Life, Liberty, & Vaccines:

The Clash between the Coronavirus and Religious Freedom

Sara Pullen Guercio

Like most of us these days, we were sitting on the couch. My husband said grimly, “Let’s see what’s going on in the world…” and turned on the news. The TV flickered and we steeled ourselves, wine in hand, as the information onslaught that we had been avoiding for most of the day began. On the docket that evening was an epidemiologist from Harvard warning that some form of social distancing could continue into 2022. After the segment had concluded, a commercial for a psoriasis drug droned in the background as my husband got up for a snack. He sighed from the kitchen, “That vaccine can’t come soon enough.” Still facing the TV, I nodded (to myself mostly), but my medical experience and legal knowledge immediately began quarreling over this question: Could the government force people to receive the Coronavirus vaccine?

I was an ICU nurse before I started law school at Emory. Both in nursing school and while practicing as a nurse, infectious diseases stood in the foreground. As healthcare workers, we spend our time and energy protecting ourselves and our patients from those diseases using the shields we have — hand washing campaigns, PPE, sepsis protocols, tuberculosis screenings, dressing changes, and vaccines. In fact, at every hospital I worked at, nurses were required to offer flu shots to those patients who were being discharged and had not received one that season. Of course, patients could refuse.

The flu vaccine was always particularly controversial, and most who refused had a reason why; for example, “I don’t believe in vaccines!”, “I don’t ever get the flu!”, or “I got the shot and I still got the flu!” There are also scientifically-based reasons not to get the flu shot (allergy to eggs, for example), but none of these other responses ever surprised me. Each year, the flu shot is created using the three most prevalent strains from the previous season. The vaccine creators bank on those strains continuing to be the most problematic the following fall. This works well enough, unless the flu virus mutates or a less prevalent strain becomes more widespread. Regardless of the reason, when someone refused, I respected their choice. While nurses try to educate patients to ensure they have all the information they need to make an informed decision, nurses are patient advocates first and a patient’s right to choose is sacred.

Since leaving the bedside and graduating from law school, I have gained a new appreciation for other rights individuals in the United States have — free speech, privacy, the right to vote, and the right to religious freedom. As I sat on the couch that night, I contemplated how religious freedom is an area in which my nursing experience and my legal education urge divergent results. What will we do when we have a vaccine for the Coronavirus, but individuals refuse to take the vaccine for religious reasons?

While nurses try to educate patients to ensure they have all the information they need to make an informed decision, nurses are patient advocates first and a patient’s right to choose is sacred.

As a nurse, my mind runs to religious groups who refuse blood products or medications derived from pork for religious reasons. For example, it is well known that Jehovah’s Witnesses refuse blood transfusions, often even when the product could save their lives. Some Orthodox Jewish factions refuse Novolog insulin because it is derived from pork pancreas. Likewise, a handful of religious groups refuse vaccines for the same reasons. Another group, colloquially referred to as “Anti-vaxxers,” use personal choice, not necessarily religion, to support their refusal of vaccines.

Particular religious factions and Anti-vaxxers would likely refuse a Coronavirus vaccine. The issue with these refusals would be two-fold. First, there would be a lack of herd immunity in specific groups that already refuse medical treatments to some degree and, thus, are more vulnerable. Second, like the flu shot, widespread refusal could create an opportunity for the virus to mutate in these populations, which would render the vaccine ineffective for the larger already-vaccinated population. Given these risks, can the government force people to take the vaccine?

To answer this question, we begin with the First Amendment religious freedom clause: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .” This language is vague, but it is what we have. Its vagueness raises many questions regarding the intersect of a forced Coronavirus vaccine and the right to religious freedom. For example, what if Congress was not the authoritative body that made a law requiring citizens to receive the vaccine? What if state Governors required it? What if public schools required it? Similarly, what if it was not a law — perhaps the President required vaccination through an Executive Order? Finally, is science a form of “religion”? All these questions are thought-provoking and important; however, where the legal challenge will likely lie is with the words “free exercise.”

Protection for the free exercise of religion in the United States dates back to the founding of our nation. The Founders distinguished free exercise of religion from freedom of conscience. The former was the act or practice of religion (e.g. going to Church).1 John Witte, Jr. & Joel A. Nicols, Religion and the American Constitutional Experiment, 34-35 (4th ed. 2016) The latter was the mental choice between the believer and God as to, in the words of James Madison, “the duty he owes the Creator and the manner in which that duty is to be discharged.”2 Id. In reality, these concepts are not so easily separated. After all, it is freedom of conscience that is the basis for conscientious religious objection to legal obligations, such as parents opting out of required vaccinations for public school children.3 While freedom of conscience is the foundation for excusing people from complying with certain laws, it is notably absent from the final First Amendment. Some earlier drafts of the religious freedom clause included language related to freedom of conscience principles. Id. at 295–97.

Nowadays, we may think making religious exceptions to certain laws is normal or automatic. For example, Jehovah’s Witnesses can refuse to swear an oath and Native Americans can use certain Schedule I drugs for religious ceremonies.4 Id. at 268–269. Yet, this regime of exceptions has not always been so generous. Today, the test for purely federal religious freedom claims makes it hard for an individual to prevail on such a claim. Although the test has shifted over the years, the Supreme Court uses the test laid out in Employment Division v. Smith5 494 U.S. 872 (1990)., which almost always guarantees the government will win these cases.6 Id. at 146–47.

