Religion

N.Y. Court Upholds Repeal of Religious Exemption to Vaccination Requirement

Seems quite right to me.

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From F.F. v. State, decided yesterday by New York's intermediate appellate court (third department), in an opinion by Justice Stan Pritzker:

Public Health Law § 2164 requires children from the ages of two months to 18 years to be immunized from certain diseases, including measles, in order to attend any public or private school or child care facility. Initially, the school vaccination law contained two exemptions to this requirement: a medical exemption requiring a physician's certification that a certain vaccination may be detrimental to a child's health (hereinafter the medical exemption) and a non-medical exemption that required a statement by the parent or guardian indicating that he or she objected to vaccination on religious grounds ….

In 2000, public health officials declared that measles had been eliminated from the United States. However, after seven cases of measles were reported in Rockland County in the fall of 2018, a nationwide measles outbreak occurred that was largely concentrated in communities in Brooklyn and Rockland County with "precipitously low immunization rates."

That October, following state regulations, both the State and County Commissioners of Health advised certain schools with reported cases of measles to exclude children who had not been vaccinated pursuant to the religious exemption. In January 2019, companion bills were introduced in the Senate and Assembly that proposed to repeal the religious exemption. On June 13, 2019, the Legislature voted to adopt the bills (hereinafter the repeal), which went into effect immediately ….

Plaintiffs raise a number of constitutional challenges, but primarily contend that the complaint alleged a viable cause of action that the repeal was motivated by active hostility towards religion and thus violated the Free Exercise Clause…. [P]laintiffs allege three reasons in their complaint why the repeal was not a [constitutionally valid] neutral law: first, that the Legislature failed to act during the height of the measles outbreak, asserting that the timing of the legislation undermines the public health concerns it relied upon in adopting the repeal; second, that, despite multiple requests from plaintiffs and others in the six months between the proposal of the bills and their adoption, no public hearings were held on the matter; and third, that the alleged religious animus is reflected in certain statements made by some of the legislators.

First, we do not find that the timing of the repeal reveals political or ideological motivation; rather, the record reflects that the repeal simply worked its way through the basic legislative process and was motivated by a prescient public health concern…. [B]ills, even exigent ones, take time to pass.

Second, we find plaintiffs' claims regarding the Legislature's failure to hold hearings to be equally unavailing, given the Legislature's reliance upon data from the Centers for Disease Control and Prevention and other public health officials, including the amici, which represent various medical experts in the state and have confirmed that the data contemplated by the Legislature was scientifically accurate. Further, the legislative history reveals a spirited floor debate among the legislators, particularly in the Assembly, where many representatives professed both their personal concerns as well as concerns of their constituents regarding the repeal's impact on religion. The ultimate floor vote reflected the many different views among the lawmakers. Finally, the extensive bill jacket reveals that several hundred letters were received, mostly in opposition to the repeal, which address religious issues.

Third, we reject plaintiffs' claims that, based upon statements by some of the legislators, the repeal was motivated by religious animus. Significantly, the 11 statements alleged to suggest religious hostility were attributed to only five of the over 200 legislators in office at any given time. Although a suggestion of animosity towards religion is sufficient to state a cause of action under the Free Exercise Clause, that the comments here were made by less than three percent of the Legislature does not, under these circumstances, taint the actions of the whole.

More importantly, many of the statements do not demonstrate religious animus, as plaintiffs suggest, but instead display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based upon non-religious beliefs. Indeed, some legislators were concerned that parents may be hiring consultants to evade the vaccination requirement—suggesting that parents attempted to falsify religious beliefs to receive exempt status. The repeal relieves public school officials from the challenge of distinguishing sincere expressions of religious beliefs from those that may be fabricated.

In fact, one of the quotes cited by plaintiffs refers to so-called "anti-vaxxers," implying a secular, rather than religious, movement resistant to vaccination. Another comment refers not to religion at all, but to "ideological beliefs." One of the comments goes so far as to explicitly state that "[r]eligion cannot be involved here," explaining that the priority must be to "govern by science," not only with the goal of promoting public health, but also to "lower the stigma that happens" against religious communities in the aftermath of viral outbreaks.

To be sure, there were certain insensitive comments that could be construed as demonstrating religious animus. However, by and large, these comments highlight the tension between public health and socio-religious beliefs—a unique intersection of compelling personal liberties that was to be balanced against the backdrop of a measles outbreak that could be repeated….

