The Court’s Religious Jurisprudence and Vaccines

 

The Court’s Religious Jurisprudence and Vaccines

In my last post, I pointed out that for over a century, for good reasons, courts have upheld school immunization mandates, including in the face of challenges based on the First Amendment’s free exercise clause. Two federal Court of Appeals cases in 2011and 2015reaffirmed this. The courts’ approach is based in part on powerful dictum in Prince v. Massachusetts, and in part on Employment Division v. Smith. All the courts upholding California’s new school vaccine legislation, SB277, echoed that view.

An important qualification is that states that do provide an exemption face constitutional limits that seemed designed to make the exemption hard to police and easy to abuse (though each by itself can be justified). States cannot require a clergy lettersupporting an exemption claim, because that discriminates in favor of organized religion. States cannot refuse an exemptionto a member of a religion that supports vaccines – for example, a Catholic or Jew – on the basis of that alone, if she claims a personal religious objection to vaccines. And when state law, itself, does not require evidence of sincerity, several courts have ruled that officials cannot add that requirement. State officials must accept any claim of religious objection at face value.

This makes a religious exemption very hard to monitor. Most of the users of this exemption are likely refusing vaccines for non-religious reasons. Having a religious exemption – when courts have consistently found it is not required – is likely a poor policy choice.  

One question is whether the recent Supreme Court jurisprudence will change the current judicial consensus that a religious exemption is not required in vaccine mandates. This is a narrow application of these decisions (and far from inclusive, because I want this post reasonably short); but this exercise can highlight some potential risks of the court’s recent religious jurisprudence even the supporting justices seem not to desire.  The current Supreme Court majority has been fairly cautious in its handling of the religious cases. But we are facing a potentially different composition of the court – and who knows? (For more detailed discussions of the religious jurisprudence on this blog, seehere,here,hereand here, for example. For a recent discussion of a paper on appointments on this blog, see here).

In Burwell v. Hobby Lobby, HHS actually raised a concern about negative effect on vaccines coverage by employers, and Justice Ginsburg’s dissent raised that as well. However, since the case focused on a Religious Freedom Restoration Act (RFRA) question and not a first amendment question, it did not directly address school immunization mandates. The majority referred to Smith as the standard for applying the First Amendment, and took pains to distinguish its discussion of RFRA from that context. However, the majority’s extremely narrow reading of what is an acceptable least restrictive means to address a religious issue can affect the way federal district cases and state courts influenced by the Supreme Court approach immunization mandates if they apply strict scrutiny. The majority may have seen this as unlikely, but it’s a possible outcome. That said, two courts in California addressing this after Hobby Lobby – a federal district court in Whitlowand the Second Appellate District’s  opinion inBrown– found that immunization mandates meet the least restrictive means test to achieve the compelling interest of disease prevention, each on a different basis. Whitlowfound that since the goal of the law in question was “total immunization”, any non-medical exemption would not achieve it, and the law was the least restrictive means to it. The Court of Appeal in Brown v. Smith, on the other hand, found that immunization mandates are the “Gold Standard” for preventing diseases.

 

Masterpiece Cakeshop v. Colorado Civil Right Commissionwas also carefully and narrowly decided, based on a finding that the Colorado Commission in question was hostile to the baker’s religious objections. It did not overturn Smith, and did not touch on immunization mandates. However, it could be used by opponents in the right circumstances to try and claim hostility to their religious claims. For example, in a case attacking Michigan’s requirement that people seeking exemptions have a discussion with the Department of Health’s personnel – with a plaintiff with religious objections to vaccines -  the Sixth Circuit’s rejectionof her claim was in part based on the lack of a constitutional right to an exemption. If plaintiff claimed special hostility to her religious objections, and it wasn’t unlikely she would, Masterpiece Cakeshopcould be used in support.

In short, so far, the Supreme Court’s jurisprudence on religion does not undermine the existing jurisprudence upholding school immunization mandates without a religious exemption. However, it creates potential arguments that plaintiffs can use to challenge the mandates in court. More than that, the growing religious jurisprudence – which should include the recent Becerracase overturning California’s law requiring pregnancy centers to provide information about abortion services – suggests a possible change in the Supreme Court’s general approach to religious arguments. This, in turn, could increase the protection of religious claims in many contexts, including school vaccination mandates, potentially putting the public health of communities at substantial risk.