In this sense, the regulations involve what the legal scholars Guido Calabresi and Philip Bobbitt, in their masterpiece “Tragic Choices,” describe as the problem of “losing twice”: First, because a scarce good has been allocated in such a way that you’re kept from the front of the line; second, because there’s nothing you can do within the law to alter the “demerit” that has caused you to be deemed not yet worthy.
When you lose twice, Calabresi and Bobbitt tell us, you’re less likely to accept the justness of the rules that have kept you from getting the scarce good, because you find yourself asking why exactly those ahead of you in line are more deserving. In the case of the widely varying regulations on who’s a priority, the question surely comes up a lot.
And there’s a second reason that the vaccine rollout rules are weak candidates for automatic obedience: the process through which they have been adopted. The proposition that the law is entitled to respect rests heavily on the notion that the rule embodied in law has been the subject of serious democratic debate. Thus in a typical case, would-be disobedients are challenging the settled judgment of their fellow citizens, or at least the judgment of the legislature their fellow citizens elected.
But the vaccine rollout isn’t a typical case. Most allocations have been by decree, without any sort of democratic debate, or even, in most cases, much public conversation. And although some ethicists defend the guidelines as the product of experts, in practice even the CDC’s own advisory committee seems hardly to have debated the priority list. Besides, even experts can be wrong. And when you’ve been living for a year under an emergency declaration that has significantly restricted your freedom, you’re not likely to welcome the discovery that your opinion on who should get priority is entitled to zero weight.
Don’t get me wrong. I’m not advocating for jumping the queue. I’m just suggesting that the ethical question involved can be more complicated than what’s been derided as “the I-deserve-it-more attitude”. Allocating a scarce resource is never easy, but as the Covid-19 vaccine becomes more widely available, let’s not mistake the passing of the crisis for a solution to the problem. If indeed we're entering an era of pandemics, we'll face the same choices again. Let's hope for some serious public debate about priorities before the next one strikes.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include The Emperor of Ocean Park, and his latest nonfiction book is Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.