"COVID-19, Childhood Vaccinations, and Religious Freedom: A Looming Issue" by Charles J. Russo & Paul T. Babie

COVID-19, Childhood Vaccines, and Religious Freedom:

A Looming Issue

Charles J. Russo & Paul T. Babie

This article is part of our “Reflecting on COVID-19” series.
If you’d like to check out other articles in this series, click here.

Amid efforts to reduce, if not eliminate, the spread of COVID-19, researchers are working on a vaccine to prevent future infections.¹ At the same time, given the fears of some parents that states are overriding their rights to opt out of having their children vaccinated, a looming COVID vaccination issue between the competing interests of public health and parental religious freedom to direct the upbringing of their young could soon be played out.² We briefly reflect on how these potentially conflicting rights can best be balanced for the common good, drawing on both the American and Australian experience.

Now widely, but not universally, accepted, the United States Supreme Court initially entered the fray over vaccines more than a century ago, upholding mandatory inoculations for adults to protect the public welfare.³ The Justices later rejected a challenge to a Texas law requiring vaccinations for school children.⁴ The potential for a COVID-19 vaccination,⁵ coupled with the anti-vaccination movement,⁶ increases the tension between public health and religious freedom. In the United States, for instance, “45 states and Washington D.C. . . . grant religious exemptions for people who have religious objections to immunizations.”⁷ Another “15 states allow philosophical exemptions for those who object to immunizations because of personal, moral or other beliefs.”⁸

In Australia, prior to January 1, 2016, a parent could claim a religious conscientious objection to vaccinations for children.¹⁰ However, on December 31, 2015, the federal government removed this option, with the result that today “only families who fully immunise their children, are on a recognised immunisation catch up schedule or have an approved medical exemption can receive family assistance payments linked to immunisation status such as childcare assistance and Family Tax Benefit Part A Supplement.” Prior to the adoption of this “no jab, no pay” policy, less than 2% of all Australian children were exempted based on parental religious conscientious objections.¹¹ Still, the data can confirm that individuals remain who object to vaccinations on religious grounds, no matter the demonstrated public health benefit.

Vaccinations, whether in Australia or the U.S., are typically administered in a series to young children. Public health authorities thus suggest that children undergo inoculations before they reach the age of two in the U.S. and four in Australia in order to combat diseases like diphtheria–pertussis (whooping cough), tetanus, measles–mumps–rubella, polio, hepatitis B, influenza, and the chicken pox (varicella).¹² Yet, almost a century after the Supreme Court first upheld mandatory student vaccinations as a condition of attending K–12 schools in the U.S.,¹³ legal controversies continue over religious objections even though no major religious denominations forbid their use.¹⁴

Vaccine-related litigation typically concerns parental requests for exemptions from mandatory inoculation requirements due to their religious beliefs, which is in opposition to a vaccine’s prophylactic use to prevent the spread of infectious diseases. Such litigation is likely to occur once a vaccination is available to fight COVID-19. A very limited number of cases involve parental challenges that seek philosophical exemptions based on personal beliefs.¹⁵

When discussing schooling, it is important to recognize that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,”¹⁶ though this is a perspective with which some modern critics disagree.¹⁷ While there is limited judicial analysis of free exercise protection in the Australian Constitution,¹⁸ either generally in educational settings¹⁹ or specifically to the “no jab, no pay” policy of the federal government, significant American jurisprudence assesses the applicability of the First Amendment guarantee in both settings. Thus, the American experience is instructive for those considering these issues in Australia. In Wisconsin v. Yoder,²⁰ for instance, the U.S. Supreme Court extended the rights of parents to raise their children in accord with their own religious beliefs.

In Yoder, parents who were Amish challenged Wisconsin’s compulsory attendance law because they wanted their children to be excused from formal public education beyond eighth grade. Instead, the parents sought to have their children educated in their home communities due to the potential impact that sending them to school would have had on their then almost 300-year old way of life. While reiterating that states could enact reasonable regulations over basic education, in balancing the competing interests, the Supreme Court afforded greater weight to the First Amendment right to religious freedom and the concerns of parents with respect to the upbringing of their children. The Justices ruled that insofar as the Amish way of life and religion were inseparable, ordering the children to attend public high schools may have destroyed both their and their family’s religious beliefs.