Although, at first blush, the repeal of a religious exemption naturally seems to target the First Amendment, such is not the case here. In Roman Catholic Diocese of Brooklyn v Cuomo (2020), the Supreme Court of the United States determined that an executive order that imposed restrictions on attendance at religious services in certain areas in response to the COVID-19 pandemic would likely not be considered neutral and of general applicability and thus must satisfy strict scrutiny. As noted by Justice Kavanaugh in a concurring opinion, the regulation created a favored class of businesses and it thus needed to justify why houses of worship were excluded from that favored class.

By contrast, here, the religious exemption previously created a benefit to the covered class, and now the elimination of the exemption subjects those in the previously covered class to vaccine rules that are generally applicable to the public. In fact, the sole purpose of the repeal is to make the vaccine requirement generally applicable to the public at large in order to achieve herd immunity….

The New York Constitution has been read by New York's high court as sometimes requiring exemptions even from religion-neutral laws; but rather than requiring "strict scrutiny" of laws that incidentally burden religion, as many states do, the New York constitution only offers a balancing test:

"[W]hen the [s]tate imposes 'an incidental burden on the right to free exercise of religion' [a court] must consider the interest advanced by the legislation that imposes the burden, and that 'the respective interests must be balanced to determine whether the incidental burdening is justified.'" "[S]ubstantial deference is due the Legislature, and … the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom." Given the Legislature's substantial interest in protecting the public health, plaintiffs fall short of establishing such a claim.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

NEXT: Is Accurately Repeating a Defamatory Allegation Itself Defamatory?

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  1. Seems pretty clear under Jacobson.

    Unless your name is Josh Blackman, in which Jacobson was somehow repealed by a solo concurrence on a shadow docket case for reasons.

    1. Jacobson was a fine, not a mandate.

      1. Jacobson was a fine for not getting vaccinated. New York prohibits enrollment in school or day care without vaccination but does not otherwise require children to be vaccinated.

        1. The application of the truancy laws should be interesting…

          1. Private schools, home schooling, tutors, lots of choices.

            1. “in order to attend any public or private school”[emphasis added]

              And some states are getting rather obnoxious in attempts to restrict homeschooling. The teacher’s unions consider it a lost of revenue to them, in that more kids in their schools would mean more money for them — and the teacher’s unions run K-12….

            2. “in order to attend any public or private school”[emphasis added]

              And some states are getting rather obnoxious in attempts to restrict homeschooling. The teacher’s unions consider it a lost of revenue to them, in that more kids in their schools would mean more money for them — and the teacher’s unions run K-12….

              Remember that it is the exemption from the truancy laws that is relevant — nothing prevents you from sending your child to BOTH a public school and homeschooling the child outside of school hours.

              1. Truancy laws are largely bogus, an excuse to hassle kids who aren’t even yet allowed to vote on things like legislators who write truancy laws and ordinances.
                Now that we have widespread asynchronous remote education, perhaps the hollow truancy laws that require students to be “in school” whether or not they have a school to be in will be revisited.

                1. Kamala Harris has a solution to that, throw the parents in jail for their children’s truancy, they can vote.

      2. This law also isn’t a mandate, you illiterate buffoon.

    2. It might be the right result but Jacobson doesn’t get you to it.

  2. No mainstream religion bans vaccination, although minorities within those religions do. As a judge you’re not supposed to say that. But there it is hiding in the corner trying to look like a coatrack.

    1. “No mainstream religion bans vaccination”

      The problem with that is that religion is a personal thing and mainstream religions lack the power to control individual consciences. For example, the Roman Catholic Church bans both birth control and abortion — yet most American Catholics use birth control and many are OK with abortion.

      What you define as “minorities within religions” would rapidly become independent denominations if their different belief(s) were not tolerated.

      1. No mainstream religion bans vaccination

        I can’t get to the relevance of your post. The constitution restricts the govt from preventing a person’s free exercise of religion. Public prominence is not mentioned.

        1. The point is this: There is a substantial subset of persons who are willing to say “my religion forbids this thing I don’t approve of” if just not approving of something isn’t enough to get them out of it, whatever “it” is.
          The sun-god demands that I sacrifice my enemies at dawn by cutting out their heart and pouring their life’s blood into the streets. How dare you tell me that’s prohibited, because it might be a threat of spreading blood-borne pathogens? I may have to smite thee.

          1. You would lose your case because proscription against murder is a neutral and generally-applicable law, not because your religious belief is out of the mainstream. On the other hand, you can lose if your lying about your religious belief.

