It seems that COVID-19 is, finally and hopefully, waning from the American scene. Before we face another wave or a new threat, it might make sense to review some of the legal fallout, notably the interplay between freedom of religion, the obligation of the state to protect public health, and the prevalence of changing attitudes championing solidarity versus those advocating autonomy.
Exactly two years ago, the World Health Organization declared COVID-19 a pandemic. At the time, 118,000 cases and 4,000 deaths had been reported. Today, over 450 million people have been diagnosed, and over six million have died from the virus. As we turn to other pressing matters, we should pause and consider the effects of legal and policy implications on COVID management.
Some countries are compelling COVID vaccination, e.g., Austria and France (at least for health care workers). Greece is fining people over 60 who refuse to get vaccinated; Italy has similar requirements for people over 50. In Hungary, vaccination is required for health workers, schoolteachers, and people working in state institutions. Similarly, COVID-19 vaccines will soon be mandatory for England's health and social care workers.
Other countries, notably those in Scandinavia, favor individualized choice. Israel manifests a hybrid philosophy. While Israel does not require pre-school vaccinations, free access to societal experiences is restricted in Israel without proof of COVID vaccination.
In the US, one-quarter of the states have mandated vaccination for certain occupations. By comparison, half the states have enacted legislation precluding public health regulations regarding COVID. As I’ve written, here Kansas has taken the anti-vax sentiment further, broadening religious exemptions for all vaccines, including those required for pre-school attendance implemented nationally since 1977. They are now talking about removing mandatory pre-school vaccinations entirely.
By comparison, six states have now eviscerated all non-medical exemptions, virtually compelling pre-school vaccination except for provable medical reasons. (It should be noted that vaccine mandates involve civil fines or monetary penalties. Coerced or forcibly vaccinating people is not a consideration, although it was unofficially and fairly widely used in the US in the late 1800s for smallpox .
These diverse reactions to mandatory vaccines appear to turn on:
- Local experience with COVID and other infectious diseases
- Cultural differences
- Historical experience
- Political inclinations of the majority party (and voters)
How Societal Views Have Changed
According to a presentation at the 14th World Conference of Bioethics, Medical Ethics and Health Law, historically, the search for the common good and preservation of the species were guiding principles of governmental policy. Later, these sentiments were augmented by concepts of solidarity. These principles likely underscored the Supreme Court’s 1904 decision of Jacobson v. Massachusetts allowing state-compelled vaccination of smallpox vaccines notwithstanding the plaintiff’s contention that compelled vaccination violated his personal liberties.
In the decades following Jacobson, mass societal adherence to public health recommendations guided American behavior, exemplified by mass voluntary uptake of smallpox vaccines in 1947 and polio vaccination in the 1960s. Whether this societal acquiescence to medical recommendations was motivated by fear of disease, respect for the medical establishment, a sense of public duty, or a combination is unclear. This voluntary mass compliance obviated consideration of mandating vaccines - until the arrival of the anti-vax industry heralded by Andrew Wakefield in 1998 along with the emergence of a new focus on autonomy and individual rights – and the resulting re-emergence of once-eradicated diseases, such as measles.
Today, the notion of autonomy and individual rights are the driving force forging policy in many jurisdictions, now augmented by the championing of “religious rights.” Indeed, in a recent case concerning lockdown, Roman Catholic Diocese v. Cuomo, the newly minted Conservative majority of the Supreme Court (occasioned by the substitution of Justice Amy Coney Barrett for the deceased Ruth Bader Ginsburg) opined that public health recommendations cannot override religious rights – which the Court considered equally as important as activities specified as “essential” by the Governor.
However, the Supreme Court’s veneration for religious rights does not seem to extend to vaccines. In Does v. Mills, the 1st Circuit refused to halt enforcement of a Maine law requiring COVID vaccination for health care workers notwithstanding religious objection. The Supreme Court effectively affirmed the decision.
Shockingly, at least to me, Justice Barrett, the swing vote in the Roman Catholic Church v. Cuomo, subscribed to the Does v. Mills decision rejecting religious exemptions for required COVID vaccination in health workers. The only sense I can make of her decision (which admittedly is couched in procedural terms) is that the objection to vaccination by the Roman Catholic plaintiff was based on the claim that fetal cell lines using aborted cells were involved in testing and developing the mRNA vaccines and producing the J&J vaccines.
That objection would not resound with Justice Barrett, a devout Catholic, when the Pope specifically approved COVID vaccine use, even if derived from aborted fetuses. As reported by Vatican News:
“The Vatican says that it's "morally acceptable" to receive a vaccination for COVID-19, even if the vaccine's research or production involved using cell lines derived from aborted fetuses, given the "grave danger" of the pandemic."
The Vatican position extends beyond COVID vaccines:
“All vaccinations recognized as clinically safe and effective can be used in good conscience with the certain knowledge that the use of such vaccines does not constitute formal cooperation with the abortion from which the cells used in production of the vaccines derive.”