Soon after Smith, Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993, hoping to force the Court to use a stricter test.7 Id. at 149–50. But three years later, in City of Boerne v. Flores8 521 U.S. 507 (1997)., the Supreme Court held the original RFRA could not be used against state laws. In response to this, twenty-one states enacted their own RFRA statutes.

The result of the federal and state RFRA statutes is a patchwork across the country of how the religious freedom test applies.9 Witte & Nicols, supra note 1, at 280. Federal RFRA claims must be brought against federal laws. State RFRA claims must be brought against state laws, but only in the jurisdictions that have enacted them. Thus, where you live can dictate the extent to which your free exercise rights are protected.

What will we do when we have a vaccine for the Coronavirus, but individuals refuse to take the vaccine for religious reasons?

Given this legal landscape, we revisit the original question: Can the government force its citizens to take the Coronavirus vaccine? The answer is probably yes, but it likely depends on the group itself (religious group or Anti-vaxxers), on the vaccine content (whether it has pork or blood components), the type of claim raised, and where in the country the claim is brought.

Assuming we are in a state with RFRA protection and the state makes a law mandating citizens receive the Coronavirus vaccine, the maximum amount of legal protection would be afforded. However, that may not be enough to allow exceptions. In order to be able to refuse the vaccine, the Court would require the individual to show three things: 1) the individual’s religion was “substantially burdened”, 2) the state did not have a compelling reason to make the law, and 3) the government is requiring a more restrictive alternative when a less restrictive option would have the same result.

Truly religious claimants could likely satisfy the first element; however, the Anti-vaxxer argument would fail because their choice to refuse vaccinations is likely not religiously based.

On the second requirement, a national public health emergency will count as a compelling state interest. Not only is our country suffering economically from the Coronavirus pandemic, but over 100,000 American lives have been lost and the number is still climbing. If protecting Americans from a pandemic is not a good enough reason, I cannot imagine one that would be. Indeed, I doubt nothing but war on our soil would be more compelling. Still, religious individuals believe being forced to receive a vaccine with components prohibited by their religion results in spiritual damnation, and this concern cannot be carelessly tossed to the side. Obviously, more genuine religious claims would be weightier and could tilt the balance in the claimant’s favor, but given the times, I would estimate the government would win on this factor.

To the third requirement, it is true that social distancing, mask-donning, and hand washing are all alternatives. But these are not alternatives to eradicating the virus — only to mitigating its spread. Other true alternatives, such as containing unvaccinated individuals, are impractical and would infringe upon other fundamental rights. An argument may be made for herd immunity, but, as we have seen from the resurgence of measles in certain communities, this is only effective when there are enough people that are vaccinated. Additionally, like the flu vaccine, there is a risk the virus could mutate in the unvaccinated populations, which could risk the effectiveness of the original vaccine. The only viable alternative comparable to a vaccine would be an effective antiviral. This would certainly change the calculus, but given the status quo where no effective treatment exists, the government would likely win on this factor.

If you are keeping score, because of the heavy public health, safety, and welfare burden, the government would probably win two out of three elements. Thus, the government could be allowed to compel Coronavirus vaccinations, even for those with the heaviest religious objections, under the current legal regime.

While this is one potential outcome, there are many other factors to consider. First, the Supreme Court is not known for being predictable in the religious freedom arena. It is possible that a holding in such a case would be limited to its facts. It is also possible that the Supreme Court could abandon the current tests and create a new one.

If protecting Americans from a pandemic is not a good enough reason, I cannot imagine one that would be.

Second, there are other potential arguments that should be considered on a more granular level, but we cannot address those here. These include the potential for a “freedom of conscience” argument for the anti-vaxxers and the potential for a claimant to put forth a theory combining other fundamental rights with the religious freedom right to create a “super-right”.10 However, an inquiry into the hybrid right may end in the same result. The highest level of review, strict scrutiny, would still be applied. It is unclear if another right, such as privacy, would be enough to supersede the weighty state interest in this case. Ultimately, there are other avenues and opportunities that potential claimants could take which could lead to different outcomes.

For me, the debate continues, and I waffle back and forth on what would, should, or could happen. As a nurse, with family and friends on the front lines of this epidemic, I want the maximum amount of protection for public health reasons; if that is a mandatory vaccine, I am all for it. But, as a nurse and an American woman, I am particularly concerned with privacy rights and the importance of the right to have a medical choice; I wonder and worry what precedent such a vaccination requirement would set.

Though the argument above suggests the government could require its citizens to be vaccinated, even when using the strictest legal test available, forcing a vaccine upon a United States citizen is a long shot. The reality is, if people are complaining about staying in their houses and wearing masks in public, what do you think would happen if they were forced to receive a vaccine? Candidly, I hope it does not come to any of this and both an effective treatment and vaccine become available shortly. But, nowadays, anything could happen…Now, how about an episode of Tiger King and a glass of wine? ♦

Sara Guercio is a Registered Nurse and a recent graduate of Emory Law School. She will join Alston & Bird’s Atlanta office as an Associate in the Technology and Privacy practice group.