            1. Read what I wrote, without supplying your own input.

  3. Aladdin’s Carpet: The majority in Roman Catholic Diocese of Brooklyn applied Lukumi Babalu, not Jacobson, to public health laws that discriminated against religion. Likewise, here Jacobson wouldn’t dispose of the challengers’ main argument, which is that the repeal of the exemption discriminatorily targeted religion.

    That’s why the New York court here didn’t rely on Jacobson, but instead explained why the law was religion-neutral. Once that was found to be so, the law was consistent with the First Amendment without need to resort to Jacobson (and was consistent with the New York Constitution based on New York state precedents).

    1. Can’t a religiously neutral law still discriminate?

      For example, can a prison require Jewish inmates (who keep Kosher) to eat pork? It’s what they are requiring everyone else to eat — so it’s “religiously neutral” because everyone gets it.

      Part of it is political, but it is incredibly expensive to feed the prisoners at GITMO their religiously-mandated foods prepared in the religiously-mandated ways — all told, we’re spending something like $9M-$13M per prisoner per year down there.

      Could we instead serve them standard pork & beef hot dogs and say “eat these or starve”?

      1. Constitutionally, yes.

        There are statutes preventing that though. RLUPA for prisons.

  4. What the left fails to understand is that this will encourage homeschooling as the antivaxers aren’t happy with the public schools in general.

    The interesting challenge to this will be by a religious school which wishes to admit unvaccinated children on the basis of a religious teaching. The Jehovah’s Witnesses come to immediate mind and they have a long history of winning SCOTUS cases.

    1. The ‘left’ are worried about getting people vaccinated during a pandemic. Antivaxxers’ problems are for antivaxxers to worry about.

      1. Sane people understand the concept of herd immunity. Fascist leftist just want to control other people — and there is a distinction.

        1. Really? Because there’s been some reckless horseshit talked about herd immunity by the right. Pushing an anti-vaxx line is also about controlling people, of course.

          1. It’s about controlling people. Being not dead of disease is a form of control, right?

        2. Dr. Ed 2 : “Sane people understand the concept of herd immunity. Fascist leftist….(gibberish)”

          Does anyone understand what Ed is saying here? We can’t ignore the anti-vaxers (per Ed) or risk herd immunity. We can compel the anti-vaxers (per Ed), because that’s just fascist leftists looking to control people,

          So aside from the fact Ed doesn’t have the slightest clue what “fascist” means, what can we derive from his comment? Maybe he’s suggesting we should use soft words and gentle persuasion to convince antivaxxers of their error. Given the unlikelihood that will have the slightest effect on a group so impervious to evidence – and given that Ed himself concedes the stakes – I wonder he doesn’t call for more stringent measures, not less.

          I’m guessing the reason is this : Ed sees antivaxxers as kin to his own Right-wing (though the group straddles ideological lines in its determination to be braindead irresponsible). And nobody coddles, cultivates & nurtures STUPID in their ranks like today’s Right.

          1. “Does anyone understand what Ed is saying here?”

            Most of what he has to say is “I am extremely frustrated that reality refuses to conform to my preferred ideas about how it should work”.

      2. All Americans are concerned with much larger, long-term problems, such as governments with cavelier attitudes to blow away religious behavior, which, historically, accompany claims to emergency powers.

    2. “What the left fails to understand is that this will encourage homeschooling as the antivaxers aren’t happy with the public schools in general.”

      What Dr. Ed fails to understand is who gives a fuck if some idiots want to saddle their children with poor education?

      So what if they can’t understand simple things like germ theory of disease?
      Oh……

    3. “The interesting challenge to this will be by a religious school which wishes to admit unvaccinated children on the basis of a religious teaching.”

      Blessed are the sick, for they shall inherit the germ.

  5. can violate bodily autonomy that is THE MOST IMPORTANT THING IN THE WORLD (but only when it comes to whining about not having a full buffet of abortion services during the height of the pandemic), to handle the challenge of disease. Can’t turn off sacred spigot of illegal immigration in any way. It would be nice if the things that mattered stayed consistent for once.

    1. Where is the right to bodily autonomy in the text of the Constitution? (I think abortion rights are not rooted in that btw, it’s a sphere of privacy about personal decisions rooted in childreading going back to Pierce, Meyer, etc.,).

      1. But aren’t decisions about whether to vaccinate your child or not a personal decision about childrearing as well?

        1. They are, but the practical problem is that other people are impacted too. The child, if he catches the measles and dies or goes blind. The rest of society if herd immunity doesn’t happen.

