Sharon Galper Grossman
Sharon Galper Grossman

Immunity passports, social equality, and Halacha

“No immunity passport, no entry,” announced the guard. He scanned the barcode on Sheila’s phone, then waved her into the event hall. But he banned her husband, Simon, the brother of the groom, because he had not received a COVID-19 vaccination. In Israel, these interactions became commonplace. To achieve a vaccination rate of 95%, reach herd immunity, and return to routine, Israel introduced its version of the immunity passport, the “green pass,” which allowed individuals with COVID-19 immunity — either from infection or vaccination (one week after the second dose) — to attend social, cultural, and sports events, gyms, hotels, and restaurants, and exempted them from quarantine after exposure to an infected individual or returning from abroad. Those eligible could obtain the pass, valid for a year, from the Ministry of Health website. Forging a green pass is a criminal offense.

The impact of the immunity passport policy on COVID-19 vaccination rates is unknown.  Of the 21% of Israelis who would refuse vaccination, 46% report that the immunity pass would not motivate them to do so.[1]  Other countries, including Chile and the UK, are considering implementing similar passes, with the goal of being able to relax public health measures and re-open their economies. Germany and Greece are reluctant to issue such passports because they fear both that the resulting tourists will introduce resistant strains of COVID-19, and that the policy will discriminate against those who refuse vaccination. The World Health Organization opposes immunity passports due to concerns regarding discrimination against the unvaccinated, uncertainties regarding the efficacy of vaccination in reducing transmission and limited availability of the vaccine.

An immunity passport must be standardized, protect the holder’s personal data, meet legal and ethical standards, link securely to travelers, comply with regulations of each country, and nearly impossible to forge or modify. For the immunity passport system to be effective, the authorities must first resolve several issues. These include determining the duration of the immunity that the vaccines confer; understanding whether vaccination prevents transmission overall and infection by current or future strains of COVID-19; and accommodating differences between the efficacy of the different vaccines and the changes in that efficacy in light of emerging COVID variants. Additional questions include: May employers require proof of immunity for employment?  May proof of immunity be a requirement for certain professions such as healthcare workers? May the government share information regarding vaccination status with the local school system to ensure that all teachers are vaccinated?

Those who favor immunity passports argue that there is precedent for policies requiring that people get medical clearance to travel, as historically visiting certain countries has required vaccination and prophylactic medication. For example, the World Health Organization (WHO) requires yellow fever vaccination for those planning to enter endemic countries. Currently, several countries, including the US, require a negative COVID-19 test for entry.

Critics are concerned that the policy will exacerbate social inequality. They fear that that the passports will facilitate human rights abuses and could violate privacy and free movement. In addition, immunity passports unfairly discriminate against those who cannot receive the vaccine due to medical contraindications, and young children, for whom the vaccine is not available. Most Israelis had the opportunity to get vaccinated quickly and became eligible for the passport. To make the vaccines accessible to all citizens, the government dispatched mobile vaccination units equipped with food, entertainment, and experts to answer the questions of those with concerns to areas with low rates of vaccination such as the Haredi city of Bnei Brak and remote Arab villages. Access to the vaccines varied dramatically between countries and even within countries. Low-income countries might not have access to the vaccine until 2022. High-income countries, which comprise only 14% of the world population, have reserved 51% of the COVID-19 vaccine supply. While most adults in advanced economies will be vaccinated by mid-2022, middle-income countries might not reach this milestone until early 2023; some low-income countries might not get there until 2024.[2]

While immunity passports allow those who receive COVID-19 vaccination to return to normal life, critics of the policy ask what will happen to everyone else. They argue that the passport will create a two-tiered society, divided between the privileged vaccinated and underprivileged unvaccinated. In countries where vaccination distribution is delayed, the poor and under-served, who already face barriers to healthcare, will not have the chance to develop immunity and thus will not get passports. This could amplify preexisting disparities and block this population from essential public services, work, or housing. The pass will divide the population into Sheilas (haves with privileges), and Simons (have-nots, for whom these privileges are denied), rewarding the vaccinated and penalizing the unvaccinated.

