This article about vaccines mandates, religion, and the law was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a 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. She is also a member of the Vaccines Working Group on Ethics and Policy.
As vaccines mandates spread around the United States in response to the virus, there is naturally those who are unhappy. Committed anti-vaccine activists are, unsurprisingly, less happy than most, and driven to express their unhappiness in a variety of forums and a variety of ways including employing religion.
In one example, a relative newcomer on the anti-vaccine scene, student Cait Corrigan, has written a complaint to her former college, challenging their vaccines mandate, after she was removed from their Facebook group for offering to help people game exemptions based on religion.
By itself, this is not particularly important; the complaint is unlikely to go very far, and the college’s legal advisor would likely be able to point to the college’s authorities its many flaws (and the one point that the complaint is right about, and that the college should correct). But the complaint provides an opportunity to examine several arguments anti-vaccine activists make in other forums and address the way anti-vaccine activists build arguments.
Who is Ms. Cait Corrigan?
Caitlyn (Cait) Corrigan is a relative newcomer on the anti-vaccine scene. She is, apparently, a homeschooled student who has completed an undergraduate degree and then went on to a master’s degree in Earlham College’s religion program. The first I have heard of her was when I saw an ad in which she and her mom offered to teach others how to homeschool.
In spite of being shared by anti-vaccine activist Rita Palma and the anti-public-health spin of the ad, there is nothing wrong with teaching others to homeschool during the pandemic, and many parents may have ended up choosing that round for various reasons as a result of pandemic realities, even without being anti-vaccine or anti-public health.
But Cait Corrigan does much more. She organized student groups to oppose vaccine mandates, which, again, is not problematic by itself – but the anti-vaccine tint of her activism was clear when she spoke at anti-vaccine rallies, when the speaker roster at rallies she organized included prominent anti-vaccine activists, and when those rallies were sponsored by anti-vaccine organizations.
In her most recent post, she offers to teach participants “how to file a religious exemption” and how to “write a successful religious exemption with conviction. (Including scriptures, sections of example religious exemption letters).” She is certainly not the only anti-vaccine activist to make an income by helping game religious exemptions, but she is one of those who do that.
In late July, Ms. Corrigan responded to the decision of Earlham College, the College which gave her her first masters degree in religion, to establish COVID-19 vaccines mandates for its student body, complete with medical and religious exemptions (but not personal belief exemptions).
In the group “Friends of Earlham College”, Ms. Corrigan posted that “as an alum I felt compelled to write a post here to help those that are feeling marginalized, isolated and coerced. … If you do not want to get the C-19 vaccine and would like to file an exemption, you can reach out to me privately. I’m willing to help and offer support.” Ms. Corrigan did not suggest or imply that her offer was contingent on payment.
What happened next, according to Ms. Corrigan’s statements in a post she made on her timeline on July 23, 2021, is that she was criticized, and then Earlham college removed her from the Facebook group. Obviously upset at her removal, Ms. Corrigan asked her followers – most of which are unlikely to be members of Earlham College’s community – to write to the College’s president and complain, providing an email address.
The complaint about vaccines mandates
On July 29, 2021, Ms. Corrigan wrote a lengthy letter she described as an “ethic complaint” to the President and Board of Trustees of Earlham College, alleging she is speaking for others. The letter includes several common themes in anti-vaccine challenges to vaccines mandates.
The complaint opens by alleging that because the vaccines are not yet licensed by FDA but only under an emergency use authorization (EUA) they are experimental. This is a problematic claim going in – these authorized COVID-19 vaccines have been through clinical trials consisting of tens of thousands of people, and have since been given to over a hundred and fifty million people in the United States alone. Describing them as “experimental” stretches the meaning of the term beyond recognition.
This claim is then used to make a set of other legal claims, ranging from completely unfounded to not very strong. The complaint alleges that the college’s mandate “is in violation of The [sic] United States Department of Health and Human Services Title 45 CFR 46 – Protection of Human Subjects.” But that title protects human subjects during research done in humans. §46.101 titled “To what does this policy apply?” explains that “this policy applies to all research involving human subjects conducted, supported, or otherwise subject to regulation by any Federal department or agency…”
The College’s vaccines mandates are not research in human subjects. So the regulation doesn’t apply to it. It’s a college mandate that is part of the college’s attempt to prevent COVID-19 outbreaks.