          And that is the issue for me: How high are the stakes. I support total privacy and bodily autonomy and childrearing decisions right up until the point that someone else is being impacted. And at that point, it becomes a question of how high are the stakes.

          1. It should be up to the local school board whether to require vaccination for school attendance. This is called self-government.

            1. Those at the top won’t get rich with spouses who are miraculous investment geniuses if they don’t get elected, which is accompanied by claims they can do this to the nation as a whole so peeeeze elect me!

              When they aren’t trying to get the previous guy ejected claiming he wants to be a nationwide dictator, that is.

              Never forget:

              “Shut down business nationwide with a national mandate!”

              “No. We will let states do it, and just recommend and coordinate.”

              “Murderer.”

              “I could do it, though, just as I could open it all back up.”

              “What a dictator!”

              1. Ha, well said.

                But you know, yes, mandatory vaccinations are a great profit opportunity. As are “lockdowns.”

                1. It’s a capitalist society, which, apparently, is awesome, so everything, not matter how awful, is an opportunity for profit, which is also awesome, supposedly.

                  1. Yes — see the military industrial complex.

                    But everything is an opportunity for profit in a non-capitalist society, too. It’s more just a question of who is getting the profit and how.

                    “Capitalism” was never a defining value of this country anyway. Not in a sense of aggrandizing centralized government to further profits.

                    Madison: “The means of defence against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”

                    1. “‘Capitalism’ was never a defining value of this country anyway.”

                      Life, liberty, and pursuit of happiness. So it’s implied, because some people can’t be happy unless they have accumulated wealth.

            2. “It should be up to the local school board whether to require vaccination for school attendance. This is called self-government.”

              Or would be, if local school boards were made up of schoolchildren.

          2. “And that is the issue for me: How high are the stakes. I support total privacy and bodily autonomy and childrearing decisions right up until the point that someone else is being impacted. And at that point, it becomes a question of how high are the stakes.”

            Hmm…. There’s a few things there.

            1. “Until someone else is impacted”.
            -That’s actually a pretty low bar. People are impacted by all sorts of things. But you added a qualifier there.

            2. “a question of how high are the stakes.”
            That’s…pretty arbitrary. You, for example, mentioned a single life. “A child goes blind”. So, the question there is, if a utilizing a right might endanger a single, should it be able to be impeded upon en masse? Statistically, let’s say that 1,000 people decide it’s their right not to get their children vaccinated, and as a result a single child will die.

            -Does that mean you have the moral authority to strip their right to privacy and bodily autonomy away for the full 1000 people?

            What if it was 1 life and 10,000 people? 1 life and 100,000 people?

            1. You’re right that people are impacted by all sorts of things, a point often not appreciated by libertarians who fail to appreciate the extent to which things they do affect other people.

              You’re also right that some decisions require arbitrary lines to be drawn, and there will be some cases that will be close to the line on either side of it. Why should the voting age be 18 rather than 17 or 19? Why should a well informed 16 year old not be permitted to vote when a politically illiterate 50 year old can? Because for some things, you just have to draw the line somewhere, and it’s often not feasible to do things case by case. We elect legislatures in part to draw arbitrary lines.

              And the fact is that some people will die no matter what you do, including doing nothing. No solution — including doing nothing — will achieve perfect results.

              So rather than engage in a game of trying to find a precise line that doesn’t exist, I will just say that some cases are obvious, and we have to trust the legislature to decide where the line on closer cases should be drawn.

              And of course, on the other side of the ledger is the question of what actual harm is done when kids are vaccinated against their parents’ wishes. Balance that against the harm done if the kids aren’t vaccinated.

              1. Isn’t violating people’s rights an “actual harm”? Or isn’t it?

                1. The problem is when you have rights in conflict. Doesn’t the child have the right to good medical care? Maybe the child can be allowed to grow up and make his own decision about what religious beliefs to observe.

                2. “Isn’t violating people’s rights an ‘actual harm’? Or isn’t it?”

                  Depends.
                  when we made a law that said felons can no longer possess firearms, were they actually harmed? Or does the Constitution permit people’s rights to be violated, IF there is due process first?

              2. You can kill a baby, but refusing to vaccinate a baby is to far.

                1. Not everyone agrees that it’s a baby.

                  1. Those that agreed were overruled by men in robs. They made it up by reading tea leaves and emanations.

                    1. You’re entitled to your opinion, but don’t claim it’s indubitable fact, or assume that the only people who disagree with you are the men in robes.

