A few months ago, I started characterizing the anti-vaxxer fanatics as being members of the “anti-vaccine religion.” It wasn’t an important point to me, because as I constantly stress, the only thing that matters is scientific evidence – the vast bulk of which supports the safety and effectiveness of vaccines.
In fact, I know a lot of pro-vaccine people, many of whom are leaders in pointing out the flaws of the anti-vaccine religion, are themselves religious. I am an atheist, but I do not decide who are my friends on social media or real life, based on their religious beliefs. Since almost every major religion in the world supports vaccination, and in almost every case, strongly so, it’s clear that organized religion and vaccines are not in conflict.
For me, “anti-vaccine religion” was a throwaway line almost tongue-in-cheek, because, from my standpoint, the group acts as if it were a religious cult. In fact, some people I know, who loathe the anti-vaccine zealots, do classify them as a cult. Anyway, of all the things I represent, my obvious pejorative use of religion ranked near the bottom of my “care” list.
Yep. For example, his constant desire to label anti-vaxx as a religion, without any argument for why it constitutes a religion. He supposedly has a background in medicine. Yet he also thinks he's an expert in the anthropology/psychology of religion. Nope.
On March 6, 2018, the Department of Justice filed a lawsuit in a federal district court against Ozaukee County, Wisconsin. The Department was suing on behalf of Barnell Williams, a certified nursing assistant in Lasata Care Center, a nursing home, who was claiming emotional distress from being forced to get a flu vaccination for work when getting one contradicted her religious beliefs.
This is not the first lawsuit brought under Title VII of the Civil Rights Act of 1964 on the issue of the flu vaccination for healthcare workers, the claims are not new, and the lawsuit seems well founded. I was not going to write about it because there really is nothing new there, but following several news articles on the topic (here and here), people had questions about it, so this is a short post addressing legal issues surrounding flu vaccination.
This anomaly has got to be one of the most interesting stories in the vaccine world – the state’s vaccine uptake rates (see Note 1) for MMR (for measles, mumps and rubella), DTaP (for diphtheria, tetanus and whooping cough), and varicella (chickenpox) vaccines exceed 99.4%. This number far is far beyond the level necessary for the herd effect to protect all individuals in an area. All thanks to a lack of a Mississippi vaccine exemption for religious beliefs.
The high vaccine uptake rate breaks the irony meter for one other reason – Mississippi is one of the country’s most religious states. And the fact that the state does not allow religious exemptions for vaccination of young children seems like it is out of character for the state. Mississippi is one of only three states that disallow religious exemptions to vaccines (California and West Virginia being the other two). And the Mississippi vaccine exemption rules rely upon a simple piece of jurisprudence – parental duties trump parental rights.
As a result of this important concept, Mississippi vaccine exemption rules do not allow for a religious exemption. I know, it is difficult to wrap your mind around Mississippi in this story. But let’s find out why the state has led the way on stopping religious exemptions.
The father is a Roman Catholic and claimed that his church was opposed to vaccines. As far as I could find, the Catholic Church strongly supports vaccination, even making it a moral and ethical issue by clearly stating that “there would seem to be no proper grounds for refusing immunization against dangerous contagious diseases…”
The Catholic Church even advises for vaccinations in those vaccines manufactured using permanent cell lines that derive from aborted fetuses. In other words, not only is the Catholic Church not opposed to vaccination, it seems to indicate that it would immoral to not vaccinate.
This all leads me to wonder if there was research into the relationship between religion and vaccinations. And I found some.
On 27 June 2017, in a Florida vaccine laws case, a Florida Court of Appeals – The District Court of Appeal of the First District – rejected Patrick Flynn’s appeal against a lower court decision that found that a Catholic diocese had a constitutional right to exclude unvaccinated children if its interpretation of religious law supports doing so. The Court affirmed that the church autonomy doctrine, under which the state will not interfere in a church’s interpretation of religious law, prevents application of state vaccination law to this case.
From a public health perspective, this is a good news/bad news case. On one hand, the case made it clear there is no constitutional right to a religious exemption, and allowed religious private schools to reject non-vaccinated students when that rejection is religiously motivated. On the other hand, it also made it clear that other private schools cannot, under Florida law, reject unvaccinated students if their parents file a religious exemption, and neither can religious schools when their policy is based on secular reasons.
Florida vaccine laws – the case
Patrick Flynn is a Catholic father of eight. All his children were educated in Catholic schools in the Catholic Diocese of St. Augustine, Florida (“The Diocese”). At some point of his life he decided that vaccinating was against his religious beliefs, and began providing a letter expressing his religious objection to vaccine, to fulfill the requirements of Florida’s religious exemption.
Bishop Estevez’s legal position as Bishop is that immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism which can only properly be determined by the church and not by the civil courts.
