A virtual conference organized in partnership with Brigham Young University Law School, Emory University Law School, Notre Dame Law School, St. John’s University School of Law, and the Villanova University Charles Widger School of Law. View the full video and browse all essays here.
Section A. Constitutional Law (Jane Wise, moderator)
“Religious Exceptions to COVID Vaccine Mandates”
Doriane Lambelet Coleman
Just as individual cells are permeable so that disease can move from cell to cell and spread within our bodies, so too our bodies are permeable so that disease can move from individual to individual and spread within our communities. Those who’ve recovered from infectious disease typically have some degree of immunity, which results from the antibodies we develop to fight the infection. Like soldiers who’ve defeated the enemy and stand guard for a time to repel further invasions, antibodies linger in our cells, remembering the disease and how to fight it if it returns. The immunity that comes from having survived disease may be incomplete or temporary, but so long as it resides within us, we’re unlikely to become ill again ourselves, and we’re also unlikely to contaminate others.
The more of us who are immune, the more the group and its still-susceptible individuals are protected from disease. This is how individual immunity eventually becomes herd immunity. However, achieving herd immunity through disease recovery can be enormously costly in human and economic terms; and, with some exceptions, it’s usually not durable. In contrast, vaccines essentially do the same work at a much lower human cost, and the immunity they secure is typically durable. In the face of infectious disease, it, therefore, makes sense to be communitarian – or at least to privilege our communitarian instincts; it makes sense to think collectively rather than individually. This means vaccinating to achieve herd immunity.
Traditional Vaccination Law
This communitarian principle is deeply embedded in our most basic law which authorizes the government to impose otherwise abhorrent restrictions on individual liberty, including mandatory vaccination and quarantine, in epidemic and pandemic conditions. As the United States Supreme Court explained in its 1905 decision in Jacobson v. Massachusetts, the only case squarely to address the constitutionality of a local vaccination mandate,
According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations … as will protect the public health and the public safety.
There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society would not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
“The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority … essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.”
On the facts, the Jacobson court held that the City of Cambridge could lawfully require all healthy individuals to be vaccinated against smallpox. In the process, it rejected the petitioner’s argument that individuals have a substantive due process right to refuse their consent in circumstances where local authorities have concluded that universal vaccination is necessary to protect the public health.
Since Jacobson, the Court has decided only a handful of cases touching on vaccine mandates, none of which questioned its conclusion that liberty can be significantly ordered in the face of infectious disease. Thus, Zucht v. King (1922) cited Jacobson as “settl[ing] that it is within the police power to provide for compulsory vaccination” including as a condition of attendance at public and private school. Prince v. Massachusetts (1944) cited Jacobson for the propositions that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds” and that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” More recently, the Court denied certiorari in Phillips v. City of New York (2015), leaving in place the Second Circuit’s finding that the appellants’ free exercise “challenge to the mandatory vaccination regime is … no more compelling than Jacobson’s was more than a century ago.” Finally, in declining to vote to enjoin California’s COVID-related directives, in South Bay United Pentecostal Church v. Newsome (2020), Chief Justice Roberts cited Jacobson for the proposition that “[o]ur Constitution principally entrusts ‘the safety and health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
The Chief’s reference in South Bay United is notable for its application of Jacobson to religious freedom claims. The sense from this and the dictum in Prince is that on infectious disease facts, at least in the heart of the emergency if not more generally, the source of the liberty claim doesn’t matter so much. Rather, what matters in this context is more basic: public health, public safety, the common good, organized society, and liberty for all.
Notwithstanding this apparently plenary authority, or else given its terms, the states have mostly opted to include religious exceptions in their vaccine mandates. Jacobson also provided the grounds for this policy choice, as it concluded with the admonition – directed in that case at health exceptions – that “‘All laws … should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always … be presumed that the legislature intended exceptions to its language which would avoid the results of this character. The reason of the law in such cases should prevail over its letter.’”
As I have written elsewhere, over time, the states’ political calculus seems to have been that when it’s possible to accommodate religious objections without weakening the herd’s immunity or jeopardizing liberty for all, it is both just and reasonable to do so. On the same rationales, the converse has also been true. That is, exceptions tend to be more numerous and generously administered – individual liberty tends to be greater – when the immunity of the herd is well established; and there is retrenchment when it weakens. The recent moves by New York and California to adjust their mandates in the wake of measles outbreaks are illustrative. In choosing to forego religious exceptions in this period, they joined Mississippi and West Virginia as among the most restrictive jurisdictions in the country.