A more plausible argument is that the EUA act, which instructs the Secretary of Health and Human Services to inform recipients of the option to accept or refuse a vaccine, prohibits mandates. This argument has been raised by scholars and litigants, and it is as of yet an unsettled legal question – though there are increasing indications that yes, courts will uphold mandates under an EUA, and there is a good argument that the EUA act does not speak to universities at all. So this argument is relevant, but not determinative.
The Nuremberg Code Gambit
It is weakened by the fact that it is immediately followed, in the complaint, with a pivot to extreme anti-vaccine arguments that are not valid or grounded in fact. On p. 2, Ms. Corrigan and her co-signers (more on that below) cite the Nuremberg Code and unnamed “federal and state laws based on it.” I suspect the federal and state laws referred to are not actually cited because while there are federal laws protecting subjects of experimental research, they don’t actually draw on the Nuremberg Code. And again, this reference is not really relevant to the context of a university mandate, which is not human experimentation or research. As pointed out by the talented Orac,
“…the Nuremberg Code only applies to human experimentation. Notice how each of the ten points of the Nuremberg Code mentions “the experiment” or “experimental” treatments. The Code is not about medical treatment, only medical experimentation involving human subjects.”
Also as pointed out by Orac, even for the purpose of research, the Nuremberg Code has been replaced by other documents, including the Belmont Report and the Declaration of Helsinki, which goes deeper into this. It is hard not to see this reference to the Nuremberg Code, as Orac pointed out, as trying to invoke a comparison to Nazism, to (offensively) compare the university’s efforts to increase safety on campus to abusive medical experiments under the Nazi regime.
It may also imply a threat to the university of trials like the Nuremberg trials. Note, by the way, that in both cases this implication makes it clear that Ms. Corrigan’s opposition to vaccines mandates is not religious, but heavily draws on anti-vaccine myths. Her next claims make that even clearer.
The VAERS Gambit
The complaint continues with a misrepresentation of VAERS reports, a common anti-vaccine tactic. To remind readers, VAERS reports do not show causation – or even that the event happened. But Ms. Corrigan not only lists numbers of VAERS reports with a clear implication that they are things caused by vaccines, but goes further.
Ms. Corrigan puts VAERS reported deaths at 11,405 (Note that the CDC has, up to August 2, 2021, 6,490 reports, which, it points out, is 0.0019% of COVID-19 vaccines recipients, and those deaths are not shown causally related to the vaccines.
I am not sure where Ms. Corrigan got the 11,405 number from). She then refers to a report often misused by anti-vaccine activists to claim these reports only reflect 1% of vaccine adverse events. It is a misuse and misrepresentation, because the report did not find – or suggest – substantial underreporting of severe events, and the 1% number referred to all reports – including mild events like sore arms or fevers.
Then the complaint makes the following extreme claim: “Assuming that the numbers reported in the VAERS systems [sic] may represent as little as 1% of actual deaths, … the actual number of deaths from the COVID-19 vaccine could be as high as 1,140,500.” (emphasis in the original).
In other words, the complaint combines assuming all deaths reported to VAERS (if her numbers are right) are caused by the vaccines and a misuse of a report that did not say or suggest only 1% of deaths are reported to claim that over one million people died from COVID-19 vaccines and nobody noticed. This claim is extreme, unfounded, and implausible. It can be fairly described as a point of anti-vaccine misinformation.
The complaint then “reminds” the college of section 21-40-5-6 of the Indiana Code, which allows for religious exemptions to vaccine mandates in educational institutions, and points out that in an institution bound by the constitution, the First Amendment would be violated by requiring a letter from the clergy to affirm a religious exemption. This is true, and the section cited does create an obligation for a religious exemption – but not for Earlham college.
§21-40-5-6 is part of a chapter that applies to “state educational institutions.” The only reference to private institutions there is in §21-40-5-12 which permits private institutions – if they want to – to comply. In other words, Earlham College is not bound by this provision and is not required to provide a religious exemption at all.
As a private institution, Earlham College does not owe constitutional rights to anyone. When the complaint said that Earlham College’s policy of requiring a letter from a religious leader “violates Indiana State Law [sic], US Supreme Court rulings, and the United States Constitution”, it is incorrect – with one caveat.
The one caveat is that insofar as the College is also requiring vaccines from its employees, the College is subject to Title VII of the Civil Rights Act of 1964, and under that provision, the College may have to accommodate employees with sincere religious objections to vaccines – and there, the College cannot limit accommodations to those with letters from organized religion. The complaint is right that for employees, and employees only, the college cannot condition religious exemptions on letters from clergy leaders. But then, Ms. Corrigan is not well placed to make that argument; it would need to come from an employee denied an exemption on those grounds.
