Anti-Vaxxers Illustrate Danger of Overly Broad Religious Freedom Laws

In case you haven’t heard, the measles are back. In a big way. Cases of measles have been on the increase in the last few years, and this month an outbreak now reaching at least 94 patients has been tied to an exposure at Disneyland.

It appears that the source of this latest infection was likely either a foreign tourist or an American who returned carrying the disease from abroad, but the outbreak has brought renewed attention to the anti-vaccination movement (like this RNS commentary arguing that “Parents who do not vaccinate their children should go to jail”). What hasn’t been highlighted is the fact that the increased instances of measles and other previously-eradicated diseases in this country over the last decade are actually a cautionary tale about religious exemptions.

All states have mandatory vaccine laws for public school students, but almost all states (48 to be precise) allow exemptions for those who have a religious objection to vaccines. And 19 states allow exemptions for those with philosophical/conscientious objections that are not explicitly religious in nature. Although I haven’t delved into the legislative history of each of these laws, I think it’s a fair bet that when they were passed the religious exemptions were intended to protect a very small percentage of the population with religious objections to vaccination, like Christian Scientists or some parts of the Amish community.

It’s unlikely that the exemptions were intended to be used by the growing number of well-educated and well-off parents whose version of a “natural”/”organic” lifestyle has metastasized into vaccine science denial. There is a debate about whether the purpose of religious exemptions is to give religion special privileges or simply to protect religious people from discrimination, especially people of minority religions who may be disproportionately impacted by general laws that are made by people of a majority religion. But regardless of the reason, most religious exemption laws are, as the name suggests, only for religious believers. (In the military conscientious objector context, the set of protected beliefs was expanded to include a philosophical opposition to war that was of a similar scope and gravity to a religious objection.)

But a belief that vaccines cause autism (which is contrary to all scientific evidence) is not the kind of life philosophy that exemption laws are generally designed to protect. And in fact, there have been recent calls to remove the “personal belief” exemption from California’s vaccine law on the grounds that it is being abused and is destroying the herd immunity that is required to protect people who actually cannot be safely vaccinated, like young babies, or immuno-compromised individuals. (“Herd immunity” refers to the idea that a population can support a small percentage of unvaccinated individuals as long as the proportion of vaccinated individuals remains above a certain threshold – in that context herd immunity will protect most of the unvaccinated individuals because outbreaks will be thwarted by the high level of vaccinated individuals).

The irony is that if there were no such exemptions in a vaccine law, it is unlikely that a plaintiff would be able to win a Religious Freedom Restoration Act claim (under a state RFRA or similar statute). A plaintiff with a “personal belief” claim would certainly not be able to obtain a judicial exemption, since RFRAs protect only religious belief.

But even a plaintiff with a religious belief against vaccination would have an uphill battle. The government’s compelling interest in public health and the eradication of fatal diseases, particularly in the population of young children, seems very hard to overcome – especially in a situation where herd immunity is required for successful eradication of the disease.

Further, it’s hard to imagine a case in which you could have stronger third-party interests than this one. For those children who cannot be safely vaccinated, the presence of an unvaccinated child who might transmit the disease is literally a question of life or death.

And the fact that there might be more than one child who cannot be vaccinated in a given school isn’t fatal – that’s the narrow tailoring inquiry, which asks whether the government has designed the law being challenged as narrowly as it can in order to achieve the goal that law is after without unnecessary infringement on people’s rights. The law requiring vaccination of all children who can be safely vaccinated in order to protect both those children and the few children who cannot be safely vaccinated is as narrowly tailored as it can get.

All in all, these vaccination exemptions should remind us of the dangers of including overly broad exemptions in generally applicable laws, especially those protecting public health and access to civil rights like education. Once the exemptions are in, they are hard to get out and very difficult to control.

21 Comments

  • reedjim51@gmail.com' Jim Reed says:

    Christians might be looking for areas where they can disagree with science, and this is a perfect time to stop vaccinating children because if disease increases they can blame Obama.

  • imjessietr@yahoo.com' Kelly says:

    I’ll believe the religious exemption when they can show the quote(s) in their sacred texts that show that vaccinations are to be avoided.

  • fiona64@livejournal.com' fiona64 says:

    The problem with these “ideological exemptions” is that they endanger the people who need real, medical exemptions. Approximately two-thirds of students in Marin County, Calif., have vaccination exemptions. It is extraordinarily unlikely, from a statistical POV, that these are all medically necessary. It’s time to put the ideological exemptions back on the shelf where they belong, so that the immunocompromised can be protected from diseases that were previously eradicated.

