The Value of Human Rights for Vaccine Prioritization at the National Level
Sharifah Sekalala
Now that several viable COVID-19 vaccines have been developed, the end of the pandemic may be in sight, at least for the 14% of the world’s population fortunate enough to live in countries that have pre-ordered vaccines. For the rest of the world’s population in low- or middle-income countries, there are still serious questions about access to the vaccines with the United Nations (UN) estimating that most people will not have been vaccinated by the end of 2021.[1] However, even in high-income countries which are currently vaccinating their populations, there are many questions about prioritization for the vaccine, and how embedded structural inequalities should be addressed. This question is important not only for the COVID-19 vaccine but also for prioritization of scarce health resources more generally.
Some experts have argued that we ought to prioritize racial and ethnic populations, as they have been disproportionately affected by the current crisis.[2] Others want to prioritise teachers, early childcare workers, and informal workers, all of whom are less able to physically distance. There are also arguments to prioritize unpaid carers who have largely been forgotten throughout the entire crisis.[3]
In this Viewpoint I argue that human rights have been largely left out of conversations about how to prioritise allocation within national vaccine programmes, but an intersectional human-rights approach is the fairest and most effective way to address COVID-19 vaccine prioritization.
Human rights and vaccine allocation
International human rights have been ratified and are legally binding on 171 states, making them much more compelling than ethical mechanisms of allocation and an intersectional approach to allocation builds on these human rights norms.
Early in the COVID-19 pandemic, the UN stipulated that a COVID-19 vaccine “should be provided without discrimination”, and acknowledged that “the human rights-based approach” is an “effective pathway in the prevention of major public health threats”.[4] The higher rates of severe COVID-19 illness and mortality among some systemically disadvantaged populations (for example, black and ethnic minority groups, migrants and refugees, indigenous peoples) provide a compelling case for determining how vulnerabilities are embedded in structural inequities that affect health. A human rights approach would therefore attempt to redress these systematic injustices including in the design and rollout of vaccine prioritization schemes.
Current allocation frameworks are inadequate for fully realizing the right to health, because they focus solely on attempting to capture clinical vulnerability to infection rather than on accounting for vulnerabilities due to underlying determinants of health.[5] For example, in the UK the first priorities are age, living in a care home, being a health or social care worker, or being clinically extremely vulnerable.[6] However, although all these groups are more vulnerable than average, the system is still a blunt instrument and wealthy elderly people who may be able to socially isolate are prioritized over much more vulnerable groups who are in close contact with people who may increase their chances of contracting COVID-19. This system does not address vulnerabilities due to underlying determinants of health. For example, many ethnic minority groups are unlikely to live as long as their white counterparts, they are more likely to be in informal or insecure jobs, live in overcrowded housing, and have a lower social economic status which may make it harder for them to socially distance thereby making them more susceptible than other categories.[7] This has been borne out by the data showing that people from these groups are more likely to become ill with COVID-19 and to die from it.[8] Thus, a fairer and more effective prioritization system would have to take into account not only vulnerability to infection but also more structural underlying determinants of health that increase their vulnerability to the crisis.
Similarly, in the United States the first phase of vaccine distribution focused on healthcare personnel and long-term care facility residents. Subsequent phases also included age and risk factors and non–healthcare frontline essential workers. Again, this fails to account for racial inequalities that are emerging from the way in which vaccines are currently being distributed.[9] For instance, data from New York illustrates that white people are twice as likely to have received the vaccine.
Vaccine prioritization is failing to address overlapping vulnerabilities.
Underlying determinants of health in the wake of COVID-19
Statements from the Committee on Economic, Social and Cultural Rights in the early stages of the pandemic that “States must make every effort to mobilize the necessary resources to combat COVID-19 in the most equitable manner, in order to avoid imposing a further economic burden on these marginalized groups” and that “Allocation of resources should prioritise the special needs of these groups” support a human rights compliant and intersectional approach to vaccine allocation.[10]
Intersectionality is a framework coined by the critical race theorist Kimberly Crenshaw that seeks to understand how multiple social identities, such as gender, sexual orientation, socioeconomic status, and disability, intersect at the micro level of individual experience to reflect interlocking systems of privilege and oppression.[11] Intersectionality has been used as a descriptive model of structural inequality, but many scholars now realise that it can be used to address inequalities. An intersectional approach to COVID-19 policies would help ensure that the prime beneficiaries are those with intersectional identities.[12]
These approaches are shaping the practice of UN human-rights bodies, with intersectionality becoming a “major theme within the wider topic of discrimination” which helps define and prioritise the most vulnerable and marginalized groups of people.[13] Although the term intersectionality is not always used explicitly, human rights law refers to multiple grounds of discrimination, which have more than an additive effect on individuals. In its work on prioritization for Universal Health Coverage, the World Health Organization (WHO) specifically recognizes that multiple characteristics based on social practices may help states to prioritise those most in need.[14] The recommendations and statements issued by international human rights bodies in the context of COVID-19 also acknowledge the intersectional effects of the pandemic among vulnerable groups, such as racial minorities, migrants, women, children, people with disabilities, older people, and frontline workers.[15]
An intersectional approach
A human rights intersectional approach to vaccine allocation would require national actors to take into consideration minority groups who simultaneously face different kinds of discrimination, using up-to-date and disaggregated civil registration, vital statistics, and health data.[16] By additionally including variables such as income, education, occupation, gender, race/ethnicity–which shape specific determinants of health status–vaccine prioritization frameworks could better conform to the human rights principle of non-discrimination and temper political agendas when decisions to prioritize vulnerable groups for a vaccine are perceived to be unpopular.
