70 Am. U. L. Rev. 1729 (2021).

* Associate Professor of Law and Dean’s Fellow, Indiana University Robert H. Mckinney School of Law; J.D., Northwestern University School of Law; M.P.H. in Chronic Disease Epidemiology, Yale University School of Public Health; B.A. (Natural Sciences, with a minor in Women’s Studies), Johns Hopkins University. I would like to thank William Alter for his research assistance, the participants of the University of Illinois College of Law Faculty Workshop, the University of Utah Law and Biosciences Workshop, and the St. John’s University School of Law New Scholars Roundtable for helpful suggestions, and to the editors of the American University Law Review for their editing of this Piece and for the invitation to present it at their Annual Symposium.

Abstract

All Americans sixteen and older are now eligible to receive a COVID-19 vaccination. However, many will not be able to access such vaccinations due to their work situation, health status, and inaccessible vaccination sites. Some have suggested that the use of vaccine passports, credentials used to gain access to places and countries by showing proof of vaccinations, may encourage people to get vaccinated. The COVID-19 pandemic has laid bare deep inequities in our society, and this Article argues that the use of vaccine passports would further exacerbate such chasms. Part I of this Article describes the differences between immunity passports and vaccine passports and the scientific uncertainty about their use, given the novel nature of this virus. Part II discusses whether the use of vaccine passports are legal in the United States. Part III discusses the ethical problems of immunity serving as a marker for the privilege to re-enter society, and the unwise focus on a technological fix for what is essentially a public health and equity disaster. While vaccine passports arguably may produce greater absolute economic benefits in the short term, a more equitable approach would be to address the social determinants of health and thereby spur far greater distributional economic benefits in the long term.