Religious Exceptions to COVID Vaccine Mandates
That it makes sense to privilege public health over individual liberty in the face of infectious disease doesn’t mean that we’ll go easily into the COVID vaccine; we need mandates precisely because there has always been resistance to vaccination. Historically, the resistance has been nonpartisan, grounded in fear and distrust, but also in political theory and broadly-held social norms. Fear of vaccination stems from the idea of inoculation as disease, and of vaccines as causing rather than preventing illness. Distrust is of the authorities, based in doubt about their grasp of the science and the consequences of vaccination. It also reflects concern that policy may be politically or commercially rather than scientifically driven. This combination of fear and distrust tends to make people self-protective, self- rather than community-centered. Intellectualizing this self-protectiveness as a liberty interest – for example as an interest in bodily autonomy – gives it political and legal power. Of course, objections based on religious convictions rather than fear and distrust are different; but to the extent the resulting power is actualized in the form of exceptions, both allow adherents who wish to remain in the community and disease-free to free-ride on the willingness of others to be vaccinated. All of this is as true for COVID as it has been in other epidemics and pandemic conditions. But because COVID has been unusually devastating, we can expect that mandates will once again make their way to the Supreme Court.
Thus, we can predict that just as religiously-motivated individuals and groups have challenged the states’ COVID-related public gathering orders, so too they will challenge any COVID vaccine mandates. Jacobson itself will be at issue in that context, and it is certainly possible that the new composition of the Court will affect the outcome of that challenge. We got a hint of this over the summer, as Justices Alito, Thomas, and Kavanaugh, writing in dissent in Calvary Chapel Dayton Valley v. Sisolak, cautioned that
[i]t is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the Covid-19 pandemic . . . It is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for smallpox. It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.
When that challenge comes, Jacobson should nevertheless continue to provide substantial guidance. That is, as the Court suggested at the end of that opinion, the question should be whether it would be easy enough to accommodate religious freedom claims without harming either the right of other individuals to be free from disease or the public interest in establishing the immunity of the herd. If it would, on Jacobson’s rationale that – in a political community committed to liberty for all – “[g]eneral terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence,” we should endeavor to do so.
This is because, in concept, state laws that allow for religious exceptions to vaccination requirements make sense for everyone. For religious people, exceptions are justified by their convictions. For everyone else, they are justified politically, by our particular social compact. As Jacobson teaches, once basic health and safety are secured, our polity’s first principles are liberty and equality. Everyone in the community is theoretically committed to these principles and the embedded bargain: bounded by the harm principle, freedom for others is the price we agree to pay in exchange for our own. As applied, so long as disease-susceptible individuals are protected and herd immunity can still be achieved, religious exceptions do no cognizable harm; and tolerating – if not also respecting and supporting – the exceptions fulfills the terms of the compact. In concept, so long as there is at least mutual tolerance, it’s ok that you free ride sometimes, because sometimes it will be me; and that’s how our society works. (Respect and support are beyond tolerance and are generally possible only when there is real reciprocity. Where the bargain is theoretically mutual but in fact asymmetrical, these outcomes are unlikely.)
In practice, both exceptions and law reform that would restrict them are not only constitutional but also on sound moral ground and politically viable when they hew closely to these justifications. Thus, if susceptible individuals can’t be protected or herd immunity achieved without near-universal vaccination, as Chief Justice Roberts’ nod to Jacobson in South Bay United intimated, religious exceptions won’t make sense – no matter the constitutional standard – since they would defeat the most basic purpose of organized society: the physical safety of its members. Religious objectors who insist on being accommodated in these circumstances would themselves be in breach of the social compact. However, if it would take less than universal vaccination to keep us safe, and the numbers who would seek religious exceptions in a given community wouldn’t tip the balance, we should work in the context of the COVID vaccine as we have traditionally done, toward growing herd immunity without them. This includes taking advantage of those who will happily vaccinate—assuming there is ultimately good reason to trust in the safety and efficacy of the vaccine, I count myself among this group; and educating and incentivizing others who could be persuaded to do so willingly. Finally, if the number of religiously-motivated resisters is – or grows – too high, if it would not be too costly, with the support of the religious communities at issue we should consider screening claims to exclude individuals who are using religion as a pretext for fear, distrust, or selfishness. In epidemic and pandemic conditions, neither society nor those with real convictions should be burdened by fraudulent, even if understandable, claims for a pass.⬥
Doriane Lambelet Coleman is Professor of Law at Duke Law School, Senior Fellow at Duke University’s Kenan Institute for Ethics, and Associate of the Trent Center for Bioethics, Humanities & History of Medicine. A regular teacher of Torts and Trusts and Estates, she has also taught courses in Children and Law, Medicine and Law, and Sex and Law. Over time, broadly speaking, her work has focused on how the law in a heterogeneous liberal democracy resolves important cultural collisions, including those implicating competing constitutional rights and interests. This has included work on cultural defenses to immigrant crime, parental rights and medical decision making, and the meaning and significance of sex in law.