomes a requirement for in-person employment and any economic participation outside the home, those individuals who are unable to attain immunity for medical reasons may experience discrimination. While immunity status is not currently listed as a disability under the Americans with Disabilities Act, the potential for discrimination on the basis of immunity may lead to legal questions about categorizing immunity status as a disability in order to protect individuals who may be excluded from the workplace.
Second, requiring proof of immunity will likely incentivize some individuals to acquire immunity passports through either fraudulent means or by intentionally contracting the virus. If governments implement immunity passports, the value of having one may create a black market system of fraudulent immunity documentation. Governments will also need to create a strong verification system in order to ensure the program is effective. The cost of creating and implementing such a system may outweigh the economic benefits that may be achieved by enabling in-person economic activity among those with the immunity passports. Should individuals seek to contract the virus so that they can legally acquire an immunity passport, the efforts to restrict transmission of the virus could be undermined. The benefits of contracting the virus and acquiring immunity would increase for individuals who the CDC considers to be at a decreased risk of acquiring a severe or life-threatening case of the virus. Individuals in high-risk categories would ultimately bear the costs of an increased infection rate.
Lastly, if the scientific community determines that COVID-19 immunity is not long-term, would such a policy require periodic vaccination in order to ensure consistent communal immunity? If that is the case, then policymakers will need to contend with the likelihood of reduced and inconsistent participation in the program while also weighing the inequalities that a policy requiring consistent access to medical care would exacerbate. For individuals who are uninsured or do not have access to health care, frequent testing and vaccination may not be realistically accessible. Such a policy may effectively exclude those without access to healthcare from legally participating in the economy. Periodic testing and multiple vaccines may also lead to low compliance in communities where bodily autonomy is highly valued. Whether this would exacerbate economic inequalities, lead to a black-market labor force, or lead to an increase in transmission by individuals who continue to seek out reinfection to acquire immunity, the program’s intended purpose might be undermined in the end.
Some governments considering immunity passports may believe that such a policy will provide an expedited return to economic and social normalcy. While promising, without more information about the nature and extent of immunity, uniform testing standards, and a robust vaccine distribution system, such a policy may not only fail to reduce infections, but it may deepen the economic inequalities that already exist.
About the Author: Gabriella Pico is a J.D. candidate for the class of 2022 at Cornell Law School. Prior to attending Cornell, she completed her B.A. in Public Policy and French at Hamilton College. Gabriella is a member of LALSA and serves as President of Cornell’s Cuban American Bar Association. Last spring, she participated in Cornell’s 1L Immigration Law and Advocacy Clinic where she provided direct services to DACA recipients in the Cornell community. Some of her academic interests include immigration, education, and health policy in the U.S.
Suggested Citation: Gabriella Pico, Immunity Passports: A Sick World’s Silver Bullet or a Security Blanket?,Cornell J.L. & Pub. Pol’y: The Issue Spotter, (Mar. 19, 2021), http://jlpp.org/blogzine/immunity-passports-a-silver-bullet-or-a-security-blanket/.