Bioethics Forum Essay

What Warrants Religious Exemption from Covid Vaccine Mandates?

Anecdotally and from news reports, it seems that religion has been undergoing a revival in recent weeks. Faced with mandatory vaccination against Covid-19, students and employees, notoriously including health care workers, have appealed to religion as grounds for exemption.

Some states, like New York, are having none of it. New York announced, in mid-August, that it would require Covid-19 vaccination for workers at hospitals, nursing homes, and long-term care facilities, with limited exemptions on medical and religious grounds. Less than two weeks later, the state said it would permit only medical exemptions. In mid-September, 17 health care workers represented by the Thomas More Society sued the state for various alleged infractions. A U.S. district court granted a temporary restraining order, extending to October 12, prohibiting enforcement of the mandate against health care workers who have sought a religious exemption. To that end, the Thomas More Society’s website provides four model letters for people whose sincerely held religious belief compels them, in conscience, to reject the available Covid-19 vaccines.

This latest conscience war within our culture wars presents a minefield of legal and philosophical complexities for states and health care systems that want to take a hard line against religious exemptions, whether by excluding them altogether or by scrutinizing requests for them closely. Excluding religious exemptions might be defended under the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, holding that laws incidentally burdening free exercise of religion need only have a rational basis to be justified, as long as they are not discriminatory in intent and are applicable generally. Smith, however, seems increasingly shaky: in June, the U.S. Supreme Court, in Fulton v. the City of Philadelphia, declined to overrule it, but resorted to the out that “[a] law is not generally applicable if it ‘invite[s]’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions’”—which the New York emergency regulations do. New York likely will need to show that excluding religious exemptions serves, in the context of the pandemic, a “compelling governmental interest.”

If the goal is to scrutinize requests for religious exemption rather than exclude them, the most relevant legal precedent may be the U.S. Third Circuit Court of Appeals’ 2017 decision in Fallon v. Mercy Catholic Medical Center. Fallon, who was a psychiatric crisis intake worker, sought a religious exemption from his employer’s requirement that he be vaccinated against the flu. Mercy Catholic rejected his request when he was unable to provide a letter from a clergyperson in his support. After his employment was terminated, Fallon sued Mercy Catholic for religious discrimination in violation of Title VII, which makes it unlawful to discriminate against employees because of their religious belief.

The Third Circuit’s decision focuses on whether Fallon’s opposition to vaccination is properly understood as a religious belief and cites two Vietnam-era Supreme Court decisions, Seeger v. United States (1965) and Welsh v. United States (1970). What really guides the Third Circuit’s reasoning, however, is its own earlier decision in Africa v. Commonwealth of Pennsylvania(1981), which provides what the Third Circuit calls a “modern definition of religion” in line with the Supreme Court’s jurisprudence:

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs [e.g., services, ceremonies, holidays, proselytizing, clergy].

According to the Third Circuit, Fallon’s opposition to vaccination failed to qualify as “religious” on all three counts. First, “he simply worries about the health effects of the flu vaccine, [and] disbelieves the scientifically accepted view that it is harmless to most people.” Second, his belief that he should not harm his body by getting vaccinated against the flu is an “isolated moral teaching,” not part of a comprehensive system of beliefs. Third, his belief is not made manifest in any “signs” such as services, ceremonies, and the like.

One way to react to this decision is to wonder why Fallon didn’t have better counsel; the likes of the Thomas More Society apparently weren’t available. A second reaction is to question whether Fallon is in fact in line with Seeger and Welsh. In Seeger, the Court proposed that a belief counts as “religious” when it “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for . . . exemption” from military service under the Universal Military Training and Service Act of 1948. Five years later, in Welsh, in which the conscientious objector initially denied that his beliefs could be characterized as “religious” and only later allowed that they could be understood as “religious in the ethical sense of the word,” the Court revised its interpretation of the statute to focus on whether his belief was “held with the strength of traditional religious convictions,” thereby indicating that it occupied “in the life of that individual ‘a place parallel to that filled by . . . God’ in traditionally religious persons.”

There are now so many religions in nations like the United States that it is increasingly hard to say what  counts as religion. In addition, there are so many people professing no religion that it appears unfair for the law to accommodate religious beliefs in particular. Egalitarians may seek to solve this problem in two ways: either by denying that religious citizens should enjoy exemptions from generally applicable laws, or by denying that exemptions should be exclusive to religious citizens. In Seeger and Welsh, the Court took the latter course. By contrast, the Third Circuit’s Africa and Fallon decisions appear to retreat from this trajectory. Under these decisions, to qualify for accommodation, a belief must conform to a quite traditional mold.

Political theorists like Cécile Laborde have criticized “the unjustifiable primacy of freedom of religion in traditional liberal thought” and advocated for understanding religious freedom as “only one instantiation of a more basic right—a right to personal freedom or ethical independence” (though within the limits of a fair framework of cooperation). The Equal Employment Opportunity Commission takes a similar line in its interpretation of Title VII, defining “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The EEOC also stipulates that “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief.” In other words, that Pope Francis sees vaccination as morally permissible for Roman Catholics even though vaccines were tested or developed using cell lines derived from aborted fetuses has no bearing on whether a Catholic may have a protected religious belief against vaccination because of the vaccines’ remote connection to abortion.

The question of sincerity is crucial. Can health care workers who object to the available Covid-19 vaccines because of the connection to abortion—the grounds in each of the St. Thomas More Society’s model letters—show that their belief is not merely cover for an unsubstantiated health concern or ideological commitment, but instead is consistent with their other choices and practices? After all, the Covid-19 vaccines are not unique in making use of cell lines derived from aborted fetuses; so, too, do vaccines for varicella (chickenpox), rubella, and hepatitis A, among others. Given the high stakes of the pandemic, it is surely warranted for health care systems to require applicants for a religious exemption because of the connection to abortion to attest that they have refused or would refuse all those vaccines. The Conway Regional Health System in Arkansas made national news by requiring applicants for a religious exemption because of the connection with abortion to attest that they would not use medications that relied on fetal cell lines during research and development, including Tylenol, Pepto-Bismol, Tums, Motrin, Benadryl, Sudafed, Preparation H, Claritin, Prilosec, and Zoloft. That requirement also is warranted.

There are strong moral grounds for holding that we should be willing to go out of our way to accommodate others’ claims of conscience. But those grounds collapse if it turns out that the people seeking accommodation are not, in fact, being conscientious.

Bernard Prusak, PhD (@bgprusak), is a professor of philosophy and director of the McGowan Center for Ethics and Social Responsibility at King’s College in Wilkes-Barre, Pa.