Does vaccine refusal reflect a genuine religious belief or is it merely a personal preference? If it is the former, does it merit protection under the First Amendment?
Last week a federal judge denied a preliminary injunction against the University of Colorado School of Medicine’s COVID-19 vaccine mandate. UCHealth established an Oct. 1 deadline for personnel to be vaccinated and fired 119 employees who did not comply. A Catholic doctor and a Buddhist medical student are challenging the requirement in court. Neither is vaccinated. Both claim to object to the COVID-19 vaccine because of their religious beliefs.
They are refusing the vaccine because abortion-derived fetal cell lines were used in their development. Pfizer and Moderna tested their vaccines on such cells while Johnson and Johnson uses them in the production of its vaccine. Cell lines are originally derived from living tissue and can be grown indefinitely in the lab through cellular replication. The cell lines used by the first two companies are descended from kidney cells taken from a baby aborted in 1973 and the latter company uses cells removed from another’s eyes in 1985.
Refusing medical interventions connected to human death and suffering is commendable but more challenging than one might think given its ubiquity. The rubella, chickenpox, hepatitis A, and Imovax rabies vaccines all involve the exploitation of fetal cell lines in their production. Cell lines were also used in the research and development of common medicines like ibuprofen, Tums, Zoloft, Prilosec, Benadryl, and Remdesivir, a COVID treatment. These vaccines and medications relieve human suffering and save lives. Should they be avoided even when no alternative is available?
What about medical instruments that have an ugly history? The inventor of the speculum developed the instrument through trial and error as he operated on slave women without anesthesia. Once perfected, he used the instrument during pelvic operations on white women but they got anesthesia. Should a conscientious doctor or patient forgo this device even though there is no alternative?
What about ill-gained medical knowledge? Should findings from the Tuskegee Syphilis Study or Nazi hypothermia experiments be permanently erased because of the cruelty of researchers and the misery and death of their patients? What about medical knowledge gained before the passage of patient consent laws?
If a doctor or patient eschews only one medical intervention tainted by human suffering, in this case the COVID vaccine, but shows no discomfort with other such medical treatments, are they merely being inconsistent in the application of a genuine belief or are they cloaking their refusal to get the shot for other reasons in the garb of religious dissent? Frankly, it appears to be the latter.
If it is the former — an inconsistently applied but genuine belief — are the plaintiffs protected by the First Amendment? The U.S. Constitution forbids the federal government (and state governments through incorporation by the 14th Amendment) from prohibiting the free exercise of religion. In practice this means Jews and Muslims get access to kosher and halal meals in correctional facilities, a Catholic foster care agency can choose to work with only heterosexual couples, Mennonites can be conscientious objectors in times of war, atheist students do not have to say “under God” when reciting the Pledge of Allegiance, and Jehovah Witnesses don’t have to say the Pledge at all. Although in this glorious land of free speech no one can be compelled to say the pledge for any reason.
We have the right to believe in and act upon the tenants of our faith or lack thereof. But no right is without limit. A person is absolutely free to believe anything but is not always free to act on that belief if that practice violates the public’s health and safety. In the 1879 Reynolds v. United States case, the Court upheld a bigamy conviction even though the Mormon man sincerely believed he should marry multiple women. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” wrote the majority.
UCHealth has a compelling reason to require medical personnel to be vaccinated against COVID-19 because vaccinated people are less likely to contract COVID, less likely to spread the disease if infected, or less likely to become hospitalized themselves. For these reasons, they are less likely to spread the virus to medically sensitive patients — the preemie who cannot be vaccinated or the cancer patient who though vaccinated is still at risk of a life-threatening infection.
Enabling a staff member to take a religious exemption could cost a medically vulnerable person her life.
In the end, the courts will decide.
Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer
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