(Bloomberg Opinion) -- Jumping the vaccine queue, once frowned upon, is suddenly in vogue. Not long ago, health care workers would get in trouble for calling around to see who wanted doses that would otherwise expire. Now the news media are openly worrying about the fate of those leftovers. Journalists and health advice blogs alike are praising websites like Dr. B, where those who want to get vaccinated ahead of schedule can sign up to be informed when a local facility has extra doses. Half a million people have joined.
Then there’s vaccine tourism, which was only recently considered a wicked flaunting of wealth. Now it’s just another curious foible of the wealthy — and, on dating sites, the new hotness.
What’s going on here?
Some of the shift is doubtless explained by a growing realization that Covid-19 vaccines, once seen as scarce, are soon likely to be plentiful — a view surely fueled by Biden administration’s promise that there will be enough doses for all Americans by May 1. Queue-jumping doesn’t seem so wrong if you expect the queue to be short.
But I want to suggest something else might also be involved in the attitude swing: a reevaluation of the rollout strategy itself. Different states, in some places even different counties, have adopted different priority lists. Although I’m all for federalism and diversity, it’s easy to see why the mishmash would lead to diminished confidence in the correctness of the rules governing the queue.
In a just society, the fact that an act is illegal provides a strong argument against doing the act. But the prohibition isn’t absolute, because the law itself can be unjust. The less just the law, the weaker the case against breaking it.
In the case of the vaccine rollout, the variety and arbitrariness of the rules has made rule-breaking more tempting. Consider, for example, last month’s report that Louisianans suffering from compromised immune systems were traveling to Mississippi for vaccinations because their home state had not yet declared them an eligible category. I trust that no one would argue, in the now-famous words of a Florida’s sheriff deputy, that this particular set of queue-jumpers has “stolen a vaccine from somebody that needs it more.”
Connecticut, where my wife and I live and work, is one of only two states (the other is Maine) that have decided to prioritize by age rather than level of risk. My state’s excuse — that working out which comorbidities should matter is too hard — doesn’t come close to passing the giggle test. Other states have managed, and for those officials who genuinely doubt their own capacities to sort, the Centers for Disease Control maintains a list. But enraged advocates for the disabled found their protests falling on deaf ears.
In this sense, the regulations involve what the legal scholars Guido Calabresi and Philip Bobbitt, in their masterpiece “Tragic Choices,” describe as the problem of “losing twice”: First, because a scarce good has been allocated in such a way that you’re kept from the front of the line; second, because there’s nothing you can do within the law to alter the “demerit” that has caused you to be deemed not yet worthy.
When you lose twice, Calabresi and Bobbitt tell us, you’re less likely to accept the justness of the rules that have kept you from getting the scarce good, because you find yourself asking why exactly those ahead of you in line are more deserving. In the case of the widely varying regulations on who’s a priority, the question surely comes up a lot.
And there’s a second reason that the vaccine rollout rules are weak candidates for automatic obedience: the process through which they have been adopted. The proposition that the law is entitled to respect rests heavily on the notion that the rule embodied in law has been the subject of serious democratic debate. Thus in a typical case, would-be disobedients are challenging the settled judgment of their fellow citizens, or at least the judgment of the legislature their fellow citizens elected.
But the vaccine rollout isn’t a typical case. Most allocations have been by decree, without any sort of democratic debate, or even, in most cases, much public conversation. And although some ethicists defend the guidelines as the product of experts, in practice even the CDC’s own advisory committee seems hardly to have debated the priority list. Besides, even experts can be wrong. And when you’ve been living for a year under an emergency declaration that has significantly restricted your freedom, you’re not likely to welcome the discovery that your opinion on who should get priority is entitled to zero weight.
Don’t get me wrong. I’m not advocating for jumping the queue. I’m just suggesting that the ethical question involved can be more complicated than what’s been derided as “the I-deserve-it-more attitude”. Allocating a scarce resource is never easy, but as the Covid-19 vaccine becomes more widely available, let’s not mistake the passing of the crisis for a solution to the problem. If indeed we're entering an era of pandemics, we'll face the same choices again. Let's hope for some serious public debate about priorities before the next one strikes.
Yes, I know that the deputy was arresting two queue-jumpers who dressed up to look older than they were. The question of whether disguising oneself as a member of an eligible category is worse than lying about the state of one’s residence we must leave for another day.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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