The response to this concern is that obviously no one intends this two-tiered system to create racial disparities. The goal of the policy is to ensure public safety and it is probably necessary only until we reach herd immunity. One could also argue that we have a moral obligation to protect those who have taken precautions to avoid infection by getting vaccinated, by separating them from those who have not.

How does halakha view a policy that creates a polarized society — haves and have nots?  

Judaism rejects the concept of a uniform society in which everyone is the same and has the same. Tehilim 104:25 states, “How manifold are Your works, Eternal One! With wisdom You have made them all. The earth is full of Your creatures.” Sanhedrin 37a also celebrates the diversity of G-d’s creatures. It is this diversity that distinguishes G-d’s ability to create from man’s limited capacity to produce; when man stamps coins, each one is emblazoned with the same seal and they are all identical. However, G-d takes an original mold, that of Adam and Hava, and imprints each human being with unique features and qualities, so that no two individuals are alike. Diversity is a testimony to G-d’s greatness. Our mission is to foster diversity and not destroy it.

The Tower of Babel illustrates the danger of uniformity. Its builders had the misguided notion that the unity that would evolve from forced homogeneity could bring them peace and access to G-d. Bereshit 11:1 says that, “everyone had the same language and same speech.” Bereshit Rabba 38 offers three explanations of the builders’ sin, including the notion that, “What belongs to one belongs to the other, and what belongs to the other belongs to the first.” In the Tower of Babel, Sheila’s privileges belong to Simon and Simon’s privileges belong to Sheila. The natural reaction to the creation of an immunity pass is to argue, “It’s not fair that Sheila has more privileges than I do. We are both people and have the same intrinsic moral worth in society.”  However, this line of thinking violates the tenth commandment, “lo tachmod” — “do not covet.”  While envy or resentment of someone who has greater privileges is natural, the Torah proscribes these emotions. Rav Soloveitchik explains that the “generation tried to create a new social and world order. In order to realize this ideal they destroyed individual freedom, dictating to everyone what to do and how to live. Man became a slave in a rigid inflexible world.”  He compares their ideology to that of Marx and Lenin. Indeed, Rav Ezra Bick has suggested that the consequences of this uniformity are the expulsion of G-d, ideological dictatorship, and social repression. G-d responded by creating different languages which fostered cultural and ideological diversity and led to physical dispersion, ensuring that each people developed separately. Following this, Judaism allows for, and even embraces, differences between individuals.

It is one thing to say that Judaism fosters individuality, yet quite another to argue that Judaism endorses policies that encourage social inequality. Are we not obligated do everything we can to eliminate social inequality?  The immunity pass, which creates divisions and fosters social inequality, conflicts with Judaism’s championing of social justice. Devarim 15:7-11 discusses tzedakah, a mitzvah intended to correct social injustice. The Torah commands us, “If, however, there is a needy person among you, one of your kinsmen in any of your settlements in the land that the LORD your God is giving you, do not harden your heart and shut your hand against your needy kinsman. Rather, you must open your hand and lend him sufficient for whatever he needs.” Rambam Laws of Gifts to the Poor 11:1 states that of all the positive mitzvot, we must exercise the greatest caution in the observance of the mitzvah of tzedakah. Indeed, it would seem that we must make every effort to eliminate social inequality, and should not reinforce it by creating a class of individuals with special rights and privileges who may enter public areas and visit foreign countries, while others cannot.

