Could Religious Exemptions Trump a COVID-19 Vaccine Mandate? Well, That Depends

Yves here. While this post contains some useful observations about the ability of government to enforce a Covid-19 vaccine requirement, it also skips over some basic issues. One is that the currents state quarantine requirements look to be on shaky ground. States are not allowed to interfere with interstate commerce; that authority lies solely with the Federal government. But no one with sufficient legal firepower has challenged the state quarantines, perhaps because they have proven to be so toothless. So the Feds could impose a “You need to be vaccinated to get on a plane” rule, but not states (and that’s before getting to “Dream if you could enforce it without DHS/TSA participation”).

By Ross D. Silverman, Professor of Public Health and Law, Indiana University. Originally published at The Conversation

The longer COVID-19 rages on, the more the United States appears to be hanging its hopes on the development and rapid, mass distribution of a vaccine.

Getting a safe and effective vaccine out to the public could be a game changer, health experts believe. But stopping the virus’s spread will only happen if enough people choose – or are required – to get vaccinated.

But while some people may see it as their “patriotic duty” to get vaccinated, others won’t.

Opponents may challenge vaccination requirements based on claims of religious liberty or under specific laws that would allow for a religious exemption from any COVID-19 vaccine mandates. In some states including Indiana and Massachusetts, there are laws allowing parents to cite religious reasons to opt out of childhood immunization requirements.

As a public health lawyer and ethicist who has researched issues related to vaccination policy, I’m often asked about the role a vaccine mandate could play in our COVID-19 response. My answer is a common lawyer’s response: “It depends,” as this question raises numerous questions of its own.

‘Safe and Effective’?

Whether or not a vaccine mandate is appropriate will depend upon how safe the vaccine is determined to be, what it protects against and how well it offers protection. The Food and Drug Administration Commissioner Stephen Hahn has been adamant that the agency “will not cut corners” in their vaccine review process, and that the decision “will be based on science and data.” Any suggestion otherwise would damage public trust.

But public hesitancy to vaccines was already one of the biggest global public health concerns even before the COVID-19 pandemic.

Added to this are the vaccine misinformation and conspiracies that have flourished during the epidemic.

These may explain why 35% of Americans say they will not get the vaccine. While troubling, it’s unclear how many in this camp will keep that opinion if COVID-related illnesses, injuries and disruptions to our lives continue, and a vaccine becomes readily available.

And we do not know enough about COVID-19 immunity yet to know what share of the population would need to be vaccinated for a community to achieve herd immunity and stop the virus’s spread. A mandate may not be necessary, although those refusing vaccination tend to cluster, leaving potential pockets of continued vulnerability.

‘If/Then’ Mandates

Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has said he would be “pretty surprised” if vaccination became mandatory for any part of the population.

But other experts have raised the possibility of a vaccine being mandatory as part of a “if/then” proposition– in other words, someone can only do something if they are first vaccinated. For example, proof of vaccination could be required to engage in certain jobs, such as prison staff or line workers in meat processing plants. Some businesses, such as nursing homes and hospitals might require vaccination for those who work with certain high-risk populations.

It also could be required to gain access to certain spaces, such as schools or sporting events, or to qualify for certain benefits, like freedom to travel to other states without having to quarantine. These types of rules already exist, for example, in many universities, which require students living in dorms be vaccinated against meningitis.

Another approach would be to mandate the vaccine for certain populations based upon risk characteristics, such as those who live in nursing homes.

Under these scenarios, would religious or personal exemptions override any mandate? That depends on who issues the mandate.

Recent guidance from the U.S. Equal Employment Opportunity Commissionsuggests that a request to be exempted from an employer’s flu vaccination mandate based on “sincerely held religious belief, practice, or observances” would be protected under Title VII of the 1964 Civil Rights Act. The guidance doesn’t explicitly state that the same rule would apply for COVID-19 – because there is no COVID-19 vaccine at this time – but it seems clear that the commission would prefer that “employers consider simply encouraging employees” to get vaccinated.

That said, there is a provision under the law that would allow businesses not to honor this exemption if it created “undue hardship.” In care facilities, where employees interact regularly with vulnerable populations, employers likely will be able to make “undue hardship” arguments and prevent exemptions. But people working in a typical office environment, or in a service industry position, would probably be able to make a religion-based claim to opt out.

It gets a little more complicated when it comes to any state-issued vaccine mandate. A number of states have created laws protecting religious rights beyond the First Amendment. Florida and Texas, for example, allow parents to opt their children out of school vaccinations citing deeply held religious beliefs or philosophical opposition.

