I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification:
1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a "personal" objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view. On Sun, Feb 1, 2015 at 6:41 PM, Perry Dane <d...@crab.rutgers.edu> wrote: > Sandy, > > Thanks. > > I did elide the state's distinct interest (separate from its general > interest in assuring herd immunity) in making sure that individual children > are protected from illness. That might indeed be compelling. > > But if the rest of the herd is vaccinated, then the risk to the individual > child might (I'm just speculating here) be minimal, which might change the > calculation and distinguish this case from the transfusion or cancer > treatment cases. Of course, there's a free rider issue here, of sorts. > But should be object to free-riding in principle, or only in the sort of > free-riding that threatens the provision of the public good at issue? > > Perry > > On 02/01/2015 6:19 pm, Levinson, Sanford V wrote: > > > This is certainly thoughtful. But what about the Jehovah's Witnesses cases > re transfusions? Are we necessarily to prefer the interests of the > religious parents over the health and safety of the child? Or do we simply > say that the risk of measles, polio, tetanus etc. isn't so serious as the > consequences of no transfusion. But the Jehovah's Witness child threatens > no one else, whereas, by stipulation, the unvaccinated child does threaten > the herd. > Sandy > > Sent from my iPhone > > On Feb 1, 2015, at 3:41 PM, Perry Dane <d...@crab.rutgers.edu> wrote: > > Hi all, > > Without getting deeply mired myself (right now) in the normative > implications here, it might still be worth noting that: > > 1. Exemptions from vaccination requirements only become a serious public > health issue when they increase to the point of threatening "herd > immunity." That is to say, we can -- from a public health perspective -- > tolerate some exemptions, but not too many. > > 2. According to some studies, states that allow "personal" in addition to > "religious" exemptions, and states that grant exemptions "easily," have > (not a surprise) a higher rate of non-vaccinators than states that limit > exemptions to "religious" motives or put more hurdles (documentation, etc.) > in the way of folks seeking exemptions. See, e.g., > http://www.ncbi.nlm.nih.gov/pubmed/17032989 > > 3. It might even be possible, though I don't have any numbers to support > this, that limiting exemptions to genuine "religious" objectors, and > defining religion in any of the standard ways, would produce a rate of > non-vaccination low enough not to pose a major public health risk. (That > still leaves, of course, the question of risk to the individual > unvaccinated child. But even that risk might be considerably reduced if > "herd immunity" is in place.) > > That is to say, vaccination might be one of those contexts in which > society has a solid compelling interest in enforcing a rule overall but not > necessarily a compelling interest in enforcing that rule on genuinely > religious objectors. (That was, for better or worse, Burger's argument in > *Yoder*). > > The obvious challenge here is to the "religion is not special" view. If > "leveling up" produces distinctly bad results (of a sort not produced by > more limited religious exemptions), should that be a reason to "level down" > and eliminate all exemptions? That is to say, should religious objectors > lose rights they might otherwise have if too many non-religious folks want > to get on the bandwagon? > > And even for the rest of us, who do think that "religion is special," the > intrusion of these sorts of facts creates a quandary. What if, for > example, one part of the country has a number of religious objectors below > the "herd immunity" threshold and another part of the country has a number > above the threshold? How should law respond? > > As I said, I'm just asking the question here, not trying to answer it. > > Perry > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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