RELIGIOUS & MEDICAL EXEMPTIONS
[In order to abrogate] "The vital freedom of religion, which is 'of the very essence of a scheme of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 the evils must be grave, immediate, substantial." Cf. Bridges v. California, 314 U.S. 252, 262,"
What happens when submission to an experimental genetic therapy (mandated by force or coercion) conflicts with sincerely held religious belief?
“Religion” is very broadly defined and encompasses not only organized religions, but also informal beliefs. “Religion” under the law can also encompass non-theistic and moral beliefs.
In Chenzira v. Cincinnati Children's Hospital Medical Center, 2012 U.S. Dist. Lexis 182139 (S.D. Ohio, 2012)
This discussion on religious exemptions is divided into three parts. The first addresses a vaccine mandate implemented by the federal government or by a state. In these cases of "state action" first amendment protection applies. In the second case of a mandate by a private employer, Title VII of the Civil Rights Act of 1964 applies. Lastly, is discrimination by private entities involving public accommodations, pursuant to 42 U.S. Code § 2000a (Title II).
A. Federal/State Mandate
"CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF"
Constitution of the United States of America, 1st Amendment
December 15, 1791
"We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution." - Abraham Lincoln
“We have no government armed with power capable of contending with human passions unbridled by morality and religion...Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
In Employment Division v. Smith, the Court held that the State need not satisfy strict scrutiny as to a neutral, generally applicable law that happened to affect religious exercise. In response to the Smith decision, Congress passed RFRA, which requires that the government demonstrate a compelling interest and adopt the least restrictive means whenever it substantially burdens a person’s free exercise of religion.
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA), is a 1993 United States federal law that "ensures that interests in religious freedom are protected."
Under RFRA, general laws burdening broadly defined religious exercises must be (1) supported by government’s compelling interests; and (2) furthered through least restrictive means.
In enacting RFRA, Congress reestablished the holding in Yoder and our constitutional order grounded in religious freedom.
O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. (Wisconsin v. Jonas Yoder, 406 U.S. 205 (1972)
B. Employer Mandate & Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits discrimination in virtually every employment circumstance on the basis of race, color, religion, gender, pregnancy, or national origin. In general, Title VII applies to employers with 15 or more employees. But in order to state a claim, the plaintiff must be an employee.
Under Title VII of the Civil Rights Act of 1964, individuals have the right to be free from discrimination on the basis of religion. As part of their religious beliefs, many individuals object to vaccines. Employers are required to accommodate religious observances and practices, unless doing so imposes an undue hardship on the business.
In Chenzira v. Cincinnati Children's Hospital Medical Center, 2012 U.S. Dist. Lexis 182139 (S.D. Ohio, 2012), the court recognized that veganism, in some circumstances, may constitute a sincerely held religious belief. That court exempted an employee from a flu shot requirement.
Once an employer determines that a true religious exemption exists, the employer must make an accommodation for the employee. Such accommodations may include reducing a mask requirement, modifying work duties to comply with social distancing, adjusting an employee’s schedule, or allowing an employee work from home.
If an employer can establish that the employee is seeking an exemption for non-religious reasons, the employer may deny the employee’s request. In a case from the Third Circuit, Fallon v. Mercy Catholic Med. Ctr., No. 16-3573 (3d Cir. Dec. 14, 2017), the court denied an employee’s request for exemption finding that the employee’s concerns were really about health effects of the flu vaccine, meaning they were actually medical rather than religious.
C. Prohibition against Religious Discrimination or Segregation in Places of Public
Accommodation, 42 U.S. Code § 2000a (Title II)
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
For over a century and half, the state and federal laws of our country have prohibited discrimination in places of public accommodation. These laws go back to our common law roots in England, where the earliest such laws were innkeeper laws. As one of the 19th-century English judges put it, in a decision cited with approval by our own United States Supreme Court, the rule was: “The innkeeper is not to select his guests. … He has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.”
Interestingly, these laws are rooted in the Judeo-Christian tradition of hospitality and kindness to strangers. The laws have been extended over the years to all places of public accommodation — any place for the sale of goods, merchandise or services to the public.