The Diocese did not point to any specific tenet that supported its position on immunization – in fact, it did not provide any materials that explained its previous position that allowed exempt children in or its current position that refused them. It did state the basis of its opposition was religious.
Mr. Flynn’s youngest son has just finished Kindergarten in 2015. Mr. Flynn submitted a letter of religious exemption, but under the new policy was refused admission to the school unless his parents vaccinate him.
The basis for his appeal was the claim that under Florida’s statute about religious exemptions, that says:
“that immunization requirements do not apply if “[t]he parent of the child objects in writing that the administration of immunizing agents conflicts with his or her religious tenets or practices.” § 1003.22(5), Fla. Stat.” (opinion, p. 4)
Private schools have to accept religious exemptions, and cannot reject unimmunized children exempt under them.
Judge Makar wrote the main opinion. It basically said:
The church autonomy doctrine prevents civil courts from deciding matters that involve those courts in theological controversy, church discipline, ecclesiastical governance, or conformity with moral standards set by the church – on those issues, the courts will defer to the highest ecclestial authority. The doctrine is ground in Article I of the United States constitution – both the free exercise clause (it protects churches’ freedom of religion) and the establishment clause (by preventing excessive government entanglement with religion). It gives churches a constitutional right to autonomy.
In Florida, it’s a jurisdictional bar. That means that when a matter that involves one of the issues above – for example, here, stepping into a theological controversy – comes before a court, a court does not have jurisdiction over the issue and may not hear it.
There are limits on the application of the doctrine when it comes to clearly neutral laws that do not require deciding secular matter, but they do not apply here (said with caution by the main opinion, less carefully by the other opinions).
Neutral state laws requiring immunization are constitutionally valid even without a religious exemption. This means that the right to a religious exemption here is created by statute – Mr. Flynn does not have a constitutional right to a religious exemption from the school mandate.
Here, we have a religious debate on immunization. Mr. Flynn is asking the courts to prefer his religious exemption over the Diocese’s – directly to step into a religious disagreement. In the Court’s words:
“The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.”
Immunization is a basis for religious debates as well as secular ones, which is why most jurisdictions offer a religious exemptions. So this can fairly be seen as a religious debate between the parties, and courts should not step in. That is even more clearly the case here. This is a case where the church autonomy doctrine is in full force.
Mr. Flynn complains that the Diocese did not provide an explanation – but under the jurisprudence of Florida’s courts, private people do not have to explain their religious objections, just state that they have one, and it’s unfair for Mr. Flynn to demand more from the Diocese than a private person would have to give.
In the Court’s words:
Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject. … Mr. Flynn points out that he has no duty to prove that his objection is religious, citing Curry, yet he insists that the Diocese must provide adequate proof that sufficiently grounds its religious viewpoint in specific church tenets. We can’t help but note the incongruity of giving primacy to a parishioner’s religious viewpoint that is contrary to that of his mother-church on the same topic; respectfully, it would be an odd role reversal—a devotee’s tail wagging the corpus of church leadership—to do so.
Even more generally, “the Catholic Church’s governance of its parochial schools is inherently religious, its obvious mission being the transmission of its religious values,” so courts are careful not to interfere in such religious governance.
In short, the statutory right to send a child unvaccinated to any school the parent wants has to give way before the constitutional right of a church to autonomy.
Judge Bilbrey joined the opinion, making it the majority opinion, but added a concurrence – an opinion in agreement that makes additional point – of his own. He wanted to make it clear that the focus here isn’t that it was a dispute between a Catholic member of the Diocese and the Diocese itself. He explained:
All that is required for application of the doctrine is for a church or ecclesiastical body to take a position on religious grounds; it matters not that the opponent of the church have a religious basis in opposition. As Judge Makar observes, “the Catholic’s Church governance of its parochial schools is inherently religious, its obvious mission being the transmission of religious values. . . .” (Maj. Op. at 21). In my view, that is all that is needed in order to invoke the “church autonomy doctrine.””
Judge Kelsey agreed with the result, but offered a different reasoning. Since his reasoning is not the majority, I’ll just say shortly that he analyzed the theology and found that the church’s position was based in valid religious principles, and courts should not get caught in the religious debate between the Diocese and its believer, under the church autonomy doctrine.
Florida vaccine laws conclusion
This decision means that religious private schools in Florida that refuse to accept unimmunized children on religious grounds are constitutionally protected from having to accept religious exemptions. In that, it protects the right of these schools to require immunization (and protect their pupils – and the community – from outbreaks).
Note the limits, though. This applies only to religious schools; the court made it clear that the law requires private schools, generally, to accept religious exemptions. Private schools that are not religious cannot refuse unimmunized children if their parents file a religious exemption – and the parents don’t even have to explain their religious objections, making it very easy for parents whose opposition is not religious to use this exemption.