Twenty-one states have religious freedom laws prohibiting even minimal interference with residents’ right to practice their faith. In states with these laws, legislatures may need to amend the statute to avoid challenges and allow for universal vaccination mandates for adults.

These exemptions for religious beliefs are political choices. There are no Constitutional or ethical obligations to require an opt out to a vaccine that may be key to stopping a pandemic, should a state wish to prioritize protecting their residents from COVID-19 through mandating vaccination.

Even during this pandemic, most courts, including the Supreme Court, have been hesitant to interfere with the decisions made by state officials taking steps to keep the community safe from a dangerous outbreak. As Chief Justice Roberts recently described, these are emergency circumstances “fraught with medical and scientific uncertainties,” and moment-to-moment management of such situations are best left to the elected officials who are directly accountable to the public.

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  1. The Rev Kev

    Actually this could get worse. It depends if the Oxford vaccine being developed is exported to the US to be used there. The reason is that cells were used that were developed from a female aborted fetus back in 1973 and I quote-

    ‘The cell line in question, HEK293, was developed in the 1970s and is commonly used for the development of vaccines and for medical research. HEK293 was derived from human embryonic kidney cells and is now the second-most frequently used cell line in biology and biotechnology.’

    The Catholic archbishop of Sydney, Anglican archbishop of Sydney and the Greek Orthodox archbishop of Australia all raised objections to the vaccine because of this but if this vaccine went to America, can you imagine what some church leaders would say about this? They would go ballistic-

    1. p. fitzsimon

      To my understanding this has never been an issue with the United States Catholic bishops. The WI-38 human cell line was developed at the Wistar Institute in Philadelphia in the 1960s by Leonard Hayflick. It has been used in vaccine development all over the world since. Interestingly, some of the first vaccine tests used children at a Catholic orphanage in Philadelphia. At that time using orphans for testing was common practice since you didn’t need permission from every parent.

    2. Maritimer

      Interesting that this is now called the Oxford Vaccine. Is this the same vaccine being developed with the criminal organization AstraZeneca? I assume so. Rebranding lives on. Buy some reputation by coopting a famous university; let them run cover for you.

      See AstraZeneca’s criminal record at this link:
      I give one excerpt regarding their criminal activity at the end of this post. And, please, keep in mind they possibly killed people or harmed them. (“Do no harm.” apparently does not apply to AstraZeneca.)

      In any case, personally, if it was mandated that I must be injected with a vaccine involving AstraZeneca or any of the other Big Pharma criminal organizations, I would object on religious, ethical and philosophical grounds. A citizen should not be forced to trade with a criminal organization nor pay them money.

      I certainly hope that some religious leaders will take note.

      And, at the same time, I realize that in our now criminogenic society, the Injustice System may very well rule for forced vaccination. No outrage seems out of corrupt reach.

      Part of AstraZeneca Rap Sheet:
      “In 2003 federal officials announced that AstraZeneca had pleaded guilty to criminal and civil charges relating to the illegal marketing of the prostate cancer drug Zoladex. The company agreed to pay $355 million, consisting of $64 million in criminal fines, a $266 million settlement of civil False Claims Act charges, and a $25 million settlement of fraud charges relating to state Medicaid programs. AstraZeneca, which agreed to enter into a corporate integrity agreement with the Inspector General of the U.S. Department of Health and Human Services, had been accused of giving illegal financial inducements such as grants and honoraria to physicians.”

  2. Generalfeldmarschall von Hindenburg

    Mandatory vaccinations? That’s when I reach for my Automatic. Sorry. I draw the line there. This whole thing has been turned into a social engineering exercise and as vivid an illustration of Naomi Klein’s thesis as it’s possible to present.

    1. Keith

      It seems the “My body, my choice” mantra only applies when certain segments of the population agree. This whole COVID scenario has been so hyped up that a skeptical eye needs to be cast at any of the new policies/programs arising from it.

    2. TimH

      I suspect you mean semi-automatic, although if you do have an FFL it would be interesting to hear what you have!

  3. TimH

    As somebody who gets the flu shot every year, no way I am accepting a vaccine until at least 6 months after the first administrations. These are being rushed through, and the bar that I read was along the lines of “has measurable effect on at least 35% recipients”.

    I remember Thalidomide.