Our traditions and our laws therefore require businesses to serve the public without discriminating on impermissible bases, including race, religion, sex, national origin and (in many states) sexual orientation. Supreme Court Justice Goldberg wrote in the Heart of Atlanta Motel case in 1964, more than 50 years ago, that the primary purpose of these civil rights laws is “to solve this problem, the deprivation of personal dignity that surely accompanies denials of equal access to public establishments. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.” The same reasoning would apply to her religion, her sex, or a person’s sexual orientation.
Even if there is another business down the street that offers service on a non-discriminatory basis, it does not mean no harm flows from the discriminatory refusal of service. The core purpose of the public accommodation laws, as the state’s Supreme Court should affirm, is to preserve and protect the essential human dignity of all members of our diverse society. These laws benefit all of us — people of all races, faiths, national origins and sexual orientations (ACLU Washington).
D.Free Exercise (State Action) and/or Non- Discrimination (Private Entity) vs the Public Health.
Balancing the harm.
Weighing the balance between the state's compelling interest to vaccinate and the abrogation of the individual's right to religious freedom should be informed by the test established in Jacobson v. Mass. Jacobson's balance test can also be utilized to determine when reasonable accommodation becomes an undue hardship.
Setting aside industry's promotional materials for their new CRISPR gene modified products, Moderna's SEC 8k filing reveals the serious nature of the harm unsuspecting gene therapy subjects confront and should inform the balancing of the benefits and harm of vaccination. Prior to courts deciding the preponderance of weight should be placed on communitarian "ideals" arising out from a distorted perception of the benefit, jurists should consider not only the impact on religious freedom but the very real risks to the community from mass vaccination with an experimental therapy.
While many law-farers will argue, that the free exercise of religion or its accommodation must yield to public health, what happens when "public health" is neither informed by law, science or manufacturer warnings?
According to Moderna's SEC 8K:
"Currently, mRNA is considered a gene therapy product by the FDA. In certain countries, mRNA therapies have not yet been classified or any such classification is not known to us...mRNA drug development has substantial clinical development and regulatory risks due to the novel and unprecedented nature of this new category of medicines...As a potential new category of medicines, no mRNA medicines have been approved to date by the FDA or other regulatory agency... Gene therapies and mRNA based medicines may activate one or more immune responses against any and all components of the drug product (e.g., the mRNA or the delivery vehicle, such as a lipid nanoparticle) as well as against the encoded protein, giving rise to potential immune reaction related adverse events...Due to the novel nature of this technology and limited experience at larger scale production, we may encounter difficulties in manufacturing, product release, shelf life, testing, storage and supply chain management, or shipping. These difficulties could be due to any number of reasons including, but not limited to, complexities of producing batches at larger scale, equipment failure, choice and quality of raw materials and excipients, analytical testing technology, and product instability...The process to generate mRNA investigational medicines encapsulated in LNPs is complex and, if not developed and manufactured under well-controlled conditions, can adversely impact pharmacological activity...In addition to serious adverse events or side effects caused by any of our investigational medicines, the administration process or related procedures also can cause undesirable side effects...Our product and product intermediates are extremely temperature sensitive, and we may learn that any or all of our products are less stable than desired."
Applying these documented life threatening risks by the manufacturer above, to the balance test set forth in Jacobson, no synthetic and/or recombinant gene therapy (even if labelled a vaccine) can be constitutionally mandated against a virus, where survival of those "infected" is estimated to be northward of 99%. It should be noted that while CDC announces daily the exact number of Covid cases and deaths, CDC claims it "does not have the data to calculate the survivability for COVID 19" (Politifact 12.22.20).
He would have considered this testimony of experts in connection with the facts that for nearly a century most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive; and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity." (Jacobson).
Additionally, in determining reasonable accommodation, the hardship of religious accommodation must be weighed based on the relative likelihood of non-vaccinated vs vaccinated transmission and the likely harm, should transmission occur. Because the "vaccine's" defense against transmission remains unproven, and even if transmission occurs in the non-vaccinated, there is a low likelihood of serious disease. Thus a sincere religious belief against vaccination should be accommodated by the private sector. In those most burdensome scenarios, where non-vaccinated employees are required to be in close proximity to other non-vaccinated employees for time periods exceeding CDC threshold time transmission values, the non-vaccinated can be accommodated by being permitted to wear a mask, which provides equal or better defense against disease transmission.
