Marty, I think the analysis has a lot of similarities whether the question is framed as (a) what religious exemptions (if any) should a legislature grant to vaccination laws or (b) what exemptions might be required under a Free Exercise Clause analysis. My point was simply to question whether a "one size fits all vaccinations" approach answered the question or whether the analysis might be varied based upon the particular vaccine involved. Perhaps the answer is that once legislators (or administrative regulators) decide that any vaccine should be mandated, there is no basis for distinguishing between vaccines for exemptions purposes and you either have a religious exemption which applies to all vaccines, or have no religious exemption at all.
Out of curiosity, why do you think a Free Exercise claim for an exemption from a vaccination requirement is a "nonstarter"? Is it simply because you believe that the government's interest will always be sufficiently compelling to outweigh the interest of the individual? To my point, doesn't that depend on the particular vaccination involved? I raised the HPV vaccine as an example simply because it seems to fit into a different category from other government required vaccines (i.e. different method of disease spreading, etc.), and I was curious on reactions as to whether those differences warranted any different analysis when considering religious exemptions. But I could also have raised the issue regarding those vaccines which are derived from aborted fetal cell lines (over which there are been a fair amount of debate and moral analysis - for example see Embryonic Stem Cell Research and Vaccines using Fetal Tissue ). Assuming that there is only a single source of the vaccine and no alternative vaccine available, I think a government mandated vaccine of this sort could raise serious religious liberty concerns. And for the record, my prior posts should not be interpreted as arguing for a broad constitutionally mandated religious exemption from generally applicable vaccination laws. I was simply posing queries as to whether the debate was affected by the specific vaccine involved and, if so, what implications that might have on the exemptions question. Best, Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina From: Marty Lederman <lederman.ma...@gmail.com> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Monday, February 2, 2015 3:34 PM Subject: Re: Homeschooling, vaccinations, and Yoder Once again: What question are we asking? I thought we were discussing what exemptions, if any, a legislature should enact (or, more to the point, repeal). And surely it'd be ridiculous for a legislature to craft an exemption limited to "minors who promise they'll never have sex." Will, on the other hand, appears to be arguing that if a legislature refuses to enact a religious exemption -- as only West Virginia and Mississippi do today -- then a religious objector ought to be able to obtain an exemption from a court anyway, presumably under the Free Exercise Clause. A nonstarter, I think. On Mon, Feb 2, 2015 at 3:21 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: I much appreciate Will’s responses; let me offer some in turn. Will writes: (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. I think items (ii) and (iii) are the most important ones. Item (i) would be important, I think, only as to vaccines that are of very low effectiveness. Even if a vaccine is effective only in some cases, requiring it can still be justified on the theory that some protection is better than none (especially if that some protection can materially slow the spread of the disease). (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"? Well, why not, especially if that religious objector is 13 at the time? “Everyone’s doing it, and we think there’s a strong likelihood that many of those who say they won’t nonetheless will, no matter what they tell us” strikes me as quite a sensible argument – not a pass on the government’s burden, but rather the government discharging its burden. It doesn’t even have to be “we think you will too,” in the sense that “we believe there’s a >50% chance that you in particular will have sex at one point, notwithstanding your assurance that you will never have sex.” It suffices, I think, that the government can show that many 13-year-olds who say they’ll become priests or nuns will nonetheless end up having sex, whether before, during, or after (or instead of) their membership in a religious order. Eugene _______________________________________________ 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.
_______________________________________________ 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.