                    2. Some people REALLY want government involved in their lives. Like whether or not they can have a medical procedure done involved. The other side is saying “say, maybe the person upon whom the procedure is being performed should do the deciding instead of the government deciding. This is unacceptable to some people.

            2. “1. “Until someone else is impacted”.
              -That’s actually a pretty low bar. People are impacted by all sorts of things. But you added a qualifier there. ”

              If other people aren’t affect by a choice, they aren’t affected by that choice. Which leaves it none of their business. This is the core of my opinion of firearm rights.

            3. What if we said to hell with it and let the worst case scenario play out, leading to 2 or 5 million deaths, but invested $6 trillion in medical science.

              20 years down the road we’d be saving magnitudes more lives.

              How arrogant every generation is.

              1. Or you could NOT let the worst case scenario play out AND invest six trillion in medical science. The investment doesn’t need a blood sacrifice to work.

      2. You’re right, glad you could admit Thomas Jefferson didn’t slip in the right to abortion on the backside of the Constitution.. But still your privacy argument doesn’t make sense either if it only applies to abortion.

        1. You can’t catch abortion from some idiot coughing on you.

          1. Sacred abortion is a meme. Memes are as contagious or even more so than a traditional disease. Abortion has a much higher chance of transmitting death to another person than this COVID that we’re worried about. Somewhere in the neighborhood of near 100% chance. In addition the yearly death toll of abortion dwarfs even the most pessimistic estimates of COVID’s toll by like 25x or something like that. So why isn’t everyone running around like chickens with their head chopped off about this? Why can’t we summon 1/10th of the worldwide energy about something that is 10x as big? Why aren’t we passing any law they can to end this bloodbath, censoring and sweeping aside with thunderous moral indignation, the doubters and their petty schmival liberties concerns, too?

            1. ‘Sacred abortion is a meme.’

              Just rocketing off on a fountaining tower of bullshit. Though running round like headless chickens is indeed an apt image of anti-choicers.

              1. What is ‘bullshit’? You didn’t point out anywhere I’m factually wrong. just slung insults. I’m not expecting anyone to stop sucking out baby brains or trucking drug cartel members over the border while rending their garments over the warcrime of not getting a vaccine but at least they could be man enough to admit their hypocrisy.

                1. How would we prove any of your comment right or wrong?
                  It’s entirely partisan opinion, stated angrily.

                  1. That’s how Conservatives define “truth”.

                2. ‘Memes are as contagious or even more so than a traditional disease.’

                  How do you do fellow kids

                3. “What is ‘bullshit’? You didn’t point out anywhere I’m factually wrong. just slung insults.”

                  The assumption is that you already know exactly where you’re factually wrong, so pointing it out is a waste of effort. On that assumption, you’re wrong and you know it but you keep going on the same wrong path, hence insults are in order.

            2. We could save more lives if we simply ignored Covid and used the full force of the government to eliminate smoking via fiat. It would be easy enough to do via drug tests for nicotine metabolites — it would be an incredible rape of civil rights, but it could be done.

              The real question is whose body is it?

              1. It would be far more reasonable and justified for the government to outlaw unhealthy foods and require forced exercise regimens, than to mandate masks and forced vaccinations.

                A broad government power to force vaccinations will be misused for both negligence and evil, sooner or later. Already has been.

                1. Slippery slope arguments need more than this.

                  1. Fetch me a rock!

                2. ‘It would be far more reasonable and justified’

                  It would be neither.

                  1. Perhaps not as an absolute matter. But relative to masks and vaccines?

                    What’s more important, my right to inhale McDonald’s and Taco Bell, wash it down with a toxic 64 oz drink, and finish it off with a pack of Camels?

                    Or, my right to . . . show my face to people, and just breathe air, without a thin piece of cloth covering it, for which there is not one bit of sound evidence to support it doing any good for anyone?

                    1. These restrictions are temporary and driven by an extreme global public health emergency and they work, though they work better when they’re not being undermined and sabotaged by a political faction sworn to reckless disregard for shared reality.

                    2. “What’s more important, my right to inhale McDonald’s and Taco Bell, wash it down with a toxic 64 oz drink, and finish it off with a pack of Camels?”

                      More important to who? The people who own McD stocks and local franchises probably have a strong opinion on the matter, along with people who run medical clinics. The tobacco farmers might want a say, too, along with the array of nicotine addicts, who are already stinging because their obnoxious habit is not widely tolerated in public.