The freedom of religion is an unalienable right bestowed upon us from our Creator. Black’s Law Dictionary states, unalienable rights are “incapable of being alienated, that is, sold and transferred”(Staff & Haley, Black's law dictionary 1991). When the Declaration of Independence was written our Founding Fathers made sure to state, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Our Founding Fathers knew that government would from time to time attempt to violate our rights and they secured constitutional protections for the people. While businesses may state, “no shirt, no shoes, no service” it does not follow that forcing an experimental therapy on its employees or customers is lawful especially if it can cause mental, physical or emotional harm to the individual this is being forced upon (Health Freedom Ohio).
In short, what happens when health policy abridging an individual rights' is informed more by guesswork and belief than by the scientific method?
The following quote from Pascal Soriot, the CEO of AstraZeneca, typifies pharma's laissez faire attitude when it comes to protecting the public's health.
"You can't spend your time figuring out is it going to work or not going to work, you just have to commit."
The stubborn fact is, clinical trials are ongoing. If the FDA adheres to established standards, they then must wait for the actual results of concluded trials, before concluding a novel biologic is safe and effective. It is simply impermissible for the FDA to rely upon the self dealing conjecture of the pharmaceutical industry and their cohorts, especially given their pattern and practice of medical fraud and bribery (see Pfizer's rap sheet).
What I propose for consideration (and what will be explored further) is that the balance is not between the free exercise of religion and the public health. What has emerged, instead with COVID 19, is a global contest between two fundamentally competing belief systems for the future of humanity.
Some individuals may have medical reasons which prevent them from getting a vaccine. Medical exemptions may include allergies to vaccine components, a history of Guillain-Barré syndrome, or other health ailments that make the vaccine risky for the individual.
Recently, some individuals have displayed a highly allergic reaction to a COVID-19 vaccine, and the medical guidance has since changed for individuals with severe allergies. If an individual claims a medical basis for requesting an exemption from a vaccine requirement, an employer may request that the employee provide a physician’s note.
If an individual raises a medical basis for an exemption, the employer is required to follow the interactive process outlined by the Americans with Disabilities Act (ADA). Employers must determine if the employee has a qualifying disability under the ADA and if an alternative accommodation can be offered.
Sample Medical Exemption Form:
Medical exemptions/accommodations for the COVID-19 vaccine will be considered if the employee provides a written certification by a licensed, treating medical provider [a physician (MD or DO), nurse practitioner (NP), or physician’s assistant (PA)], of one of the following:
1. The applicable CDC contraindication for the COVID-19 vaccine,or
2. The applicable contraindication found in the manufacturer’s package insert
for the COVID-19 vaccine, or
3. A statement that the physical condition of the person or medical circumstances relating to the person are such that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances that contraindicate immunization with the COVID-19 vaccine.
According to The American Academy of Family Physicians (AAFP) medical exemptions require substantiation, although the exact nature of those bona fides is not clearly delineated:
"Clinicians should approve a medical exemption from vaccination only for a bona fide medical contraindication."
Medical exemptions appear to be universally permissible based on the subjectivity of individual physicians: As another example, American University states:
"A medical exemption is allowed if a physician provides a detailed letter indicating that immunizations are medically inadvisable."
Toward a more objective standard:
Center for Disease Control
ACIP Vaccine Recommendations and Guidelines
Advisory Committee on Immunization Practices (ACIP)
Contraindications and Precautions
General Best Practice Guidelines for Immunization: Best Practices Guidance of the Advisory Committee on Immunization Practices (ACIP)
National standards for pediatric vaccination practices have been established and include descriptions of valid contraindications and precautions to vaccination. Persons who administer vaccines should screen patients for contraindications and precautions to the vaccine before each dose of vaccine is administered. Screening is facilitated by consistent use of screening questionnaires, which are available from certain state vaccination programs and other sources (e.g., the Immunization Action Coalitionexternal icon).
Contraindications (conditions in a recipient that increases the risk for a serious adverse reaction) to vaccination are conditions under which vaccines should not be administered. Because the majority of contraindications are temporary, vaccinations often can be administered later when the condition leading to a contraindication no longer exists. A vaccine should not be administered when a contraindication is present; for example, MMR vaccine should not be administered to severely immunocompromised persons. However, certain conditions are commonly misperceived as contraindications (i.e., are not valid reasons to defer vaccination).
