I started this commentary when the initial COVID spike involving the mass hospitalization of unvaccinated individuals occurred, and non-COVID patients requiring hospitalization were turned away because no beds, especially in intensive care, were available.

Some patients traveled hours to find vacant beds, and a few even died! I put the draft aside as COVID declined and hospital beds became available.

Then, Omicron joined Delta, and cases climbed once again. Hospital beds refilled with COVID patients, the majority of whom reported as high as 93 percent, were unvaccinated, and the exclusion of other patients was excluded reprised.

Presently, many people bloviate about individual rights to refuse vaccination, claiming justification in the Bill of Rights, yet lacking an understanding of the document and its originating milieu. A significant factor lost in their assertions is that they reside in society, and each right has a social responsibility or consequence. Their concept of rights fits well only if one lives in isolation.

The desire for rights without responsibilities as they espouse can be traced back to the citizens of Athens, circa 6th Century BCE, who, for their rights, were expected to vote and to serve a term as a government official. Many tried to shirk their responsibilities, were fined and compelled to fulfill their obligations.

What about those individuals who presently choose to remain unvaccinated? What consequence should they incur? I suggest two possibilities. The first is a monetary penalty. This can be a higher health insurance premium to partially offset the $100,000-plus average cost of a severe COVID infection.

A major airline has implemented this strategy, and it could be scaled based on income and family size. Alternatively, a non-inoculated but employed COVID positive individual could pay a portion of their hospital bill (i.e., $500 or $1,000) in advance of admission.

An employer may terminate an employee who refuses vaccination. Some employees may quit because of such a dictum, but given the present tumultuous job market, vaccination may be preferred.

An employer has a responsibility (ideally) to other employees as well as to the business. Allowing a non-vaccinated individual, a possible carrier, to continue working could infect many employees, causing a massive sick-out that can cripple business functioning, as is presently occurring.

One needs to ask if hospitals are fulfilling their community responsibility by filling beds with COVID patients to the exclusion of others?

Doing so assigns unvaccinated COVID patients a higher value for care than other society members. At best, these patients should receive equal, but ideally, lower valuation for admission, as non-vaccination is in many instances an individual choice for which denial of health care or certain treatments can be a just societal consequence.

My suggestions are oversimplified, and there are many qualifications for deferral, and we cannot always easily determine what is or is not defensible.

What about a 14-year-old whose parents refused permission for the injections?

What qualifies as a religious objection: One’s personal faith as the Supreme Court recently ruled, or the tenets of organized religion as the Founders intended? Is suspicion of medical care based on the Tuskegee Experiment, which ended 70 years ago, still valid? And the list of potential exemptions could continue ad-infinitum.

As I was taught decades ago, with a communicable epidemic in public health law, the health of the populace, the necessity of isolation and mandatory vaccination overrode individual choice.

Since the Constitution was written, there has been concern about federal overreach of state powers and individual rights. Still, this fear has yet to materialize, despite several instances of federal usurpation, and when problems are of national scope, they necessitate national action. COVID transcends the powers of individual states and demands federal control until it is managed.

I admit that the federal response to the plague has been (much) less than ideal, with both Trump and Biden, despite expert assistance, acting maladroitly.

Nonetheless, actions by governors, perhaps especially in the South, have exceeded this level.

A simpler alternative for preventing the exclusion of non-COVID patients would be to determine an average daily number of these patients receiving ICU treatment, including the equipment, materials and personnel (EMP) necessary for their care, with remaining EMP being available for COVID patients, vaccinated and unvaccinated, with preference given to the former.

Thus, when all EMP for COVID patients is exhausted, admission of COVID patients is halted until COVID patients expire. The EMP allocated to non-COVID patients cannot be reallocated to COVID care. A similar procedure would be used to allocate non-ICU beds. In this manner, resources would be equitably divided among all patients and any denial of care would be based solely on resource availability.

Not touched upon, but of equal importance to treating non-COVID patients, are a medical center’s ethical responsibilities to its staff during a pandemic? Is working nurses, physicians, and others past exhaustion, into possible mental illness and suicide justifiable, especially when many cases of COVID could have been prevented if a patient chose inoculation? If a RN is denied a “mental health day” and dies by suicide, can the denying agency be held responsible?

M. Bennet Broner is a medical ethicist.

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