Policing Religious Exemptions to Vaccines
A group of students at Creighton University in Nebraska filed suit last week over the Jesuit university’s refusal to consider religious exemptions to its COVID-19 student vaccination requirement. Pope Francis and the U.S. Conference of Bishops have both urged people to get vaccinated against COVID-19, but the students say they have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue.
As Nebraska Medicine, a regional health-care network, explains in a Q&A on its website, “The COVID-19 vaccines do not contain any aborted fetal cells. However, fetal cell lines -- cells grown in a laboratory based on aborted fetal cells collected generations ago -- were used in testing during research and development of the mRNA vaccines, and during production of the Johnson & Johnson vaccine.”
Bob Sullivan, a lawyer for the eight Creighton students who are suing, said that while it’s true the Vatican has endorsed COVID vaccination, the Catholic Church also stresses the importance of individual conscience.
“The Catholic Church teaches that a person must always obey the certain judgment of his or her conscience -- that’s in the catechism of the Catholic Church, paragraph 1,800 -- so when the students say this will be a violation of my deeply held religious belief and a violation of my conscience, that’s the end of the discussion,” Sullivan said. “If the institution that is trying to change their mind is Catholic, they should end the pressure at that point and let the student make the decision. They can educate, they can urge, but to mandate raises it to a whole new level.”
A spokeswoman for Creighton said the university is aware of the filing but does not comment on pending litigation.
As more and more colleges require COVID-19 vaccines for students and employees, they find themselves navigating similar thorny -- and potentially litigious -- territory when it comes to evaluating requests for religious exemptions that many states require institutions to consider. Federal employment law also requires employers to accommodate sincerely held religious beliefs.
What exactly constitutes a sincerely held belief and how vigorously universities should assess this remains contested ground. Experts say religious exemptions are easily abused by people who in fact have nonreligious reasons for resisting vaccination. At the same time, it’s an area that’s exceptionally difficult for colleges or the courts to police.
“Policing religious exemptions easily gets caught into the business of policing conscience and governing the way people practice religion, and that’s a really dangerous area for universities to step into,” said Dorit Rubinstein Reiss, a law professor at the University of California Hastings College of the Law who studies vaccine law and policy. “On the other hand, not policing them -- especially in contexts like this, where we know that many people who aren’t getting vaccinated are doing so because of nonreligious reasons -- means you’re going to have widespread abuse.”
Major religious denominations are essentially unanimous in their support for COVID-19 vaccination. But as Reiss wrote in a 2014 Hastings Law Journal article about K-12 school vaccination requirements and religious exemptions, the courts have found that while states do not have to offer religious exemptions to vaccine requirements, if they do offer them, they cannot discriminate between beliefs endorsed by organized religions and personally held beliefs.