Severely immunocompromised persons generally should not receive live vaccines . Because of the theoretical risk to the fetus, women known to be pregnant generally should not receive live, attenuated virus vaccines. Persons who experienced encephalopathy within 7 days after administration of a previous dose of pertussis-containing vaccine not attributable to another identifiable cause should not receive additional doses of a vaccine that contains pertussis. Severe Combined Immunodeficiency (SCID) disease and a history of intussusception are both contraindications to the receipt of rotavirus vaccines.
A precaution is a condition in a recipient that might increase the risk for a serious adverse reaction, might cause diagnostic confusion, or might compromise the ability of the vaccine to produce immunity (e.g., administering measles vaccine to a person with passive immunity to measles from a blood transfusion administered up to 7 months prior). A person might experience a more severe reaction to the vaccine than would have otherwise been expected; however, the risk for this happening is less than the risk expected with a contraindication. In general, vaccinations should be deferred when a precaution is present. However, a vaccination might be indicated in the presence of a precaution if the benefit of protection from the vaccine outweighs the risk for an adverse reaction.
The presence of a moderate or severe acute illness with or without a fever is a precaution to administration of all vaccines. The decision to administer or delay vaccination because of a current or recent acute illness depends on the severity of symptoms and etiology of the condition. The safety and efficacy of vaccinating persons who have mild illnesses have been documented. Vaccination should be deferred for persons with a moderate or severe acute illness. This precaution avoids causing diagnostic confusion between manifestations of the underlying illness and possible adverse effects of vaccination or superimposing adverse effects of the vaccine on the underlying illness. After they are screened for contraindications, persons with moderate or severe acute illness should be vaccinated as soon as the acute illness has improved. Studies indicate that failure to vaccinate children with minor illnesses can impede vaccination efforts. Among persons whose compliance with medical care cannot be ensured, use of every opportunity to administer appropriate vaccines is critical.
Hospitalization should be used as an opportunity to provide recommended vaccinations. Health-care facilities are held to standards of offering influenza vaccine for hospitalized patients, so providers are incentivized to vaccinate these patients at some point during hospitalization. Likewise, patients admitted for elective procedures will not be acutely ill during all times during their hospitalization. Most studies that have explored the effect of surgery or anesthesia on the immune system were observational, included only infants and children, and were small and indirect, in that they did not look at the immune effect on the response to vaccination specifically. They do not provide convincing evidence that recent anesthesia or surgery significantly affect response to vaccines. Current, recent, or upcoming anesthesia/surgery/hospitalization is not a contraindication to vaccination, but certain factors might lead a provider to consider current, recent, or upcoming anesthesia/surgery/hospitalization as a precaution. Efforts should be made to ensure vaccine administration during the hospitalization or at discharge. For patients who are deemed moderately or severely ill throughout the hospitalization, vaccination should occur at the earliest opportunity (i.e., during immediate post-hospitalization follow-up care, including home or office visits) when patients’ clinical symptoms have improved.
A personal or family history of seizures is a precaution for MMRV vaccination; this is because a recent study found an increased risk for febrile seizures in children 12-23 months who receive MMRV compared with MMR and varicella vaccine.
Neither Contraindications Nor Precautions
Clinicians or other health-care providers might misperceive certain conditions or circumstances as valid contraindications or precautions to vaccination when they actually do not preclude vaccination. These misperceptions result in missed opportunities to administer recommended vaccines.
Routine physical examinations and procedures (e.g., measuring temperatures) are not prerequisites for vaccinating persons who appear to be healthy. The provider should ask the parent or guardian if the child is ill. If the child has a moderate or severe illness, the vaccination should be postponed.
Additional USC Codes for Consideration re Exemptions:
United States Federal Codes are listed, and these are the “remedy of the people when rights violated.” (Robinson, 2013)
CONSPIRACY AGAINST RIGHTS—USC 18 §241
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State in the free exercise or enjoyment of any right, they shall be fined under this title or imprisoned not more than ten years, or both.”
DEPRIVATION OF RIGHTS—USC 18 §242
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State the deprivation of any rights, shall be fined under this title or imprisoned not more than one year, or both.”
DEPRIVATION OF RIGHTS—USC 42 §1983
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.”