                3. “A broad government power to force vaccinations will be misused for both negligence and evil, sooner or later. Already has been.”

                  Even before we were deciding that Chinese people weren’t welcome to resettle in the United States (never mind what’s written on that statue about yearning to breathe free), we were excluding people with communicable diseases.

                4. “It would be far more reasonable and justified for the government to outlaw unhealthy foods and require forced exercise regimens, than to mandate masks and forced vaccinations. ”

                  They only do 50% of this to military members, who have voluntarily waived some of their rights as part of their enlistment. When I went to technical training, it happened to be on the same base where they also trained cooks. They’d send the would-be cooks to do OJT in the mess halls around the base, and pizza deliveries would skyrocket and the lines in the on-base Burger King would get longer.

              2. There are all sorts of bans on smoking though, quite reasonably, because of second hand smoke issues, which, incidientally, is where your ‘let’s do this other thing!’ overlaps with public health concerns around covid.

          2. You cant get catch something you demand others get vacinated for. Surley you protect yourself.

        2. “You’re right, glad you could admit Thomas Jefferson didn’t slip in the right to abortion on the backside of the Constitution.. ”

          Excuse me, Mr. Patriot, but Jefferson didn’t write the Constitution, he wrote the Declaration of Independence.

          1. If he didn’t write it, obviously he didn’t slip abortion rights into it! Glad we all agree.

      3. A “sphere of privacy about personal decision rooted in childrearing” which includes the right to kill said child. Fascinating.

        1. Yeah, there’s plenty of caselaw explaining it if you’re interested.

          1. There was plenty of caselaw upholding slavery and segregation too.

            1. Segregation is making a comeback…now its not only right, but morally required.

            2. “There was plenty of caselaw upholding slavery”

              Not since the 13th amendment, there wasn’t.

    2. What’s really weird is that violating bodily autonomy is THE MOST IMPORTANT THING IN THE WORLD when it comes to women, but not when it’s a global pandemic shutting down entire countries and killing thousands.

      1. This case has nothing to do with covid. In fact, there are no vaccines for children.

        1. there are no vaccines for children

          And there’s no call whatsoever to push that envelope, given children’s near-zero risk profile for COVID itself.

          1. They’re testing it in babies as young as 6 months as we speak.

            1. Man, I don’t want to hear any syrupy-sweet swill about “we can’t do a proper RCT on masks becuz medical ethics” ever again. Ever.

              1. Then stop typing the words you don’t want to read.

        2. “This case has nothing to do with covid. In fact, there are no vaccines for children.”

          Unless you count the ones currently in trials.

  6. As I understand Kavanaugh’s “favored class” doctrine, the continued existence of a medical exemption means the repeal leaves those who object to the vaccine on religious grounds outside the “favored class” of those who object for medical reasons. Thus, strict scrutiny ought to apply.

    Judge Pritzker claimed the “favored class” doctrine is not violated when a religious exemption is repealed, but I don’t see why that makes a difference. If instead there had been only a medical exemption from the beginning, would Judge Pritzker agree strict scrutiny applies?

    The problem is Kavanaugh’s doctrine is flawed as Eugene argues in his Fulton brief. The existence of non-religious exemptions should not trigger strict scrutiny for why there isn’t a religious exemption.

    1. Hypothetically speaking, if a medical provider would put into writing that obtain a vaccination for this person would cause them psychological harm, would that be an adequate medial exemption?

      1. I don’t think you need to stretch the rules so far. Go doctor shopping until you find a vaccine skeptic. In California for a while it was a little harder to get a vaccine exemption than a medical marijuana prescription, but still possible without having the sort of medical problems state lawmakers imagined. State regulators may have since intimidated doctors.

        1. ” State regulators may have since intimidated doctors.”

          Or the fact that it’s currently legal for recreational use discouraged recreational users from seeking medical-use cards.

          1. I meant intimidating doctors who give out too many vaccine exemptions. Under SB 276 of 2019, all medical exemptions are registered with the state and state regulators will review exemptions by any doctor who writes more than five per year. https://www.chhs.ca.gov/blog/2019/09/09/senate-bill-276-and-senate-bill-714-vaccinations-and-medical-exemptions-questions-and-answers/

            1. Sure, and the federal government under W tried to cancel the prescribing authority of doctors who adhered to Oregon’s “death-with-dignity” bill.
              Never mind the shaky legal authority for the controlled substances act in the first place.

