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Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Hopefully, the left will not try to make this vaccine mandatory. Right now, it is contradicting all of its previous rhetoric on Big Pharma.

Before this, Big Pharma was a collection of super greedy, purely profit driven companies that had caused a lot of grief by putting unsafe drugs on the market in the pursuit of profit.

Now, suddenly, the left is saying this rushed vaccine is totally safe and everyone has to take it.

Posted by: thegreatdisappointment | Nov 24, 2020 12:03:47 PM

My very strong suspicion is that courts would say it doesn't substantially burden your religious practice (such a burden's a threshold element of a RFRA claim) to not receive the $1,000, partly because it wasn't a preexisting entitlement. Whether that's coherent or not, I don't know. It's a kind of Rick Hills baseline hell move.

Posted by: Asher Steinberg | Nov 24, 2020 10:46:00 AM

Paying for vaccine uptake is customarily done for experimental vaccines. If you did it for an "approved" vaccine, you are sending the wrong message, meaning the
meaning the authorities have reservations about safety/efficacy. Further, if this is a societal imperative, then either it should be mandated (see e.g. Jacobson v. Mass) or by local Health dept order, which requires vaccination or staying home (a la the NYC measles order in the last epidemic). If it is such an imperative, why would you pay for people doing their civic duty? Should we pay people to vote? To take measles vaccines? Where do you draw the line. And if we aren't really sure of the safety, then we should say so.

Posted by: Barbara Pfeffer Billauer | Nov 24, 2020 6:14:42 AM

I have difficulty with the RFRA claim because that would seem to imply that the government paying soldiers is subject to a similar objection. In both cases the government is not just offering money as a benefit. It is offering payment for a service that the recipient might not otherwise wish to perform and which some people have a religious objection to (military service, getting injected with a foreign substance).

Posted by: TJ | Nov 23, 2020 6:55:18 PM

I'm not sure branding the vaccine as "so risky we're going to pay you $1,400 to take it b/c you may need that for medical bills" is the way to get wider vaccination coverage.

The bad thing is, you really can't call people who are hesitant to take the vaccine selfish, stupid, or any of the left's other favorite monikers.

The simple fact is the vaccine has been super rushed and we have no idea what the long-term effects of it will be.

Posted by: thegreatdisappointment | Nov 23, 2020 6:20:31 PM

And by the way, Dorit Reiss (contributor to that Blog, expert for vaccines) opines there in that article or link I have left.

Posted by: El roam | Nov 23, 2020 4:13:32 PM

Here for example, titled:

"Will the COVID-19 vaccine be mandatory? What the law says
Can the government or your employer make the COVID-19 vaccine compulsory?


Posted by: El roam | Nov 23, 2020 3:39:55 PM

Interesting idea. Worth noting, according to estimations (Gallup) 35% of Americans, oppose vaccination. So, roughly we stay with gap of 5%( if we need to reach 70% indeed, beyond issue of children). On the other hand, and in logistical terms, it may drive people, to do it faster. Time is crucial here. So, that is another benefit.

In other states in the world, some argue that it should be mandatory simply. In the US, it is highly likely impossible. Children, another issue, with the latter, one may suggest, that it can become mandatory. This can become really messy.

P.S: the link posted, has nothing to do it seems, with the issue here. Rather, with the governor of NY and the way he handles the pandemic.


Posted by: El roam | Nov 23, 2020 3:21:36 PM

What if it's styled not as a benefit but as compensation for the time to schedule and attend the vaccination, the discomfort of the vaccine administration itself, and the risks of being vaccinated?

Posted by: Scott Dodson | Nov 23, 2020 2:11:06 PM

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