However, there are limits to the mitzvah of tzedakah. Aruch Hashulchan Yore Deah 251:3 quotes the Tur, who rules that the obligation to give tzedakah only takes effect when one earns an income, and that the giver’s income takes precedence over that of the recipient, based on the principle that your life takes precedence over someone else’s. One may not give tzedakah to the point of bankruptcy. Rashi Devarim 15:5 on the words “lend him sufficiently what he needs” is even more explicit, explaining that one is not obligated to make the poor rich. Social justice does not require the employer to give all of his income to the poor in order to create absolute equality. Indeed, Ramban suggests that such social divisions are part of the fabric of our society. He points out an apparent contradiction between Devarim 15:11, which declares that there will always be poor in our land, and Devarim 15:4, which acknowledges that there will never be poor in our land if we follow the commandments. Ramban reconciles these two verses by stating that there will be no poor in the future world where everyone keeps mitzvot, but that in our current reality there will always be poor people. We live in an imperfect world where there are social divisions, despite our best efforts to the contrary. Halakha seems to recognize that differences exist between people. Some have greater incomes, which bring greater privilege, and some have lesser incomes. These disparities are beyond our control and not easily rectified.

One might argue that the immunity pass for the vaccinated creates man-made social divisions, which we should reject at all costs. Why impose greater disparities onto an already divided society?  On the other hand, eliminating the social division of differential incomes and poverty is hard to do, whereas in many places an individual could easily avoid this status getting the vaccination. In Israel, where the vaccine is available to all, immunity passports do not discriminate against the poor or socially marginalized. The issue is more complicated for countries where COVID-19 vaccine distribution has been slower or stalled; immunity passports can discriminate against the poorer countries that may not receive the vaccine for many years. However, as Aruch Hashulchan noted, halakha does not obligate a wealthy individual to give all of his income to the poor, nor must he wait to enjoy his money until the poor have more.  Extrapolating to the immunity passport, we learn that while those who are vaccinated must do all that they can to expedite vaccination of those who do not have access to the vaccine, halakha does not require them to wait to enjoy the privileges of vaccination until poorer countries receive it. Halakha does not obligate those who are vaccinated to enter bankruptcy by halting travel and business and waiting to return to normal until everyone in the world is vaccinated.

Some have compared the immunity passport to the symbols that the Nazis imposed as a way to divide people based on race, religion, or heritage, factors that are irrelevant to social participation. But the very premise that the immunity passport policy fosters social inequality is false. The passport is designed to promote public health and protect the most immunologically vulnerable. Virtually all modern poskim view COVID-19 vaccination as a mitzvah and perhaps even an obligation, fulfilling the commandment “lo ta’amod al dam re’echa.”[3]  The immunity passport merely rewards those who have fulfilled their obligation to society to minimize the risk of COVID-19 infection. Rabbi Gideon Rothstein explains that only those who fulfill their obligation to society may enjoy its full benefits. “Citizens are those members of a society who accept that way of looking at the world, of how society should work, of how citizens need to treat each other and outsiders, and of the proper ways to work for change and improvement within that society. Those who wish to fully join in the endeavor of furthering the prosperity of that society and worldview will become citizens; those who sympathize with essential aspects of the society but choose not to join it fully cannot then expect the full benefits of the system that they have chosen not to join. ”[4]  If Israel’s immunity policy succeeds, it will serve as a powerful model, showing how nations can return safely to some semblance of normalcy in a world ravaged by the pandemic.

Sheila and Simon can only enjoy the full benefits of society if they are full members of that society. Just as one cannot enjoy the privilege of driving a car without passing a driving test, completing an application for a driver’s license, and receiving the government-issued documents, individuals can only fully join the endeavor to further the prosperity of society, and indeed its safety and its future, by receiving a COVID-19 vaccination and obtaining an immunity pass.

[1] https://www.mako.co.il/news-lifestyle/2021_q1/Article-68e8d4dff2ca771026.htm.

[2] https://www.eiu.com/n/85-poor-countries-will-not-have-access-to-coronavirus-vaccines/.

[3] https://traditiononline.org/halakha-approaches-the-covid-19-vaccine/

[4] http://www.law.nyu.edu/sites/default/files/upload_documents/gffrothsteinpaper.pdf

About the Author
Sharon Galper Grossman, MD, MPh, is a Harvard-trained radiation oncologist with a masters in Public Health. She is a graduate of the Morot L’Halakha program for women’s advanced halakha learning at Matan Hasharon and teaches for Matan, Machon Puah and the Eden Center.
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