The COVID-19 pandemic threw into sharp relief persistent societal inequalities and added novel dimensions to these problems. Certain groups proved particularly vulnerable, both in terms of infection risk and severity as well as in terms of the accompanying social fallout.
Though states could pursue many avenues to address COVID-induced health inequalities, national vaccination programmes served as one of the most far-reaching and widely-adopted population health interventions available. The implementation of vaccination programmes may seem like a great leveller that can address the disparate risks linked to social determinants of health. However, implementing vaccination programmes in an equitable manner is itself essential for the realisation of such a vision.
Against this background the project investigated whether and to what extent the implementation of COVID-19 vaccination campaigns met the ideal of health equity. The starting hypothesis of the investigation assumed that the answer to this research question would necessarily depend on the legal frameworks in which COVID-19 vaccination campaigns were embedded.
For this purpose, the project undertook a legal comparative analysis of three jurisdictions: England, Italy, and the USA. The choice of comparator countries took into consideration the need to select states that embrace vaccination as a population health strategy, but have pursued different strategies to institutionalise equity considerations.
In this regard, England primarily adopted a procedural approach. Hereby, legal norms direct the attention of decisionmakers to relevant equity considerations, yet grant them the discretion to determine the outcome of these deliberations. This is paired with a relatively limited system of substantive rights. Italy embraces a comprehensive substantive approach whereby the principle of equity goes hand in hand with that of social solidarity. Under the Constitution all citizens are considered formally equal before the law and the state must give those who are disadvantaged the means to participate equally in social and political life. In contrast, the USA features an inherently ‘political’ approach; the fifty federal states individually confront a socio-political ideal of equity without guidance from codified mandates.
Two specific dimensions of the COVID-19 vaccination process were selected as case studies for the comparison, since each presented opportunities for incorporating equity considerations into their design and implementation. First, vaccine prioritisation schemes were examined as a tool for reconciling vaccine scarcity with equity considerations – accounting for the latter in their allocation strategies. Prioritisation programmes could identify the greater need of some groups for the vaccine, as well as the need to overcome pre-existing patterns of disadvantage. Second, the project investigated vaccine injury compensation schemes and their connection with the ideal of health equity. By meeting the needs of the injured and reinforcing public trust in vaccines, no-fault compensation schemes aim at redistributing resources to the subset of the population suffering from vaccine injury-induced disability.
The investigation of the legal-constitutional framework of the three jurisdictions, combined with the assessment of the two selected aspects of COVID-19 vaccination campaigns, shows that the different approaches to vaccine prioritisation and compensation mirror the equity considerations enshrined in each of the country's legal systems. At the same time, several commonalities were detected in the approaches to vaccine prioritisation: age, correlated comorbidities, disabilities and healthcare occupation were consistently prioritised in all jurisdictions.
However, there has been a great discrepancy in how the potential needs of other socially disadvantaged population groups have been taken into consideration within and across the three countries. The legal frameworks structuring these categories exerted a tangible, albeit varied and limited, influence across all nations.
In both the USA and in Italy, substantive requirements of constitutional law played a fundamental role in guiding prioritisation decisions. Nonetheless, the pursuit of an equitable response to allocation needs was finally left to political actors. In England it was not substantive rights, but legal requirements for a process-driven incorporation of equity considerations that influenced vaccine prioritisation, with decision-makers conducting relevant assessments.
The analysis of no-fault compensation programmes also revealed commonalities across the three jurisdictions, in the sense that already existing schemes had to be extended to the vaccines for the novel virus. In the USA, the coronavirus fell under a bespoke legislative scheme designed for emergencies, providing coverage for potential injuries. The Italian scheme was informed by a substantive right of solidarity and the jurisprudence of the Italian Constitutional Court. Lacking a pre-existing means of extending it to COVID-19, the English scheme required (and was subject to) prompt executive action to pre-empt doubts regarding coverage: the government explicitly added the virus to the list of specified diseases.
Ultimately, it was the Italian scheme that was best suited to meet the needs of the injured and to encourage vaccine uptake. This is mainly due to the limited nature of the substantive entitlements granted in the UK and to the procedural hurdles imposed under the US scheme. The fact that the Anglo-Saxon schemes are political creations permitted a neglect of equity considerations. By contrast, Italy’s scheme, flowing directly from a constitutional obligation of solidarity which applies equally to all vaccine-damaged individuals, ensures that a broader and more coherent approach to compensation is in place.
The results of the project were published open access in an article that appeared in the Medical Law Review (Special Issue: Health Inequalities) in December 2022.
