Health officials and courts clash over vaccine pass warrants

The compulsory vaccine pass continues to stir controversy, with judicial and health authorities clashing over its need in some places and over possible rights violations.

Legal experts say the mandatory vaccine pass, among other disease control policies, raises constitutional points of contention beyond the realm of public health and science. Health officials say the pass is needed to contain the spread and allow the country to return to normal.

On Tuesday afternoon, a Seoul administrative court temporarily blocked the vaccine pass warrant at educational institutions such as secondary schools, saying the policy “seriously disadvantages people who are not vaccinated.”

The mandate of the Department of Health and Welfare, which went into effect about a month ago, requires people to show proof of being fully vaccinated less than six months ago or a PCR test result. negative issued within the last 48 hours to enter a wide range of public places.

The court, citing government statistics, said that “the risk of spreading COVID-19 could not be considered significantly higher in unvaccinated people in order to justify restricting their visits to these facilities.”

The court found that while vaccines are very effective in preventing hospitalizations and deaths, there was not enough evidence to justify the use of passes in educational institutions at the expense of constitutional rights.

Government: “The vaccine passes an instrument to return to normal”

Son Young-rae, spokesperson for the Department of Health and Welfare, told Wednesday’s press conference that the vaccine pass is “instrumental in continuing to make progress towards returning to normal.”

Amid a growing wave and strained medical systems, minimizing cases among the unvaccinated was “the top political priority,” he said.

He said the ministry’s analysis showed unvaccinated people were four to five times more likely to become seriously – even fatally – ill from COVID-19.

“Only 6 percent of adults aged 18 and over are unvaccinated in Korea. Yet they accounted for 30% of all cases found in people 12 and over in the past two months, and 53% of all ICU admissions and deaths, ”he said.

“This means that about half of our critical care resources are spent treating unvaccinated patients. “

He said the vaccine pass policy is “intended to reduce infections of unvaccinated people, which will therefore lead to fewer hospitalizations and deaths and ease the burden on hospitals.”

Responding to press inquiries as to how effective the passes have so far been in controlling the recent surge, Son said “could not be quantified.” “As the vaccine pass system was implemented, more intensive social distancing was re-established. It is difficult to weigh the impact of a policy separately, ”he said.

At the request of the Ministry of Health, the government will file an appeal “immediately,” Justice Minister Park Beom-kye told reporters on Wednesday morning. He added that he found the court’s reasoning regarding the risk posed by unvaccinated people “rather questionable”.

Health experts: “An understandable but worrying precedent”

Dr Jung Jae-hun, who is advising the prime minister on the response to COVID-19, hit back at the court’s ruling in a statement on Facebook, saying it “appears to lack medical and scientific understanding.”

He said the court was “patently wrong” to say that unvaccinated people “do not pose a significantly higher risk of spreading COVID-19.” Vaccines are always very protective against infections, especially in young people, he explained.

The spirit of a vaccine pass is to “reduce the risk of an infected person coming into contact with others in public places.” The presence of an infected person increases the risk of spread, ”he said, echoing assessments from the Department of Health.

The pass was also intended to “protect unvaccinated people” from possible exposure, as they are at a higher risk of serious illness, he said.

“At the end of the day, we have to respect what the court has decided. But the judiciary must also listen to the opinions of medical experts and public health authorities, as its decisions would greatly affect the direction of the response to COVID-19, ”he said.

“I understand where these concerns are coming from. Public health authorities must respond to them and be prepared to provide acceptable explanations. “

Dr Kim Woo-joo, an infectious disease specialist at Korea University Medical Center, said such restrictive measures should be adopted on the basis of a risk assessment, rather than indiscriminately applying them at all levels.

“Outdoor parks, book cafes where you don’t take off masks are not that dangerous and yet you still need passes to visit them,” he said. The government should be able to prove “to what extent the use of vaccines transmitted in these relatively low risk places can help to slow the spread,” he said.

Another infectious disease specialist, Dr Eom Joong-sik of Gachon University Medical Center, feared that with the suspension of vaccine passes, a dangerous precedent had been set for COVID-19 control measures country in the future.

“I see how problematic expanding the pass system to essential places like grocery stores could be,” he said.

“But what if people start making other restrictions needed to stem the spread, like social distancing and mask wearing, in court and the court decides to arrest them at important times? “

Legal experts: “Some things go beyond science”

Doctor-turned-lawyer Park Ho-kyun said the court’s challenge to vaccine pass warrants on Tuesday would be the first regarding possible rights violations in a series of disease control restrictions put in place. up over the past two years.

“Disease control measures are government decisions, but they work largely by mobilizing private resources such as office hours and individual participation,” he said. “To what extent can we accept them as a society is a question beyond the realm of science.”

He said not all policy decisions on the pandemic could be strictly based on science. “You could say that classrooms are a dangerous place for the virus to spread, for example. But we can’t keep kids away from face-to-face learning forever.

As for fears the court’s latest action could lead to future interference with the COVID-19 response, he said a court ruling on the pandemic restrictions “cannot be considered a final verdict “.

“As the situation of our epidemic evolves, the decisions of the court will also evolve. Closures could not be tolerated when cases are rare and hospitals have enough beds. But when hospital admissions skyrocket, stricter measures may be acceptable from a health rights perspective, ”he explained.

“Even if the court decides to end the warrant this time around, that wouldn’t mean this will be the last appeal on the matter during the remainder of the pandemic. It’s all relative, like how the science on COVID-19 is changing and constantly being updated. “

“People are free to challenge decisions made by government bodies,” he said. As court judgments pile up, this “would give us the opportunity to better guide ourselves on the response to the pandemic in a manner more mindful of these rights violation issues.”

Public defense attorney Shin Min-young said that justifying the restrictions that arose during the pandemic was a “tug of war – the rights of the individual against the public.” “But protecting rights and protecting public health are not mutually exclusive. Many fall into a gray area, which is why it is important to have them challenged in court, ”he said.

Shin added that it was important to have “certain channels through which expert groups can give the tribunal their opinion on cases with potentially significant impacts.”

Kim Jin-hyun, a former justice now practicing law, said a key point of contention would be whether to allow restriction of access to essential services like education in the name of responding to the pandemic. In stopping the pass, the court said that no group of people should be discriminated against “in all aspects of daily life” because of their status, whether cultural or medical.

While during the first month the passes were limited to high-risk places like bars, which are “arguably less essential”, its scope was broadened to include grocery stores, libraries and other places to go. every day, he said.

“It would be up to the court to decide which services would be considered essential,” he said.

By Kim Arin (arin@heraldcorp.com)

James C. Tibbs