Following Yoder, few religious parents can meet the test for excusing their children from compulsory education requirements. In fact, courts consistently deny religion-based applications for exemptions to substantial or material parts of compulsory education requirements, such as sexuality education.²¹ The question that remains, though, regards where an acceptable boundary can be drawn when conflicts arise between educators and parents over vaccinations given that the Supreme Court has generally held that the right of parents to raise their children in accord with their personal and religious beliefs must yield when the health of children is at risk or when there is a recognized threat to public safety.”²²

Bearing in mind potential conflicts over a vaccination for COVID-19, there is need for a careful balancing of the competing individual interests in free exercise with the countervailing community interest in ensuring public health.

Tensions over public safety thus emerge between educational and/or state officials and parents opposed to vaccinations. This is because vaccinations help to protect the common good, especially with a disease such as COVID-19. At this time, it is not readily apparent how easily this virus might be transmitted, which arguably weakens the claims of parents who are opposed to having their children inoculated. Accordingly, it is important to remember that “[w]hile freedom to believe is absolute, freedom to exercise one’s belief is not and must be considered in light of the general public welfare.”²³

Bearing in mind potential conflicts over a vaccination for COVID-19, there is need for a careful balancing of the competing individual interests in free exercise with the countervailing community interest in ensuring public health. This balancing matters because while individuals might claim governmental violations of fundamental rights, such as free exercise, not every such incursion is invalid. Rather, some restrictions, indeed, perhaps many, can be justifiable when pursued for legitimate governmental objectives taken in the public interest. Such “limitation and derogation standards” are in both international human rights instruments, such as the International Covenant on Civil and Political Rights, and in domestic documents, like the American and Australian Constitutions.

In 1985, the American Association for the International Commission of Jurists adopted the Siracusa Principles for use in applying international limitation and derogation principles, “seeking to identify: (a) their legitimate objectives; (b) the general principles of interpretation which govern their imposition and application; and (c) some of the main features of the grounds for limitation or derogation.” The identification of approaches to limitations provisions apply equally to domestic constitutional texts. Thus, the well-known footnote 4 of United States v. Carolene Products Company²⁴ identified the three levels of review in assessing constitutional rights: rational basis, intermediate, and strict scrutiny. While each level of judicial review involves some form of balancing community and individual interests, the third, strict scrutiny, requires public officials to demonstrate that the restrictions they are imposing are as “narrowly tailored” as possible to achieve their ends by “least restrictive means” means possible.²⁵ This kind of balancing is necessary because without it, individual interests in free exercise can be subverted to the community will.

First Amendment jurisprudence in the U.S. provides guidance as to how the balancing might occur in a COVID-19 context. The primary question addresses the appropriate judicial standard under which courts should evaluate parental requests for religious conscientious exemptions: rational relations or compelling interest.²⁶ This inquiry, and the related concern about the sincerity of parental beliefs, raises equal protection concerns by creating two categories of parents: those seeking exemptions for their children based on religious beliefs and those who do not do so. Consequently, insofar as mandatory vaccination laws are based on the police power of the state and its rational relationship to the legitimate governmental concern of maintaining public welfare, absent legislative exemptions, there seems to be little basis on which to create separate categories of parents who wish to have their children exempt from facially neutral laws of general applicability.

When parents seek religious exemptions for their children, courts typically inquire into the sincerity of their beliefs rather than their membership in religious institutions. Such judicial inquiry raises an even more serious concern about the propriety of having civil courts evaluate the sincerity, or even value, of parental religious beliefs — a dangerous precedent to be sure.²⁷ Still, when legislatures enact laws exempting children from inoculations, the perplexing equal protection issues associated with the balancing of rights in light of the potential impact of having children who are not vaccinated attend schools on the public welfare must still be addressed.

