Eugene, Your points are well taken and mirror the argument I would expect the government to make. Let me follow up with two points / questions to push on the larger issue a bit: (a) When you say you agree that the vaccination analysis might vary by specific vaccine, I assume you mean that the government might have a harder time proving a compelling governmental interest for some vaccines versus others when trying to argue against a religious exemption. That analysis could vary based upon (i) how effective the vaccine is (for instance, the HPV vaccine only provides protection against 2 of the approximately 40 HPV viruses, although those 2 appear to account for about 70% of the reported cervical and anal cancers related to HPV - http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ); (ii) how contagious the disease is / how it spreads; and (iii) the seriousness of the effects of the disease (i.e. likelihood of death or serious long-term health consequences for those affected). I think we are in agreement on this point, but would appreciate the confirmation.
(b) The question I was raising with regard to the priest / nun hypothetical was whether the proposed action or inaction of the party seeking a religious exemption would (or should) affect the analysis in any way. Using the MMR vaccine as an example, I can see the government saying that the actions or inactions of the religious objector are irrelevant because children can be exposed to the MMR viruses at all times regardless of what the parents or children otherwise do (i.e. there is no realistic way in our society to prevent exposure to a virus that spreads through nose, throat and mouth droplet transmission). However, that same argument does not work as well with regard to HPV. After all, as the government admits: "The surest way to eliminate risk for genital HPV infection is to refrain from any genital contact with another individual." See Item 3 - http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ) If a religious objector says, "I've got a less restrictive way to deal with the problem, i.e. avoidance of extra-marital sexual activity", does the government get a pass on its burden by arguing that "Everyone's doing it and we think you will too, no matter what you tell us"? I recognize that the HPV vaccine may be an outlier on this, but I think it provides good material to try to figure out where the boundaries are in this debate over vaccinations and religious exemptions. I look forward to your thoughts. Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina From: "Volokh, Eugene" <vol...@law.ucla.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Monday, February 2, 2015 1:34 PM Subject: RE: Homeschooling, vaccinations, and Yoder #yiv7149436468 #yiv7149436468 -- _filtered #yiv7149436468 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv7149436468 {font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv7149436468 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv7149436468 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;}#yiv7149436468 #yiv7149436468 p.yiv7149436468MsoNormal, #yiv7149436468 li.yiv7149436468MsoNormal, #yiv7149436468 div.yiv7149436468MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv7149436468 a:link, #yiv7149436468 span.yiv7149436468MsoHyperlink {color:blue;text-decoration:underline;}#yiv7149436468 a:visited, #yiv7149436468 span.yiv7149436468MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv7149436468 p.yiv7149436468MsoAcetate, #yiv7149436468 li.yiv7149436468MsoAcetate, #yiv7149436468 div.yiv7149436468MsoAcetate {margin:0in;margin-bottom:.0001pt;font-size:8.0pt;}#yiv7149436468 span.yiv7149436468hoenzb {}#yiv7149436468 span.yiv7149436468BalloonTextChar {}#yiv7149436468 span.yiv7149436468EmailStyle20 {color:#1F497D;}#yiv7149436468 .yiv7149436468MsoChpDefault {font-size:10.0pt;} _filtered #yiv7149436468 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv7149436468 div.yiv7149436468WordSection1 {}#yiv7149436468 I agree that the vaccination analysis might well vary, in some situations, by the specific vaccine involved. But I’m not sure that the priest/nun hypothetical really illustrates that. One can intend to be a priest or nun, but people are notoriously fallible (I believe Christianity has a thing or two to say about that), and have been known to lapse despite their best intentions. Plus of course priests and nuns sometimes deliberately leave the religious life, and 14-year-olds who intend to become priests and nuns sometimes change their mind before they can actually join. Now, to be sure, HPV spread (like HIV spread) disproportionately stems from those who have more sexual partners than from those who have fewer. But it’s very hard for the government to know with any confidence who will have few (or no) sexual partners – regardless of whether they say they will have few (or no) sexual partners. Given this, if we think people should generally be vaccinated against some disease (because of the danger that they will spread it to others), I can’t see how there can be a vaccine exemption for people based on their claims about their sexual intentions. Also, as I understand it the HPV vaccine is generally urged for people who have not yet begun to have sex. These will generally be minors, and the objections will generally come from their parents. And a parent’s prediction of their child’s future sexual behavior (or even future religious behavior) strikes me as even less credible than the child’s prediction of his or her future sexual or religious behavior. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Monday, February 02, 2015 10:16 AM To: Law & Religion issues for Law Academics Subject: Re: Homeschooling, vaccinations, and Yoder One point which has not been mentioned in this thread is that homeschoolers and religious communities oftentimes object to vaccination on a vaccine specific basis, rather than an across-the-board objection to all vaccines. For instance, as various states have considered adding the HPV vaccination (http://www.ncsl.org/research/health/hpv-vaccine-state-legislation-and-statutes.aspx ), there has been substantial debate in religious communities over the necessity for a vaccination related to a sexually transmitted disease. It strikes me that the government's interest with regard to vaccinations may vary widely based upon the particular vaccination involved (i.e. the government would certainly seem to have a more compelling public health argument for vaccination of diseases which are airborne or passed by mere physical contact, whereas the argument appears far less compelling when dealing with diseases passed solely through sexual activity). After all, what would the government's compelling interest be to require HPV vaccination if a particular student stated that they intended to be a priest or nun and adhere to an oath of perpetual celibacy (or more likely, that the students simply meant to practice abstinence)? Stated another way, if vaccination is analyzed under a "third party burden" perspective, doesn't that analysis vary by the specific vaccine involved? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina From: Richard Dougherty <dou...@udallas.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Monday, February 2, 2015 11:39 AM Subject: Re: Homeschooling, vaccinations, and Yoder If I remember correctly, in Texas the tipping point was a court decision, Leeper v. Arlington, in which the court recognized home schools as private schools under Texas law. Richard Dougherty On Mon, Feb 2, 2015 at 9:56 AM, Ira Lupu <icl...@law.gwu.edu> wrote: I did very similar research for a piece I wrote in the B.U. L. Rev. in 1987, and found exactly the same thing -- courts very much resisted extending Yoder into a general right to home school. They distinguished Yoder based on age of the children and character of the relevant religious community (recall the emphasis in Yoder on Amish self-reliance over a long period of time). Legislatures and agencies did the work of extending the right to home school to a much broader population. On Mon, Feb 2, 2015 at 10:50 AM, Berg, Thomas C. <tcb...@stthomas.edu> wrote: Neal Devins’s article in the George Washington Law Review (1992 I think) documents this dynamic: home-schoolers losing in court after Yoder but then prevailing in legislature and agencies. -----------------------------------------Thomas C. BergJames L. Oberstar Professor of Law and Public PolicyUniversity of St. Thomas School of LawMSL 400, 1000 LaSalle AvenueMinneapolis, MN 55403-2015Phone: (651) 962-4918Fax: (651) 962-4996E-mail: tcberg@stthomas.eduSSRN: http://ssrn.com/author=261564Weblog: http://www.mirrorofjustice.blogs.com---------------------------------------------------------------------------- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock Sent: Monday, February 02, 2015 8:31 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Homeschooling, vaccinations, and Yoder This is impressionistic and not based on a systematic survey, but home schoolers lost most of their cases challenging restrictions on home schooling. For better or worse, courts said Yoder was only about the Amish. Home schoolers won their battle in most states politically, through the legislature or through continued pressure on the relevant state agencies. Douglas LaycockRobert E. Scott Distinguished Professor of LawUniversity of Virginia Law School580 Massie RoadCharlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, February 02, 2015 1:00 AM To: Law & Religion issues for Law Academics Subject: Homeschooling, vaccinations, and Yoder I agree that homeschooling is a possible constraint on the effectiveness of schooling-based immunization, though given the burdens of homeschooling, I’m not sure how many people’s homeschooling choices are going to be driven primarily by vaccination preferences. But can you elaborate, please, on Yoder leading to “unregulated home schooling”? As I read Yoder, it authorized an exemption from schooling – with no requirement for further study, no requirement of passing various tests, etc. –for ages 14 and up, and pretty strongly suggested that no exemption from schooling would be available for materially younger children. Most homeschoolers, especially those who homeschool in the prime vaccination years, wouldn’t really get the benefit of Yoder as such. More broadly, I don’t think there’s much in Yoder that suggests that any exemption regime has to be “virtually unregulated.” And http://nces.ed.gov/programs/digest/d13/tables/dt13_206.20.asp and http://nces.ed.gov/pubs2013/2013028/tables/table_07.asp suggest that the big surge in homeschooling, from 1.7% in 1999 to 3.4% in 2012-13, came well after Yoder. It certainly may be the case that there is such a strong causal link, but I’d just like to hear a little more about it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Sunday, February 01, 2015 9:27 PM To: d...@crab.rutgers.edu; Law & Religion issues for Law Academics Subject: RE: Vaccine objectors one thought on Marty's point 1. The number of children being home schooled is huge. If the vehicle for requiring immunization is schooling then many people will avoid the mandate by opting out of schools. Virtually unregulated home schooling is one of the consequences of Yoder. ************************************************* Paul FinkelmanSenior FellowPenn Program on Democracy, Citizenship, and ConstitutionalismUniversity of PennsylvaniaandScholar-in-Residence National Constitution CenterPhiladelphia, Pennsylvania 518-439-7296 (p)518-605-0296 (c) paul.finkel...@albanylaw.eduwww.paulfinkelman.com*************************************************From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane [d...@crab.rutgers.edu] Sent: Sunday, February 01, 2015 11:15 PM To: Law & Religion issues for Law Academics Subject: Re: Vaccine objectorsMarty,I agree with # 1, except in states that might have a particularly robust state free exercise doctrine. I also agree with # 2.The issue with respect to # 3, though, is this: What if it turns out that an exemption regime limited to actual religious objections (and not "personal" ones) did not produce serious third-party burdens because the number of kids left unvaccinated would not be enough to compromise "herd immunity"? Such a regime would, I believe, be constitutional. But it does raise at least a question for folks who (a) argue that "religion is not special," (b) it is generally unfair to limit exemption regimes to folks with religious motives, and (c) the best remedy to such unfairness should generally be to "level up" to include deep non-religious beliefs rather than "level down" to eliminate exemptions entirely. PerryOn 02/01/2015 10:38 pm, Marty Lederman wrote: 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. _______________________________________________ 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg _______________________________________________ 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. -- Richard J. Dougherty, Ph.D.Chairman, Politics DepartmentUniversity of Dallas1845 E. Northgate DriveIrving, TX 75062972-721-5043 _______________________________________________ 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. _______________________________________________ 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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