In a paper soon to be published in BMJ Global Health, my colleagues and I suggest prioritization according to three health-related criteria: increasing vulnerability to infection, (on the grounds of age and co-morbidities); social vulnerability that prioritises the worse off (on the grounds of race, ethnicity, housing, gender, occupation, etc); and financial and social risk protection (on the grounds of risks that individuals face due to social disadvantage such as lack of safety nets for caring obligations, catastrophic health expenditure if they have no health insurance, and a lack of entitlement to sick pay if they fall ill). We suggest prioritizing people or groups who meet multiple criteria.
Decisions would have to be made about the levels of disadvantage due to the intersectional harms that individuals face within different country settings, requiring greater representation and transparency about the decision-making processes. This would enable greater engagement with populations that have been structurally discriminated against by health systems and who may therefore be hesitant about taking the vaccine.
An intersectional human rights approach could be emancipatory as it seeks to improve the health outcomes in the short term while also officially recognising the underlying health inequalities that have contributed to structural discrimination.
Conclusion
There have been many calls to “build back better” after the pandemic, so as to create more equitable societies. An intersectional prioritization of vaccines, with greater recognition of structural determinants of health, contributes to this vision. Greater engagement with communities which have been disproportionately disadvantaged should lead to improved uptake of the vaccine, which will ultimately benefit everyone.
An intersectional human rights prioritization process would admittedly be more administratively complex and more expensive to run than a system that relies on single variables, and such a process might be slower. However, it provides the best mechanism for dealing with overlapping vulnerabilities of deprivation, and vulnerability to infection, as it takes account of the social determinants of health and the impact of structural inequalities. More importantly, an intersectional approach directly acknowledges the differential health impact on communities and attempts to redress them, giving credence to the call for a reimagined fairer and just society in the wake of this crisis
Sharifah Sekalala, School of Law, University of Warwick, Coventry, UK. Email: Sharifah.Sekalala@warwick.ac.uk
References
[1] UN News, WHO chief warns against ‘catastrophic moral failure’ in COVID-19 vaccine access, Available at: https://news.un.org/en/story/2021/01/1082362’, 18 January 2021.
[2] N. Parveen, A Mohdin, and N. McIntyre, “Call to prioritise minority ethnic groups for Covid vaccines” The Guardian, 18 January 2021, available at https://www.theguardian.com/world/2021/jan/18/call-to-prioritise-minority-ethnic-groups-for-covid-vaccines.
[3] BBC News, “Covid: Unpaid carers ‘should be prioritised for vaccine’”, 3 December 2020, Available at https://www.bbc.com/news/uk-wales-55162217.
[4] OHCHR. “No exceptions with COVID-19: “Everyone has the right to life-saving interventions” UN experts say, 26 March 2020. Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25746&LangID=E.
[5] European Centre for Disease Prevention and Control. Overview of COVID-19 vaccination strategies and vaccine deployment plans in the EU/EEA and the UK. 2 December 2020.
[6] UK Government. Joint Committee on Vaccination and Immunization: updated interim advice on priority groups for COVID-19 vaccination. 25 September 2020.
[9] https://www.nbcnewyork.com/news/coronavirus/white-new-yorkers-get-vaccine-at-double-rate-of-minorities-mirrors-national-trend-city-data-shows/2857763/
[10] United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights. Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural right: Statement by the Committee on Economic, Social and Cultural Rights. E/C.12/2020/1, 17 April 2020. Para 14.
[11] K. Crenshaw. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum 1989;138.; K. Davis, “Intersectionality as buzzword: a sociology of science perspective on what makes a feminist theory successful.” Feminist Theory 2008: 9(1): pp. 67-85.
[12] M. Campbell, S. Fredman, and A. Reeves, “Palliation or protection: How should the right to equality inform the government’s response to COVID-19?” International Journal of Discrimination and the Law 2020, Vol 20 (4), pp. 183-202.
[13] P. Y. S. Chow, “Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty Body Practice and the Issue of Ambivalence.” Human Rights Law Review 2016;16(3):453-481.
[14] WHO Making fair choices on the path to universal health coverage: Final report of the WHO Consultative Group on Equity and Universal Health Coverage. WHO, 2014, Available at https://www.who.int/choice/documents/making_fair_choices/en/.
[15] The Committee on the Protection of the Rights of All Migrant Workers and the UN Special Rapporteur on the Human Rights of Migrants. Joint Guidance Note on the Impacts of the COVID-19 Pandemic on the Human Rights of Migrants. 26 May 2020; CEDAW. Guidance Note on CEDAW and COVID-19. 22 April 2020; UN Committee on the Rights of Persons with Disabilities and the Special Envoy of the UN Secretary-General on Disability and Accessibility. Joint Statement: Persons with Disabilities and COVID-19 by the Chair of the United Nations Committee on the Rights of Persons with Disabilities. 1 April 2020; UN Committee on the Rights of the Child. The Committee on the Rights of the Child warns of the grave physical, emotional and psychological effect of the COVID-19 pandemic on children and calls on States to protect the rights of children. 8 April 2020, para 7; CESCR. Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights by the Committee on Economic, Social and Cultural Rights, E/C.12/2020/1, 6 April 2020, paras 5, 15.
[16] C. AbouZahr, D. de Savigny, L. Mikkelsen, et al. “Civil registration and vital statistics: progress in the data revolution for counting and accountability.” The Lancet 2015; 386 (10001), pp.1313-1314.