      2. I believe so. So what?

        1. I think you’re going to see a lot of “medical” exemptions suddenly pop up for “psychological” reasons.

          1. That seems more likely than a pillar of fire that appears in the night, and a pillar of smoke that appears in the daytime, plus the bushes all around the courthouse bursting into flames but then not being consumed by fire, as various deities explain that vaccination offends them.

            1. Mmm Hmm…

              You want to take a guess at what the most common reason for a “medical” abortion is in the UK?

              1. Demon infestation?

  7. As a matter of legal scholarship, what the difference between the right to get an abortion and the right to not be vaccinated?

    Is it only “my body, my choice” in one case, but not the other? Is it only a right to privacy in one case, but not the other? How does the legal system differentiation between the rights on one hand, and the lack of rights on the other hand? What’s the guiding principle?

    1. Why pick abortion? What’s the difference between ANY medical procedure or treatment and vaccinations?

    2. As a matter of legal scholarship, what the difference between the right to get an abortion and the right to not be vaccinated?

      Because abortion does not affect any one else, except, of course, for the fetus.

      Not getting vaccinated potentially can cause infection and disease in a large number of others. Particularly for children, who go to school and hence have more contact with more people than many adults.

      1. “Because abortion does not affect any one else, except, of course, for the fetus.”

        That’s not actually true. It affects a number of people. Mothers. Fathers. On a larger scale, in aggregate it has truly massive effects on the economic wellbeing of the country.

        1. I’m not sure your economic point is at all established.
          I’m also not sure who you are calling mothers and fathers who are effected. Maybe you don’t know what abortion does…?

          1. It’s fairly well understood that sub-replacement fertility rates (to which abortion contributes) are very bad for the long term economics of counties….

            That you’re “not sure” about it speaks more to you….

            1. I don’t think that’s true in a country that allows immigration and has proven so adept at integrating peoples into itself.

            2. In addition to what Sarcastro says, you will eventually reach a stable population[1]; it can’t grow indefinitely. Societies will have to figure out how to adapt to not having a continuously growing population.

              [1]For completeness sake, populations don’t have to reach a steady state – boom/bust population cycles work as well. Those are best avoided if possible, the ‘bust’ part of the cycle tends to be pretty unpleasant.

              1. war, famine, pestilence, and death. The ready capitalist can make a profit from any or all of the four…

            3. Then it seems obvious that the economies will have to change. Like so many of these things where we have clear trends, predictions and models, the solution is to plan accordingly, not stand athwart demographic changes crying HAVE MORE BABIES or deny them and open up during a pandemic or stamp your feet and keep pumping out carbon.

        2. Same can be said of all medical procedures, though. We live, as they say, in a society.

      2. Not getting vaccinated potentially can cause infection and disease in a large number of others. Particularly for children, who go to school and hence have more contact with more people than many adults.

        I thought everyone else is already vaccinated

        1. This is what you get for not paying attention.

    3. “As a matter of legal scholarship, what the difference between the right to get an abortion and the right to not be vaccinated?”

      In one case, the right to get an abortion ends when the fetus can survive outside your body. In the other case, your right not to be vaccinated ends when the pathogen can survive outside your body. Premature babies are tiny and cute. Pathogens are tiny and not-cute.

  8. So….lets not beat around the bush. Nothing in Torah outright prohibits vaccination. Rockland County, NY has a fairly sizable Orthodox population. I know, I go there on rare occasions to daven, or for a Bar Mitzvah. I went to college in the general area. They’re good and warm people, though very private.

    I personally do not have a problem with a municipality saying: No vaccination…then no school admission. BUT, I also believe the tax dollars should follow the child where they DO go to school. And that school could be a yeshiva that does not require vaccination. That seems to be a fair balance, to me.

    1. Seems reasonable to me. But the New York law apparently applies to private schools. And of course they won’t allow school choice.

    2. But “they” are not interested in fairness, only in compliance.

      1. “they” are trying to keep people from getting sick. When the religious community produces another guy who can walk around casting out devils and curing the sick, that might form a viable substitute for restricting people who want to retain the right to harbor and spread communicable diseases.

  9. Governments should not force people to be vaccinated against their will, even if they have authority to do so. The federal government in particular lacks any such authority.

    1. They aren’t forcing them to get vaccinated; only to stay out of public schools if they have not been vaccinated.

      1. Yes, my point was tangential. But they are forcing private schools to require this as well, that’s much closer to forced vaccinations.

        1. Actually, when you combine it with truancy laws which compel attendance at some school, you could pretty easily argue that these are forced vaccinations.