  • reedjim51@gmail.com' Jim Reed says:

    Marin sounds conservative.

  • fiona64@livejournal.com' fiona64 says:

    It is about the least conservative place I’ve ever lived. 🙂

  • reedjim51@gmail.com' Jim Reed says:

    Why are two thirds of parents refusing to vaccinate their kids?

  • fiona64@livejournal.com' fiona64 says:

    Because Marin is crunchy-granola central … and people all believe their children are special snowflakes.

  • wandersonacflaw@gmail.com' William Anderson says:

    I read Kelly’s comment and wondered where do they get this stuff from. Google revealed a whole lot of anti vax Christian sites where Biblical passages are strung together to come up with something. See below for my fast found favorite. But I think it is important to be very critical of liberal faiths and clergy. The argument seems to be between science and religion. It isn’t it is between science and anti science fundamentalists. We need liberal clergy to come out and say that the Bible doesn’t say this and parents have a moral responsibility for their kids’ health. I am not ashamed of my faith. I wish clergy wouldnt be either

    Genesis 1:27 teaches us that God created man in His own image.
    ~1 Corinthians 3:16-17 implores us to “know that you are the temple of God, and that the spirit of God dwells in you”.
    ~2 Corinthians 6:16-1 “For you are the temple of the Living God.” God says, “I will dwell in them, and walk in them.”
    We learn from scripture that we are miraculously designed in God’s
    image. In all religions, God is the image of purity and vitality. To
    ensure that we could achieve and enjoy the same purity and vitality,
    God created laws in nature to safeguard against the destruction of
    life. When abided by, the laws of nature give birth to life, cultivate
    health and keep us blemish-free. For
    our own protection, God’s laws of nature determine what our bodies can
    and cannot tolerate.
    There are scriptural passages that teach us why it is not right to
    vaccinate. Vaccines are comprised of
    foreign proteins, and vaccination is the forcible procedure for
    putting foreign proteins in our bodies.
    Scripture gives specific instructions about how we are to care for
    our bodies and repeatedly warns against defiling the body.
    We are commanded to keep these temples clean,
    pure and holy.
    ~1 Peter 1:15-16 teaches us “as He which hath called you is holy, so be you holy in all manner of conversation (life); Because it is written, be you holy, for I am holy.”
    ~Leviticus 11:44-45 tells us to keep the body clean in order to be holy. “You shall therefore sanctify yourselves, and you shall be holy.”
    ~Ephesians 5:27 and ~Romans 12:1 beseech us to preserve our bodies without blemish or any such thing and tells us that it is our duty to do so.
    Our bodies should be “holy, acceptable unto God, which is your reasonable service.”
    ~1 Corinthians 3:16-17 teaches us that to be holy
    we must follow the laws of nature.
    This scriptural passage warns that if any man defile the temple of God,
    he shall be destroyed, “for the temple of God is holy, which you are.”
    The destruction of living tissue,
    and eventually the body, is a natural consequence of a degenerative
    disease process that begins when the body becomes defiled.
    ~Deuteronomy Chapter 14 and ~Leviticus Chapter 11
    To keep us free from blemish, the laws of nature stipulate that our
    bodies cannot tolerate foreign substances.
    For our protection, these scriptural passages list the clean and
    unclean proteins that are both acceptable and unacceptable in our
    bodies in any manner.
    Children are a blessing from God to us
    ~Deuteronomy 28:4a teaches us that our children are holy. “Blessed shall be the fruit of thy body.” The attention we pay to the stewardship of our own bodies must be practiced as well in the loving care of our offspring.
    ~Revelation 12:17 Blessed are the children because
    they are born desiring to keep the commandments of God.
    The life of a holy child must not be defiled with
    foreign and unclean proteins.
    Disease, in both its natural and manufactured forms, is a threat to the
    life of man and child: “the dragon was wroth with the women, and went to make war with the remnant of her seed,”
    ~Luke 17:2 As stewards of their spirits and for their protection, we are obligated to keep their bodies free from blemish: “It
    were better for him that a millstone were hanged about his neck, and
    he cast into the sea, than that he should offend one of these little
    ones.” <
    In order that we may actively and purposefully engage in practices
    that sanctify and purify our bodies, scripture compels us to choose for
    ourselves and our children the foods, medicines and activities that
    preserve and promote life.
    Religious conviction, law and the medical code of ethics
    ~1 Corinthians 6:19 2 and ~Corinthians 6:16
    Christians think of life as a gift of God and the body as a marvelous
    work of divine creation to be reverenced as a temple of God.
    The human person is not only a living body,
    but a body living with spiritual life open to share in the eternal life
    of God and which must be kept holy.
    This tenet forms the basis for religious objection to the practice of
    vaccination.
    ~Psalm 139:13-16 “For I am fearfully and wonderfully made; marvelous are thy works;” and my soul knows that well.
    ~Revelation 14:12 and ~Deuteronomy 13:18 challenges us “to do that which is right in the eyes of the Lord thy God.” To be good stewards of God’s creation, we must act our conscience and obey the laws of nature.
    The fact that some vaccines are cultured in aborted fetal tissue
    presents another ethical concern with the practice of vaccination and
    the policy of forced compliance of this procedure.
    When we believe that murder is sinful, the use of vaccines derived
    from the tissue of an aborted fetus is offensive and morally
    repugnant. When we accept a vaccine
    produced in aborted fetal tissues, we participate in the purposeful
    ending of a life and further violate the dignity of the unborn person.
    ~Exodus 20:13 “You shall not murder.”
    ~Deuteronomy 30:19-20a “I have set before you life and death, blessing and cursing; therefore choose life,” so you and your seed may live.
    Both the Constitution and the medical code of ethical conduct honor
    our sincere need to consciously live according to our spiritual
    beliefs.
    The Constitution enables us to witness to the sacredness of human
    life in both word and action. The
    Constitution denies Congress the power to create laws which prohibit
    the free exercise one’s religious beliefs and it prohibits governmental
    interference with the free exercise of religion.
    An ethical medicine is a system of loving care that respects the
    right of a patient to informed consent and compassionate treatment.
    Medical ethics requires that all
    physicians abide by the Hippocratic Oath, which promises no harm to the
    patient.
    Because vaccination defiles the body with foreign substances known
    to cause death and injury, we have a religious duty to abstain from
    this practice if we are truly committed to our faith.
    The community, our lawmakers and the medical
    providers who advocate vaccination are obliged by law and ethics to
    respect our beliefs.
    ~1 Corinthians 8 St Paul urges respect for the
    conscience of others. Any laws
    restricting conscientious objection to practices that conflict with
    religious belief are unethical.
    The Bible is explicit in it’s instructions to us as a people.
    Living a Christian faith means having a
    commitment to keeping the body blemish-free so that we may have
    abundant life. There is no
    scriptural support for injecting poisons or any virus into the
    bloodstream to cure or prevent disease.
    Scripture is filled, however, with references to the care of the
    human body. People who object to the
    practice of vaccination for religious reasons can be confident that
    they are obeying the Word of God.