Religious schools, too, cannot refuse unvaccinated children unless their reasons are religious. A question arises whether that could incentivize such a school concerned about outbreaks to cloak a secular reason to refuse unvaccinated children in religious language – and whether incentivizing people and religious schools to present secular objections as religious is good public policy.
Nonetheless, upholding the fact that the constitution does not require a religious exemption from immunization requirements, and allowing Catholic schools to keep their schools safe by refusing unimmunized children, do help protect the public from disease.
As I addressed in the past, under Title VII of the Civil Rights Act of 1964 an employer is prohibited from discriminating against employees on the basis of religion. This prohibition requires employers to provide “reasonable accommodations” to employees who have religious reasons not to comply – unless doing so would impose an undue burden. I would like to examine that with respect to hospital employee vaccinations, and how that may relate to religious exemptions.
I have argued beforethat employers don’t actually have to provide a religious exemption and accommodate religious objections to vaccines. That’s because undue burden has been interpreted by the courts to require very little – if the burden on an employee is more than de minimis, more than very slight costs, an accommodation is not required. The burden here can be a dead or seriously ill vulnerable patient or patients. Arguably, that’s a serious burden. There is no good alternative to flu vaccines – masks, for example, have very limited effectiveness. While theoretically all refusing workers can be moved to non-patients positions, losing trained patient staff is not a trivial burden.
However, most hospitals do offer a religious exemption to hospital employee vaccinations. We are, after all, a country where most people value religions, and I assume most hospitals also believe that a handful of religious objectors will not undermine herd immunity enough to pose a risk – though that’s just my assumption.
In the past year, the Equal Employment Opportunities Commission (EEOC) brought three different cases, in three different regions (see one of the cases here), against hospitals that provided a religious exemption claiming that the way they implemented the exemption violated equal protection.
This post explains what the settlement means, and what hospitals should take away about religious exemptions to vaccines. The main points is that the settlement is not binding law. However, Saint Vincent was likely right to settle because the way it implemented its religious decree ran in direct opposition to rules governing religious exemptions in the school contact and religious accommodation rules. Finally, hospitals who wish to offer a religious accommodation should make sure that it conforms with the requirements that govern it; and hospitals may want to consider not offering one. Continue reading “Hospital employee vaccinations – employment discrimination and religion”
Americans are ignorant fools about evolution – there is simply nothing more frustrating than evolution deniers, sometimes called “creationists” that have infiltrated the discussion about evolution.
The body of work that constitutes evidence for evolution is literally mountainous, making up over a million peer-reviewed studies and books that explain what we have observed in current living organisms and the fossil record. In addition, over 99.9% of scientists in the natural sciences (geology, biology, physics, chemistry and many others) accept that evolution is a scientific fact (pdf, see page 8). If science worked as a democracy, it would be a landslide vote in favor of evolution.
The scientific theory of evolution is quite easy to understand – it is the change in inherited characteristics of a biological population over time and generations through the process of natural selection or genetic drift. Setting aside the creationist misinformation about what constitutes a scientific theory, evolution is a scientific fact, about as solid as the fact that the earth revolves around the sun.
There is no scientific debate about evolution, although there is continuing discussion about all of the possible mechanisms that drive evolution beyond natural selection and genetic drift. These discussions are based on the observations and evidence that evolution lead to the diversity of organisms we see today, arising from a common ancestor from about 3.8 billion years ago.
Despite the ongoing scientific research examining other mechanisms for evolution (which are all scientifically based, and none that include magical actions of mythical supernatural beings), the matter of evolution is settled. There are no scientific disputes about the fact that evolution has occurred over a period of 3.8 billion years until present time. None.
Other than literature published in self-serving creationist journals, it is impossible to find a peer-reviewed article that disputes the fact of evolution published in a real scientific journal over the past 25 years, if not past 50 years.
Despite the scientific facts, American politicians, almost exclusively conservative Republicans, continue to push legislation to force public school districts to teach creationism. Even though rarely successful, unfortunately, Louisiana and Tennessee have recently implemented antievolution legislation. These right wing politicians are convinced that evolution and creationism are equivalent, and they defer to a ridiculous political and cultural “debate” while ignoring the overwhelming scientific consensus.
Once again, many or most Americans are ignorant fools about evolution – thus, politicians, at least in some areas of the country, think they have the political cover to do whatever they want with regards to the teaching of creationism.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
On October 5, 2015 the Supreme Court of the United States denied cert in Phillips v. New York, a group of three cases that considered issues surrounding vaccines and religious exemptions. This post shortly explains the case and what denying cert means (and does not mean).
Both California and Illinois recently have enacted legislation tightening vaccine exemption requirements. California’s SB277 made vaccinations nearly mandatory (except for those children with legitimate medical exemptions), whereas Illinois’ SB1410 tightened up religious exemptions, although I am skeptical that it will really do anything.
So what do you think about vaccines and religious exemptions – what would you like to see?