RE: Homeschooling, vaccinations, and Yoder

[Finkelman, Paul]

I think Yoder set the stage for exemptions from schools and for people to 
demand, first on religious grounds, and then on secular grounds, the right to 
keep their children completely out of any schools.  There was a significant 
rise in home schooling after Yoder, although I do not have the statistics 
handy.  (I should add that I home schooled my daughter (in 4 different states) 
until 8th grade, and was always shocked at how little the states did to 
investigate whether I was qualified to do so or what I was teaching her.  In 
Virginia I only had to prove that I had a college degree to be allowed to home 
school.  If I remember correctly, in Oklahoma I was not required to even tell 
the state I was homeschooling my child.  On the other hand, in some states, 
home schooling is regulated and there is even mandated testing to prove the 
home schooling is going on and is effective.



I agree that people are unlikely to home school merely to avoid vaccinations.  
My point is that children who are home schooled may never be vaccinated.




*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
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 Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.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 objectors

Marty,

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 "r

Homeschooling, vaccinations, and Yoder

[Volokh, Eugene]

   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 Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.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 objectors

Marty,

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.

Perry

On 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 n

RE: Vaccine objectors

[Finkelman, Paul]

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 Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.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 objectors


Marty,

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.

Perry

On 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.
___
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RE: Vaccine objectors

[Perry Dane]

 

Sandy, 

Normatively, I do think that when the risk to the health of
a child is grave and imminent, the state can and should intervene and
require treatment. 

Perry 

On 02/01/2015 11:31 pm, Levinson, Sanford V
wrote: 

> I'm still not certain what Perry's position is re the
Jehovah's Witness children, where the adverse consequences are
"internalized" to the child. 
> 
> sandy
 ___
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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.

RE: Vaccine objectors

[Levinson, Sanford V]

I’m still not certain what Perry’s position is re the Jehovah’s Witness 
children, where the adverse consequences are “internalized” to the child.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane
Sent: Sunday, February 01, 2015 10:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Vaccine objectors


Marty,

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.

Perry

On 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.

Re: Vaccine objectors

[Perry Dane]

 

Marty, 

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. 

Perry 

On 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 
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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.

RE: Vaccine objectors

[Levinson, Sanford V]

I appreciate Marty’s clarification.  I, of course, agree with him, though, 
equally obviously, I wonder where we draw the line at parental decisionmaking 
that most competent authorities believe risks (serious?) harm to their 
children, including Jehovah’s Witnesses and Christian Scientists.  I would like 
to that Marty’s statement in “3” below would be widely accepted, but I assume 
that’s the big question left open by Hobby Lobby, which can be read (though not 
necessarily so) as recklessly indifferent to third-party effects.  Perhaps the 
shift from contraception coverage to measles vaccinations will help clarify 
that aspect of religious accommodations.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, February 01, 2015 9:39 PM
To: Perry Dane; Law & Religion issues for Law Academics
Subject: Re: Vaccine objectors

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 
mailto: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 
mailto: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 co

Re: Vaccine objectors

[Marty Lederman]

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  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  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

RE: Vaccine objectors

[Finkelman, Paul]

One issue not raised hete is the vast number on unvaccinatef immigrants which 
means the populstion of unvaccinated is constantly changing and growing


Sent from my Verizon Wireless 4G LTE smartphone


 Original message 
From: Perry Dane 
Date:02/01/2015 6:43 PM (GMT-05:00)
To: Law & Religion issues for Law Academics 
Subject: Re: Vaccine objectors


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 
mailto: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
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Re: Vaccine objectors

[Perry Dane]

 

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  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 [1] 
>> 
>> 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



Links:
--
[1] http://www.ncbi.nlm.nih.gov/pubmed/17032989
[2]
mailto:d...@crab.rutgers.edu
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Re: Vaccine objectors

[Levinson, Sanford V]

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 
mailto: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

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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.

Re: Vaccine objectors

[Perry Dane]

 

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 
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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.