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  • mgreen@sunshinetour.com' Michael Green says:

    Stereotyping, much?

  • reedjim51@gmail.com' Jim Reed says:

    Marin is hard to figure out if you don’t live there.

  • cgoslingpbc@aol.com' cgosling says:

    Those who refuse vaccination should be quarantined to their homes for the safety of the rest of us. If quarantines are not adhered to, then fines and possibly confinement should follow. This precedent is already set by the courts and makes sense to most people.

  • dacu@sp2.upenn.edu' Daniel says:

    The author makes a good point, but the headline gives the reader the wrong impression. Religious exemption laws work if they exempt someone based on a religious belief rather than a merely personal belief. Most of the people choosing not to vaccinate their children are not basing the decision on a religious belief as only a very few tiny religious groups oppose vaccination. Most of the people who are choosing to not vaccinate their kids are people with beliefs that do not stem from religion: anti-pharma, natural/organic type people.

  • robert.m.jeffers@lonestar.edu' Rmj says:

    Turns out every place is hard to figure out, if you don’t live there.

  • robert.m.jeffers@lonestar.edu' Rmj says:

    The problem is,as the headline says, law is a blunt instrument. Hard to craft a law subtle enough to allow only “legitimate” religious objections.

    Probably impossible, in fact.

  • robert.m.jeffers@lonestar.edu' Rmj says:

    I’m a “liberal clergy”, but I seriously doubt the people proof texting the Bible are going to find my contrary opinion authoritative.

  • reedjim51@gmail.com' Jim Reed says:

    Religion will take advantage of whatever situation they can find. If a few are against vaccination, then others will latch on because they want to cause trouble so that they can show their religion is superior. They look for ways to screw up the government because it makes them feel better about themselves.