From a social perspective, however, White evangelical Protestants frequently differ from their Church’s teaching. This is “the only religious group that didn't reach a majority when asked … if they believe they should get vaccinated because it "helps protect everyone… and is a way to live out the religious principle of loving my neighbors….”
The position was echoed by Mississippi Gov. Tate Reeves, again manifesting the mangling and mixing of politics and religion in policy formation, also seen in the Roman Catholic Church case where the Christian-conservative majority refused to countenance public health measures restricting access to mass – even in heavily infected areas where other activities they deemed less important were allowed.
‘The only Christian denominations who cite a theological reason for opposing vaccines are the Dutch Reformed Church and Church of Christ, Scientist….”
according to Vanderbilt University Medical Center research.
This brings us back to the Kansas legislation and forecasted plans. Given the lack of recognized religions with stated objections to vaccinations, the Kansas decision more accurately reflects political misappropriation of religion rather than religious doctrine itself. Interestingly, Kansas claims a White Evangelical Protestant religious majority population of 31%, signaling the political bias of the move.
Consistency of Results or Cacophony of Decisions?
The variation in jurisdictional response when religion transects public health decision-making and the comingling of religion and policy-making is not an anomaly- domestically and internationally. However, its significance is far more critical when it comes to infectious disease, directly impacting disease incidence. And disease in one area of the world quickly becomes a seed for epidemics someplace else.
Variability in state resolution of addressing the circumnavigating navigating epidemic presents both options and problems. Thus, COVID restrictions in one state can be avoided by traveling to a neighboring locale. Mandatory vaccination of children in the six states eviscerating religious objections can be circumvented by moving to another state or home-schooling. Some say that national requirements are required to address discrepancies. Others say local (and state) determinations are necessary to address local conditions. The latter makes more sense if the decision is predicated on scientific and public-health rubrics.
But serious considerations should be given when states remove vaccine requirements that facilitate transportation of epidemic-prone diseases across state lines. The implications of such laws seem to have been ignored by Kansas legislators.
Have they considered whether neighboring states would ban entry to Kansans when vaccine requirements are removed or attenuated, effectively quarantining them? Nothing prevents a state from imposing quarantine regulations restricting access to Kansans (or any other state). Rhode Island’s Gov. Gina Raimondo threatened to do just this New Yorkers during COVID’s initial heyday. And this is not a new response. During cholera and yellow fever epidemics of the late 1800s, involuntary quarantine across state lines were held constitutional.
The implications of divergent directives
What is happening reflects an outcome-determinative orientation: What the power-elite prefers will drive the decision, regardless of scientific basis or health-related evidence. The basis of their decision is irrelevant. Thus, if the autonomy of their constituents is the priority of their voters, governors will eschew masks and mandates; if attendance at mass is a concern, jurists will support the pre-eminence of religion; if vaccination is important and does not violate the jurist’s personal beliefs, religious objections will be dismissed. When personal choice becomes a driving force– consideration of the profound impact of this decision on society is avoided.
The implications are dire.
Globally, the variation in vaccine uptake is significant. When citizens remain at home or adhere to worldwide travel restrictions, the impact of the unvaccinated is contained. But reliance on that assumption is folly. Consider Ukraine, which boasts one of the lowest COVID vaccination rates globally (35%). Who knows what impact that might have in resurrecting increasingly dormant COVID rates in those countries accepting refugees? And this is not a theoretical concern. The measles pandemic of 2018-2019 was largely seeded by Ukrainian cases, manifesting their low vaccine rates generally.
Another example: There has always been anti-vax sentiment in Israel. But following the emergence of the anti-vax industry in Israel, my research reveals that the prevalence of anti-vaxxers more than doubled  – along with the epidemics of infectious disease and pockets of COVID vaccine refusal in these enclaves. Ensuing maternal sentiment rejecting vaccination instigated a massive measles epidemic in Israel in 2018-2019, sickening 4300 and claiming three lives- a real harm not just to their children -- but to society at large.
Last week two cases of polio were reported in Israel, along with scores more exposed youth and a fear of more cases arising. The disease has not been seen in the country in more than 30 years.
That’s what happens when the anti-vax industry seizes the public imagination, and people don’t get vaccinated. Let’s hope it doesn’t happen in Kansas.
 Pox – An American History by Michael Willrich
 Barbara Pfeffer Billauer, Muzzling Anti-Vaxxer FEAR Speech: Overcoming Free Speech Obstacles with Compelled Speech University of Miami Law Review
Barbara Pfeffer Billauer, Addressing The Demonstrable Effects of Anti-Vax FEAR* Speech With Mandated Public- Health Education and Government Speech (*False, Endangering and Reckless) Health Matrix: Journal of Law-Medicine (forthcoming).