The letter continues by referring to §21-40-5-4 of the Indiana Code, which governs medical exemptions from vaccines requirements – but again, this provision only applies to state educational institutions, and Earlham College is a private college, not governed by it. The complaint continued by threatening that College personnel may be “personally and legally” liable if any student suffers severe harm from the vaccine (repeating the already mentioned misinformation about VAERS), but provides no legal basis for this allegation, either, and it’s not quite clear why Ms. Corrigan thinks this.
The complaint then continues with another common theme in anti-vaccine opposition to vaccines mandates, and compares requiring students with exemptions to mask and test is segregation. It says “… requiring those with religious and medical exemptions to undergo testing, wear face masks, and to be segregated from the rest of the school population violates the rights to religious freedom, free assembly, the right to a fair and equal education, and the right to be free from discrimination in public accommodations and employment.”
This is wrong in several ways. Among other things, this paragraph tries to argue that a private college owes constitutional rights to students and employees. That’s just not how it works. Constitutional rights protect individuals against the government, not against other private actors – including their college. The complaint does mention that the College is a private one, but implies that it is violating state or federal law by not respecting these rights – and that is incorrect.
Further, treating unvaccinated individuals differently than vaccinated ones is not discrimination, and certainly not illegal discrimination. Discrimination is treating similarly situated individuals differently. Vaccinated individuals are not similarly situated to the unvaccinated – their risks of getting and transmitting COVID-19 are lower. It is reasonable and appropriate to impose additional safety requirements on the unvaccinated compared to the vaccinated, who are at lower risk. Further, being unvaccinated does not put one in a protected category.
There is no general right to a “fair and equal education” by a private college – it does not, for example, have to accept you, and unless the refusal hits on a protected category, that is perfectly legal.
The complaint lists a number of laws that prohibit discrimination – including, for example, by race and age – but none of them is actually relevant to the College’s vaccine mandate, except, insofar as it applies to employees, Title VII of the Civil Rights Act of 1964 – and that is only relevant, as explained above, to the implementation of the College’s religious exemption.
The complaint ends by trying to make an argument against testing arguing for “grave consequences” from testing and a number of other arguments against it. That, too, is not likely to go anywhere – testing requirements by colleges have been common long before vaccines were available, and stand on firm legal grounds.
The complaint concludes by threatening the college with lawsuits, since “you are in violation of The Civil Rights Act of 1964 and FDA regulation Title 45 CFR 46 – Protection of Human Subjects, as well as The Americans with Disabilities Act of 1990 or ADA (42 U.S.C §12101),” – although the complaint has not really made a good case for violation of any of these.
It says that:
…[c]onsidering the horrendous, discriminatory, and abusive treatment of your former student Caitlin Corrigan this past Spring, we recognize the continual lack of regard for people of various and diverse background. Earlham College is obviously not new to marginalizing and oppressing its employees and students. As leaders in protecting civil rights and liberties within the Indiana State Constitution and The United States Constitution, we have been continuously disturbed by the harassment of the members within your community that choose not to be vaccinated and/or participate in an experiment. We expect that this error will be corrected in a timely manner for the safety and security of the Earlham community.
I am not completely sure what this refers to. I suspect it refers to Ms. Corrigan’s demand for a religious exemption for the college’s previous vaccines requirements and pushback she received over that, but I do not actually know.
I do know that describing vaccines mandates – especially in the middle of a pandemic – as “lack of regard” for people of diverse background is problematic; vaccines mandates help keep the campus community safe. Looking at the signatures of the people who joined Ms. Corrigan in support of the complaint – none of which is affiliated with the college, as far as I can tell – makes the claim that they are “leaders in protecting civil rights” strange, at least for several of them.
At least five of the signatories – Mary Holland, Kevin Barry, Jim Mermigis, John Gilmore and Rita Palma – are active in the anti-vaccine movement, and fighting against protecting people from disease. That is not a fight for civil liberties. I am not really familiar with the other three.
The complaint against Earlham college includes several legal errors, unfounded (and misleading) factual claims, and extreme language. It certainly does not make a convincing case against the College’s vaccine mandate. It also strongly suggests that Ms. Corrigan’s opposition to vaccines is not religious; from the complaint, she draws her objections largely from claims common in anti-vaccine circle, (incorrect) claims about COVID-19 vaccines’ safety and effectiveness, and is firmly placed within the anti-vaccine sphere.
Maybe her current institution should consider this complaint – and her other efforts – in asserting the sincerity of any religious exemption she holds for vaccine mandates they set for their students.