Our Legal System Is Poorly Suited For Discrimination Based On Antigens

jonathanturley |  Below is a longer version of my column that ran in the Los Angeles Times on the danger of using antibody testing as a basis for discrimination.  The concept of a pandemic passport of course will only be plausible if such antibodies truly yield a form of immunity.  The WHO has declared that there is no evidence to support that claim.  Yet, plasma treatments are reportedly successful.

Here is the column:

With the coronavirus antibody tests being rolled out, the country is about to be flooded with millions of tests to determine if individuals have already been exposed to the virus and presumably have immunity from it. The development is key for researchers to understand both the scope and spread of the virus as well as how close we may be to a type of “herd immunity.” That public health breakthrough however could trigger some difficult legal questions. First and foremost, what if you are not part of the herd? The country may soon have to deal with a new concept of bias: antibody or immuno discrimination.

There is a growing and urgent need to get this economy rolling as the virus outbreak subsides. President Donald Trump is correct that destroying this economy will ruin the lives and dreams (and yes health) of tens of millions of citizens. It could reduce the horizon for an entire generation saddled with crippling debt and reduced markets.

Recovery will occur only to the degree that people feel comfortable about getting on airplanes, trains, buses, restaurants, and other closed spaces. With a vaccine projected as still a year away, the population could soon be divided into the immunized and the potentially contagious. If you are in the later group, the question is whether you can be denied certain services.

It is not as far-fetched as you might think. Take the airlines. Planes need to be near capacity to be profitable as a general rule. Social distancing on an airplane is not economically viable. One solution is to require proof of antibodies in your system with one of these available tests. Indeed, the airlines this week floated the idea of a required blood test. That conversely would create barriers to those who are immuno signatures.

Various countries are already using tracking technology to identify carriers and the same technology can be used to distinguish those who are immune. In Moscow, the government has issued “digital permits” to travel that bars others from public transport and even car traffic.