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The Biggest Threat to Herd Immunity Against COVID-19 May Be the Religious Freedom Restoration Act(s) and State Religious Exemptions

Sep 1, 2020

By Marci A. Hamilton

Our national guru of vaccination, Dr. Anthony Fauci, recently stated that he did not anticipate needing or endorsing a mandate to be vaccinated once a COVID-19 vaccine is ready. He stated: “They have the right to refuse a vaccine. I don’t think you need a contingency plan. If someone refuses the vaccine in the general public, then there’s nothing you can do about that. You cannot force someone to take a vaccine.” Fauci’s reasoning did not illustrate a full understanding of either the constitutional or statutory issues involved.

There is no constitutional right to refuse a government mandate needed to prevent the deaths of fellow Americans. The Supreme Court has routinely upheld vaccine mandates against constitutional attack starting with Jacobson v. Massachusetts, so the issue is not the Constitution standing in the way of a vaccine mandate. The First Amendment simply does not provide a pathway to successfully object to a neutral, generally applicable vaccine mandate against a pandemic.

The real threat to herd immunity, however, lies in the statutory religious liberty statutes and exemptions, which we need to address sooner rather than later. They are a potential escape hatch for religious and nonreligious objectors.

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