Why Israel could force COVID vaccination, but won’t

The government has the right to restrict, incentivize or even sanction people who choose not to get vaccinated, according to legal experts. However, it is unlikely that Israel will.

“It is very bad to force people to vaccinate,” Prof. Yuval Feldman of Bar-Ilan University and the Israel Democracy Institute told The Jerusalem Post. He added that forcing people to do things usually doesn’t work. 

On Wednesday, Health Minister Yuli Edelstein said that by February 23, the government hopes to launch the country’s green passport program, which would enable only those who are vaccinated or who have recovered from coronavirus to enter certain non-essential establishments. This could include gyms, pools and even hotels.

Moreover, the health minister threatened that at least at first there would be no rapid or other testing option because “we will not be able to cause the labs to collapse because people who did not find time to get vaccinated want to be tested.”

Finally, he added that the government was examining legislation that would grant employers, such as educational institutions, the right not to allow people to enter who had not been vaccinated or tested for coronavirus within the last 48 hours. 

The statements caused a flood of protest on social networks and in the media as to how the government could “force people to vaccinate.” But according to Barak Medina, a law professor at the Hebrew University of Jerusalem, the government is within its right to restrict, incentivize or even sanction those who choose not to get the jab. 

According to Medina, assuming there is relevant epidemiological data, restrictions would be easy to implement.

“The government could say there is a ban on sitting in restaurants unless you are exempt from this ban because you do not impose a risk,” he said. That’s because the Big Coronavirus Law empowers the government to impose restrictions for the sake of public health. They have been doing this throughout the crisis. 

At the same time, he explained there is precedent for providing incentives to those who are willing to vaccinate, although legislation would be required because this type of norm could be considered an infringement of rights, such a freedom of religion if a person is not vaccinating for religious reasons. 

The Supreme Court ruled on this issue about six years ago and it ruled that it is permissible to provide incentives. 

In 2009, a law was enacted that said Israel would not provide child allowances to families that refused to vaccinate their children. The move was aimed at improving public health by forcing the hand of anti-vaxxers. 

There was a petition to the Supreme Court suggesting that the move was discriminatory because the vast majority of people who did not vaccinate were low-income ultra-Orthodox Jews and Arab Israelis – the same people who needed the monthly child allowance.

“The Supreme Court accepted that this policy infringes the right to freedom of religion but said that this is justified discrimination and dismissed the petition and so the law was upheld,” Medina said. 

Two years later, the law was abolished, “but we have the precedent saying that for important reasons, this kind of activity is permissible,” Medina added. 

Moreover, Israel already has a law that allows the state to impose on the public the duty to vaccinate. 

The law, known as the Public Health Ordinance, was enacted in 1940, during the time of the British Mandate, but is still enforceable. The law states that the head of the relevant ministry is empowered to impose a duty on all individuals to be vaccinated, and a person who refuses to do so would be subject to sanctions, including imprisonment.

“This law was imposed in the 1950s,” Medina said. But he added that, “I guess nowadays, this type of policy would be considered unconditional. It is too harsh an infringement of one’s liberty.”

Medina said that given the circumstances that the majority of the population is willing to take the vaccine and that there are alternatives like testing to ensure public health, “it is hard to imagine that this kind of legislation would be approved.”

In other words, he said, there is a law on the books but it won’t be implemented.  

“Using this power is subject to judicial review and the court would have to evaluate whether imposing this duty is reasonable and justified and I assume it will decide it is not,” Medina said. 

All 50 states and the District of Columbia have state laws that require children entering public childcare or schools to have certain vaccinations. 

“Everyone has the right not to get vaccinated,” Edelstein said, “but he cannot endanger the public.”

The health minister agreed that people could not be prevented from entering essential places. However, he told the radio on Thursday that he does “not understand why one should go toward people who are not vaccinated with things that are beyond basic needs.”

Bar-Ilan’s Feldman explained that this stance is justified, too. He said there is a “pyramid of rights.”

“Take things like leisure. If we allow 1,000 [unvaccinated] people to gather this is a huge public risk,” Feldman said. “But it is a risk we are willing to take if these are vaccinated people. If you are not vaccinated, you increase the risk for everyone.”

But Feldman said that Edelstein’s idea that there would not be reasonable and affordable alternatives, such as testing, would not be in proportion.

In addition, he stressed that before moving to legislation, other efforts, such as making it even easier for people to vaccinate by setting their appointments for them, should be tried. 

“They gave out cholent in Bnei Brak,” he quipped. “Maybe it will work.”

Just as throughout the coronavirus crisis, the government was meant to choose what was open and what was closed based on its level of risks, so, too, should it decide when someone needs to be vaccinated or not, the experts said.

“It is democratic and ethical” to restrict those who do not vaccinate,” Medina added. “People who decide not to vaccinate pose a burden on society. They have a right to choose to act this way, but it is unjust to impose this decision on all of society.”