The public debate over vaccines in the United States and many other countries has been inflamed by arguments about personal liberty and religious freedoms. Are there really major Constitutional questions and doctrinal issues at play, or is this mostly about politics?

In the United States, vaccinations are largely settled law. Governments at all levels may be reluctant to require that everyone be vaccinated, but they have had the absolute power to do that for more than 100 years. Any vaccination requirement to date has had exceptions (in 45 of the 50 states) for those with a “religious” objection, described as a sincere religious belief, or who are medically compromised. The contours of that sincere religious belief have never been defined, however.

In fact, as the United States has seen hundreds of cases each day, mostly of the unvaccinated, religious leaders of nearly every faith and of many denominations within those faiths have not only implored their faithful to get vaccinated but have said that there is no religious basis on which to refuse a shot. Several lawsuits have been brought on ”religious grounds,” but these suits are based on the bogus claim that the vaccine were developed from fetal lines. Religious leaders have denounced this argument and have listed some of the widely used drugs, such as Tylenol and Pepto Bismol, which were developed through fetal lines.

The legal history is fairly simple and clear. In 1902, the board of health of the city of Cambridge, Massachusetts, ordered all adults to be vaccinated against smallpox – imposing a fine of $5 (about $100 today) for refusing the order. Massachusetts had granted city boards of health the authority to require vaccination “when necessary for the public health.”

A pastor in Cambridge, Henning Jacobson, who happened to be an immigrant from Sweden, refused to take the vaccine. He said that he and his sons had bad reactions during Swedish vaccine campaigns in the past and that in any case, the mandate was a violation of his Constitutional liberty, which he claimed gave him the right to refuse the vaccine for any purpose. He was fined $5, he sued, and the Massachusetts Supreme Judicial Court held that no one could be forced to be vaccinated.

In 1905, the Supreme Court flatly disagreed. It reversed the lower court and upheld the power of the board of health to order a general vaccination program during an epidemic. Justice Harlan, who later famously dissented on the court’s most significant civil rights ruling of his tenure, wrote the majority opinion in the vaccine case. He said that the questions before the Court were whether the safety of the public justified the restriction and whether it was enforceable by reasonable regulations. He answered yes to both questions. The vaccination law was enforceable because it was necessary for the public health and the public safety. Both the Cambridge board of health and the state government of Massachusetts were the proper authorities to determine the necessity for the vaccination regime, he said, and the Supreme Court should not interfere with its authority or its judgment.

In 1922, the Supreme Court addressed the only other case it has decided regarding vaccinations. It held in Zucht v. King that a city had the right to require children who attended public or private school to be vaccinated for smallpox. The decision is only three paragraphs long, which meant that the Court did not believe that there was any valid legal objection to the school attendance vaccination requirement.

Since the Supreme Court decision in Jacobson, everyone recognizes that there is a balance to be struck between the public health requirement and citizens’ fundamental rights. Some have argued that a state regulation is valid if it has some relationship to the public health and does not blatantly violate any specific fundamental right. Others argue that Jacobson merely emphasizes that the “rights” of citizens is paramount and the power of the government should be restrained. Finally, those in the middle place more emphasis on the role of the government in balancing these competing interests.

There is no magic formula for striking this balance. Since there has been no government, federal, state or city which has ordered vaccinations for all its citizens, courts have not been faced with how to strike a balance between the power of the government and “religious” convictions, or some other fundamental right that has allegedly been harmed. The Supreme Court has declined to describe how courts should determine the balance between claims of the free exercise of religion and the government’s interest in ensuring health care coverage and, in the case of vaccination, the general health and well-being of the citizens.

While the area of compulsory vaccinations is largely settled as a matter of law, the law of religious exemptions is not. In recent years the claims for religious exemptions have come largely in cases concerning the Affordable Care Act’s requirement that policies cover contraceptives and in other areas affecting women’s health. Does this warrant a revisiting of the compulsory vaccination cases

Various Supreme Court cases have held, for decades, that a person does not have to be a member of a recognized religion to hold a “sincere religious belief.” Skeptics have long believed that these “sincere religious beliefs” are, in fact, strongly held political views. For example, are those who are opposed to contraception or oppose various abortion techniques objecting on religious or political grounds? Courts have been reluctant to examine these claims in detail, but, at least on the surface, there seems to be a congruence between those who claim a “sincere religious belief” and those who oppose vaccination and those whose politics are to the far right politically or what is called libertarianism in the United States – people who oppose much government “intervention” in their lives.

The US Government’s position itself recognizes this “political” shift. In 2020, before a vaccine was available, the U.S. Equal Employment Opportunity Commission under President Trump, said an employer may require that its employees be vaccinated, but must in most cases provide a reasonable accommodation to an employee who notifies the company that they hold a sincere religious belief, practice, or observance that prevents them from taking the vaccine.

In 2021, the Biden Administration removed any reference to religious belief, saying instead that “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA (Americans with Disabilities Act) and Title VII of the Civil Rights Act of 1964 and other EEO considerations.”

The idea that someone can use their religious belief, however sincerely held, to infringe on the rights (and religious views) of others has always been a mystery to me. The strength of religion and religious leaders as forces of good has been long recognized and praised. There are individuals who have asserted that their religion forbids them to have a transfusion, for example, but that is an individual choice which is consistent with a recognized view that a patient may decline treatment even if that decision assures death. However, the decision not to be vaccinated, which to the best of my understanding has no scriptural support, affects not only the individual, but those around them. The patient may infect others, or if severely ill, may require hospitalization which has a substantial cost, both from the use of hospital beds and services for other hospital services. If ICU beds are full of COVID patients, there is no space for all other patients.

So, the issue here is not legal, or perhaps even religious, but political. So while the United States, like so many countries is seriously divided politically, what is worse is that these divisions now even transcend politics. Too many people cannot agree on the same scientific facts to be a baseline from which to make reasoned decisions.

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By William M. Pinzler.

William M. Pinzler is an attorney in New York, where he has practiced for more than 50 years. He has written extensively on matters of ”sincere religious belief.”

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