But what if the conflict between individual interests in free exercise and community interests in preventing a public health crisis reaches the courts?

American jurisprudence, regardless of whether one agrees with the outcome in any case, provides guidance as to what might assist in balancing the potential interface of free exercise with a COVID-19 vaccination. Yet, because practical matters remain, we offer the following proactive policy suggestions to perhaps avoid litigation.

First, in developing and/or revising policies, public health officials should address the necessity, safety, and timing of vaccinations for school children. In other words, because laws, whether at the state level in the U.S. or the federal level in Australia, typically require the inoculation of children before they reach specified ages, parents and educators may wish to work with professionals in public health agencies to ensure that the young are vaccinated.

Second, educational leaders should involve parent groups and other interested parties and agencies in their communities when developing and updating policies. Including various stakeholders in such dialogue should not only help to garner community support but should also help to ensure compliance with policies.

Third, educational leaders should carefully craft language dealing with religious exemptions. Put another way, while certainly recognizing parental rights to direct the upbringing and education of their children, policy makers must carefully consider the impact that granting even a small number of exemptions might have on the public health and welfare of their communities. Such a concern emerges because granting exemptions may lead to large numbers of people seeking to have their children excused with potentially dire consequences for the common good. Policy language should include information for parents explaining the ramifications of their choices, such as leaving their children susceptible to communicable diseases when they seek to opt out of mandatory vaccination schemes.

Fourth, educational leaders and policy makers should review and revise their vaccination policies periodically. Insofar as inoculations are ordinarily not a controversial topic in most school systems, it is probably sufficient to do so every three to five years rather than annually. Of course, if events like medical advances warrant more frequent review, then educators and their attorneys should prepare appropriately in order to be ready to act when researchers develop a vaccination to fight COVID-19.

But what if the conflict between individual interests in free exercise and community interests in preventing a public health crisis reaches the courts? While it is impossible to say what the outcome might be, an important demonstration of the need for a framework for use in assessing the competing interests presented by COVID-19 arose in Sydney, Australia, on the weekend of June 5-7, 2020. As Black Lives Matter protests in response to the murder of George Floyd raged across the globe, organizers sought an order exempting the event from the COVID-19 police directive prohibiting large public gatherings. The Supreme Court of New South Wales rejected the application, explaining:

A gathering of 5,000 people who are interested in this particular cause, at a time when the entire community is under direction not to gather in groups of more than ten, is an unreasonable proposition. The exercise of the fundamental right of assembly and of expression of political opinion by gathering in numbers is not taken away by the current Public Health Order; it is deferred. The public health threat that has been encountered by our community through the spread of this disease has asked a great deal of many people in many respects throughout the community. A great many people have lost their livelihoods for the time being as a result of the need to conform to these restrictions. Others have been unable to attend funeral services for loved ones. Many forms of public gathering have had to be restricted. The conduct of legal proceedings in open court, a most important aspect of the administration of justice in a free society, has had to be curtailed.²⁸

When balanced against the public health risk posed by COVID-19, the court limited individual interests in assembly, association, and political communication for justifiable reasons. We may disagree with the outcome. Or we may agree. Either way, the outcome in this case is not what matters. What matters is that there be a framework for balancing to occur. Without it, the competing interests cannot be assessed. ♦

Charles J. Russo is Panzer Chair in Education & Director, Ph.D. Program in Educational Leadership, School of Education and Health Sciences, Research Professor of Law, School of Law, University of Dayton, USA. Russo is also an Adjunct Professor in the Law School of the Sydney campus of Notre Dame University of Australia.

Paul T. Babie is Adelaide Law School Professor of the Theory and Law of Property, Adelaide Law School, The University of Adelaide, Australia.

Recommended Citation

Babie, Paul T. and Charles J. Russo. “COVID-19: Why the Balance Between Freedom of Religion and Public Health Matters.” Canopy Forum, May 18, 2020. https://canopyforum.org/2020/05/18/covid-19-why-the-balance-between-freedom-of-religion-and-public-health-matters/

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