    Lastly, I sadly expect mandatory vaccinations for prisoners and state run old folks homes, and they will be the guinea pigs.

    1. jr

      Yes, that’s exactly what I was thinking, avoid vaccination and stay quarantined to the best of my ability until some kind of feedback about possible side effects comes in. I worry that my sister, a teacher, will also be a guinea pig for some slapped together vaccine mandate.

      I’m no anti-vaccer but it’s not hard to understand why someone would question the vaccine given the bungling leadership. On both sides. Add to that the general and understandable distrust of almost every institution involved, from government to the scientists to industry, well, why would you rush to get the vaccine?

      I expect the PMC’s around me to line right up for it. They are the one’s who take every new app or bicycle laundry delivery or pre-prepped dinner box service as soon as it launches. I’m going to lie about it and avoid people.

    2. Janie

      Exactly. No one I know is volunteering to be part of the beta test. That’s not saying never, just waiting for its safety and efficacy to be verified by a trusted source.

    3. Chris

      Actually, based on what my friends and colleagues in biodefense tell me about making vaccines, that won’t happen until the main adult population is challenged with the vaccine. Healthy adults between 18 and 64 get tested first once the vaccine can be distributed. Then the other populations with increasing risk profiles.

    4. Jen

      The pledge our returning undergrads had to sign included committing to get the vaccine when it becomes available.

      So far, the administration has not made that requirement of employees.

      I’m also not an anti-vaccer by any means, but I am not interested until it’s clear any offered vaccine does no harm and actually helps.

    5. Anthony G Stegman

      More recently is a failed vaccine for dengue fever that was administered to school kids in the Philippines. It was a disaster and eventually pulled.

  4. diptherio

    The Food and Drug Administration Commissioner Stephen Hahn has been adamant that the agency “will not cut corners” in their vaccine review process,

    This is the same Stephen Hahn right?

    FDA Chief Admits That Presenting Plasma As Trump’s Latest Miracle Was A Huge Mistake

    FDA Commissioner Stephen Hahn was standing with Donald Trump at a Sunday night press conference to support claims that plasma was a “breakthrough” treatment for COVID-19, and that its use could save over a third of all patients. It was an amazing thing to say, not just because it was counter to the recommendations of the experts, but because there seemed to be nothing in the study that actually supported the numbers that Hahn was claiming.

    Yeah, seems totes trustworthy. I’ll for sure be taking his word for it when he tells us that a vaccine coming out in record time is completely safe and has been properly tested.

    1. Anthony G Stegman

      Stephen Hahn will quickly wilt under Trump heat. Trump is absolutely the worst conceivable president to lead a national response to a pandemic. His ignorance and self absorption is off the charts.

  5. Bill Smith

    I don’t see this as a big deal at this point. Given the supply of vaccine versus the number of people who need to be vaccinated it will be a while before they run out of willing people to take it.

    Me? I’ll be happy to be the 10,000,001 person.

  6. Kevin C. Smith

    A very large number of people will be vaccinated early on [think military, healthcare workers, and people who just really want to be vaccinated early.]

    So, there will be plenty of evidence within a few months regarding efficacy and safety.

    Speaking as a physician, I expect to be vaccinated very early, and am looking forward to that. Hope I can snag a dose for my wife also.

  7. Anonymous

    How about a deal:

    Free healthcare for life for those who take the vaccine?

    After all, shouldn’t patriotism cut both ways?

    Just a thought but it seems the poor have some leverage here …

  8. Steve Ruis

    Religious beliefs? They make these things up. Those religions based upon “scripture” would be hard pressed to find any mention of vaccination. But there are many dictates in scriptures to obey rightful authorities.

    I would love to see such a court case. Will a court swallow statements like “We believe …” without documentation, expert opinion, etc.

  9. Joseph

    Really, there is nothing to fear regarding Covid-19 that HCQ/zinc can’t prevent or resolve. This link to Palmer Foundation shows approximately 370 interesting articles and studies from 5/8/20 through 8/30/20 that demonstrate the safety and efficacy of hydroxychloroquine with zinc, see:

    The study on 8/16/20 shows the death rate of countries that used HCQ vs the countries that didn’t. Countries that used HCQ had a 79% lower fatality rate.

    1. Yves Smith Post author

      That is straw manning our opening comment. We didn’t take a stand on HCQ in this post. Generally, we have been critical of slipshod studies (which focus on use for people who have already contracted Covid-19, as opposed to a prophylactic). The point is the FDA’s flip flop.

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