          I say that because it’s not entirely clear that the NY law allows any exceptions. Homeschooling is considered a flavor of private schooling in some contexts and therefore might still be in scope of the vaccination requirement.

          1. I don’t see any bureaucrats interpreting the law such as requiring a home-schooled child to stay out of their own home because it is where they are schooled, and the child is unvaccinated. I have a vivid imagination for some things, but that one just doesn’t sound like something a bureaucrat would come up with unless it was some kind of setup.

            1. “I don’t see any bureaucrats interpreting the law such as requiring a home-schooled child to stay out of their own home because it is where they are schooled, and the child is unvaccinated.”. Yet.

              1. Your imagination stretches in ways mine apparently doesn’t.

    2. “Governments should not force people to be vaccinated against their will, even if they have authority to do so.”

      If we’re talking “shoulds”, people should not have irrational reasons for not wanting to be vaccinated.

  10. Unvaccinated children harm babies in daycare, who have not yet been scheduled for vaccination. The MMR is the most important at age 1.

    https://www.cdc.gov/vaccines/schedules/easy-to-read/child-easyread.html

    1. Babies ought not *be* in daycare. That’s the bigger issue…

      1. The lawyer induced bastardy rate should not be 70% in minorities, and 40% in whites in 2010. Imagine the rates in the 2020 Census. Single women have no choice but to place their babies, thanks to the relentless attack of the lawyer toxic profession on the American patriarchal family.

        1. “The lawyer induced bastardy rate should not be 70% in minorities, and 40% in whites in 2010.”

          them lawyers is gettin’ an awful lot of women pregnant.

      2. “Babies ought not *be* in daycare.”

        Get them back to work in the factories where they belong.

    2. No, they don’t. The reason babies aren’t scheduled for (most) vaccinations until age 1 is that they are still protected by the antibodies from the mother.

      1. Maternal antibodies are present during breastfeeding, which normally stops before a year and sometimes never starts. The schedules I have seen are the same for breast- and bottle-fed infants.

        Some vaccinations are timed based on development of the immune system. Before six months the immune system doesn’t work well. By the late teens it works very well. For example, the HPV vaccine is more effective if given later. But wait too long and the teen catches the virus before being vaccinated. Hence the recommendation to give it to girls around puberty.

        Some vaccines interfere with each other if given close together. The CDC has to come up with a priority list rather than saying all vaccines as soon as possible. And to prevent distress to children and parents, the number of shots per visit needs to be managed. The pentavalent vaccine is going to take priority because it does five times the work for the same number of shots.

        1. Get yourself a kid who is ready for school earlier than usual, and see how many shots they can take in a single pediatrician visit.

  11. Leviticus 17:10
    “And whatsoever man there be of the house of Israel, or of the strangers that sojourn among you, that eateth any manner of blood; I will even set my face against that soul that eateth blood, and will cut him off from among his people.”

    This is the problem that the Jehovah’s Witnesses have with both blood transfusions and injection of blood-derived products, including vaccines that are so produced. As I understand it.

    And isn’t Leviticus part of the Torah, or Talmud, or something?
    Hence, if you interpret Leviticus 17:10 that way, then?

    1. Since no Jews interpret it that way, then they don’t have a problem. Eating means putting it in your mouth and swallowing.

      1. Eating means putting it in your mouth and swallowing.

        You personally translated that from Hebrew, to Greek, to Latin, to English?

        1. That’s…not how Jewish law works.

          1. That’s how Jewish law end up as an english translation.

            1. A bored lawyer does all that translation? That DOES sound boring.

    2. “And isn’t Leviticus part of the Torah, or Talmud”

      Its part of the Torah certainly but the religious rulings collected in the Talmud do not support your reading.

      That happens a lot, Talmudic jurisprudence is neither originalist nor textualist.

  12. Islam sees refusal of medical care as a haram. Medical treatments come from from Allah, and refusing them is a sin.

  13. Every religion has stuff in it that looks wacky to outsiders. Catholics have their ritual cannibalism, and so did the Aztecs have theirs. So it wouldn’t surprise me if there weren’t some people somewhere who actually have a belief that God wants them to be sick, and to spread sickness to others.
    Mostly, though, it looks like cases of “I don’t wanna do this, so I’m going to say ‘my religion is against this’ and get all pissy about religious freedom if anyone wants to make me do it.” to me. Like the way some religious fundamentalists have convinced themselves that God wants them to have 14-year-old brides, and calling them pedophiles for wanting 14-year-old brides is just religious intolerance.

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