  • woofka2@msn.com' woofka says:

    My kid is vaccinated. But I believe the greatest creators of anti-vaxxers (a term I despise) are those who are so “pro” vaccines that they engage in dishonest, or a least shallow arguments for vaccines. Here is the heart of the issue: vaccines are generally safe, but do carry a risk of side effects, including, in rare cases, death. Yes, all of that is on the insert. S0 what we as a society are really asking is for people to take a risk (however miniscule and reasonable it might be) that their child could in fact die in order to vaccinate to protect the larger community. Until we address this fact we will get nowhere in convincing people to vaccinate. I believed that the risks of disease were outweighed by the risk of vaccination. But if we are going to claim science is on the side of vaccination we cannot ignore the science that says there are also risks. To ignore this and then to have the nerve to accuse non-vaccinators of being ‘selfish’ is dishonest (and, well, selfish!) As with most issues, there are nuances that mean it is not black-and-white. Trying to make it so will only drive people away from vaccines when they consider the loophole in the arguments that pro-vaxers ignore. What parents really want is for their kids to be healthy and safe. Until we address the minimal risks (and work to make vaccines even safer) we will continue to see people refuse vaccines. And I will support that right since I don’t think I have the right to tell a parent they have to risk their child’s life for the sake of the larger population, no matter how small the risk (and you don’t have to look that far back to see that while risk of vaccines may be small, the issue of government control of bodies is far more troubling-think Tuskeegee, forced sterilizations, etc.) Maybe we all need to back up and actually talk to each other instead of judging. Now where I have I heard that idea before?

  • truktyre@hotmail.com' Craptacular says:

    Medical procedures are never 100% effective, I agree. However, not vaccinating due to a belief something bad might happen is putting your own FEAR ahead of the rest of society, not your child.

    That said, without a 100% guarantee of success, why do we force parents to allow doctors to perform medical procedures on sick children? There are dozens of stories of parents getting arrested for allowing their child to die while attempting to pray away whatever ills them. We still prosecute those parents, whose only victims are their own children, yet not those that do not vaccinate, which endangers the rest of us.

    There is no logic when we allow beliefs to trump statistical evidence.

  • woofka2@msn.com' woofka says:

    I am not disputing the effectiveness of vaccines, only the relationship to risk. Risk is subjective in the sense that one’s calculations are based not only on the facts, but on the value of risk one assesses based on personal factors. The “belief something bad might happen” is based on information from the company that makes the vaccine. It is real and yes, children have dies from adverse reactions.
    The false premise of your argument is that by not vaccinating your child they will get sick or sicken another child. The un-vaccinated child RISKS getting the disease. There is no guarantee they will get it. So there are actually two calculations involved for parents: 1) what is the statistical probability my child will contract the disease, and 2) what are the risks from the vaccine itself?
    Conflating the situation in which a demonstrably sick/injured child needs medical attention to one in which a child faces some risk from a disease they may never come into contact with is a false equivalency.
    I am not arguing against vaccinations, I am arguing against the kind of argument you are in fact making: that parents who do not vaccinate must actively (in their view) risk their child’s life for a vaccine against a disease the child may never encounter. Until we can talk about that fear (yes, it is a fear, but again it is based on actual science) we will not get anywhere.
    What I really want is for people to have enough respect for one another that we have honest dialogue. That cannot happen when one side refuses to acknowledge the validity of the other’s views. We do not have to agree, but we must have an honest dialogue. Denying that there is risk is unscientific at best, and contributes to the anti-vaccine movement at worst.

  • truktyre@hotmail.com' Craptacular says:

    “The false premise of your argument is that by not vaccinating your child they will get sick or sicken another child…but we must have an honest dialogue.” – woofka

    So according to your “honest dialogue,” there have been outbreaks of false premises in California and Disney World. Thanks for the chat.

  • rogue458@gmail.com' Kellan says:

    When kids are dying of Bacterial Meningitis or Polio. These parents should be held accountable for the damages. This is unacceptable. Risking my health or my child’s because you don’t want your kids to develop autism or some other developmental disorder. Yes, you have your right to refuse vaccination, but you don’t have the right to endanger others. You are not that special, you are not invincible. This will come back and bite them in the ass.. or at least kill their children they so desperately tried to protect. I’m not trying to be morbid or sick when talking about deceased children, but it will happen.
    Now the thing about vaccines causing autism is outrageous and ludicrous. I’m up to date on ALL vaccinations (and currently renewing several vaccines), and I’m a healthy 20 year old man. My children will be up to date on all required vaccines, even if it hurts them, because my child will not be a vector to disease.

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