By Bailey Kennedy, J.D.
Americans have been able to feel a little more hopeful recently as vaccines begin to roll out across the country. But in some jurisdictions, officials have been surprised by how many people have refused to be vaccinated. As of the beginning of February 2021, about 24% of adults indicated that they would probably or definitely not allow themselves to be vaccinated. While we might hope that these numbers will go down as public health officials and others conduct outreach efforts in communities where vaccine refusal is particularly high, there will probably always be some percentage of people who will refuse to be vaccinated.
This poses a problem. In order for the pandemic to finally, mercifully, draw to a close, enough people need to be vaccinated that the coronavirus is unable to find new hosts and ceases to circulate. While we don’t know exactly how many people must be vaccinated for this to happen, herd immunity might be somewhere between 70-90% of all people. Some people will truly be unable to be vaccinated for health reasons, making it even more essential that all those who are physically able to receive the vaccine do so.
This blog post will focus on one specific subset of people who are reluctant to get vaccinated: people who refuse vaccines for religious or ethical reasons. I’ll first briefly explore the possibilities of a coronavirus vaccine mandate before moving to an exploration of concerns surrounding religious exemptions and the government’s approach to handling religious exemptions to vaccine mandates.
Coronavirus vaccine mandates
Some have suggested that vaccines should become mandatory for persons in certain environments. Vaccine requirements are quite common for school children, but much rarer for adults. As of now, the Covid-19 vaccines are not approved for use in children under age 16, so it’s unlikely we will see mandatory vaccination emerge in schools in the immediate future.
Sixteen states require at least some vaccinations for adults enrolled in higher education institutions. Utilizing higher education as a pathway to vaccination among some populations is therefore a real possibility, but it would leave the vast majority of adults uncovered by a vaccine mandate. Medical institutions are another arena in which there is some precedent for requiring vaccination; these institutions and other private employers may mandate vaccines for their employees. Coronavirus vaccine mandates also have yet to command a majority of support among Americans, but the tide may shift as the rate of vaccination continues to increase.
However, should a vaccine mandate be implemented, there’s one thing we can predict: at least some people will likely object to the vaccine on religious grounds. The impact of these objections on US vaccination policy will depend on the extent of exemptions and the government’s willingness to take people at their word when they make claims that vaccination violates their religious beliefs.
Religious objections to vaccines
The majority of religious faiths practiced in the United States do not appear to object to vaccinations. Others, including the Church of Christ, Scientist, place an emphasis on healing through prayer, but do not expressly prohibit vaccination. Along with the Church of Christ, Scientist (commonly referred to as Christian Scientists), the Dutch Reformed Church is the only other church in the United States known to discourage vaccination—and that opinion is not uniform in the Dutch Reform Church, with some members claiming that vaccines are a gift from God. Both churches are quite small: there may be as few as 50,000 Christian Scientists remaining in the United States and 120,228 confirmed members of the Dutch Reformed Church. In other faiths, there is some dispute about whether vaccines are permissible or forbidden based on components that are used in the development of vaccines. Some Catholic bishops have discouraged their flocks from receiving the Johnson & Johnson vaccine because of concerns that cells from aborted fetuses were used in vaccine production.
Increasingly, Americans are choosing to attend non-denominational churches rather than a church affiliated with a larger religious body. Non-denominational churches appear to be particularly popular with relatively young Americans. Perhaps because of their relative youth, members of non-denominational churches are particularly likely to have school-aged children. This means that the religious beliefs of non-denominational church members regarding vaccination are particularly important. Although major religious faiths may encourage vaccination, if individual leaders of non-denominational churches discourage their members from being vaccinated, it may have a profound effect on wider societal acceptance of vaccination. But a person need not be a member of a church at all in order to have a sincerely held religious belief. Many people experience faith and a relationship with a higher power outside of traditional—or even non-traditional—religious institutions. These beliefs are deserving of the same respect that more traditional religious beliefs are already entitled to.
Religious based exemptions to vaccine requirements
While almost all states have historically permitted parents to exempt their children from vaccine requirements based on non-medical reasons, some argue that the majority of those parents object not on religious grounds but rather for personal reasons. While parents may claim that their objections are based on religion, some have claimed that parents have used religion as an excuse to avoid vaccinating their children while truly being motivated by other fears. Just before the coronavirus outbreak, all but five states permitted non-medical exemptions to vaccination requirements. In instances where it is possible to prove that an exemption claimed for a religious belief is not based in any religious or ethical concerns, it is possible that individuals will still be subject to a mandatory vaccination.
However, as seen above, the definition of what constitutes a religious belief for these purposes is quite broad. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidelines to employers concerned about what to do if they wanted to mandate vaccinations but were met with employees who refused on religious grounds.
Under Title VII of the Civil Rights Act, if employers are aware that an employee’s “sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination,” the employer must make reasonable accommodations to allow the employee to keep their job without vaccination. One crucial note here is that the belief must be “sincerely held”; employees cannot hide behind a religious or ethical shield if those are not their true reasons for refusing a vaccine. Still, it remains to be seen how much employers will be willing to look behind the stated reasons for an employee’s objection; only if “an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief [would] the employer would be justified in requesting additional supporting information.”
Is there a need to worry?
Though we don’t know for sure, there likely won’t be many Americans who object to the vaccine on religious grounds; the majority of objectors have other concerns. However, where individuals do object to receiving the vaccine on religious grounds, employers are required to respect their beliefs. And really, that’s the way it should be. Though it’s important for vaccination to be widespread, forcing people to violate their sincere convictions sits uneasily with the United States’ long tradition of and Constitutional regard for religious freedom. That’s a value we can still maintain while protecting public health.
This article was originally published on the COVID-19 and the Law blog.
Bailey Kennedy graduated from Harvard Law School in May 2022.
