Re: Vaccine objectors
This is certainly thoughtful. But what about the Jehovah's Witnesses cases re transfusions? Are we necessarily to prefer the interests of the religious parents over the health and safety of the child? Or do we simply say that the risk of measles, polio, tetanus etc. isn't so serious as the consequences of no transfusion. But the Jehovah's Witness child threatens no one else, whereas, by stipulation, the unvaccinated child does threaten the herd. Sandy Sent from my iPhone On Feb 1, 2015, at 3:41 PM, Perry Dane d...@crab.rutgers.edumailto:d...@crab.rutgers.edu wrote: Hi all, Without getting deeply mired myself (right now) in the normative implications here, it might still be worth noting that: 1. Exemptions from vaccination requirements only become a serious public health issue when they increase to the point of threatening herd immunity. That is to say, we can -- from a public health perspective -- tolerate some exemptions, but not too many. 2. According to some studies, states that allow personal in addition to religious exemptions, and states that grant exemptions easily, have (not a surprise) a higher rate of non-vaccinators than states that limit exemptions to religious motives or put more hurdles (documentation, etc.) in the way of folks seeking exemptions. See, e.g., http://www.ncbi.nlm.nih.gov/pubmed/17032989 3. It might even be possible, though I don't have any numbers to support this, that limiting exemptions to genuine religious objectors, and defining religion in any of the standard ways, would produce a rate of non-vaccination low enough not to pose a major public health risk. (That still leaves, of course, the question of risk to the individual unvaccinated child. But even that risk might be considerably reduced if herd immunity is in place.) That is to say, vaccination might be one of those contexts in which society has a solid compelling interest in enforcing a rule overall but not necessarily a compelling interest in enforcing that rule on genuinely religious objectors. (That was, for better or worse, Burger's argument in Yoder). The obvious challenge here is to the religion is not special view. If leveling up produces distinctly bad results (of a sort not produced by more limited religious exemptions), should that be a reason to level down and eliminate all exemptions? That is to say, should religious objectors lose rights they might otherwise have if too many non-religious folks want to get on the bandwagon? And even for the rest of us, who do think that religion is special, the intrusion of these sorts of facts creates a quandary. What if, for example, one part of the country has a number of religious objectors below the herd immunity threshold and another part of the country has a number above the threshold? How should law respond? As I said, I'm just asking the question here, not trying to answer it. Perry ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Vaccine objectors
Hi all, Without getting deeply mired myself (right now) in the normative implications here, it might still be worth noting that: 1. Exemptions from vaccination requirements only become a serious public health issue when they increase to the point of threatening herd immunity. That is to say, we can -- from a public health perspective -- tolerate some exemptions, but not too many. 2. According to some studies, states that allow personal in addition to religious exemptions, and states that grant exemptions easily, have (not a surprise) a higher rate of non-vaccinators than states that limit exemptions to religious motives or put more hurdles (documentation, etc.) in the way of folks seeking exemptions. See, e.g., http://www.ncbi.nlm.nih.gov/pubmed/17032989 3. It might even be possible, though I don't have any numbers to support this, that limiting exemptions to genuine religious objectors, and defining religion in any of the standard ways, would produce a rate of non-vaccination low enough not to pose a major public health risk. (That still leaves, of course, the question of risk to the individual unvaccinated child. But even that risk might be considerably reduced if herd immunity is in place.) That is to say, vaccination might be one of those contexts in which society has a solid compelling interest in enforcing a rule overall but not necessarily a compelling interest in enforcing that rule on genuinely religious objectors. (That was, for better or worse, Burger's argument in _Yoder_). The obvious challenge here is to the religion is not special view. If leveling up produces distinctly bad results (of a sort not produced by more limited religious exemptions), should that be a reason to level down and eliminate all exemptions? That is to say, should religious objectors lose rights they might otherwise have if too many non-religious folks want to get on the bandwagon? And even for the rest of us, who do think that religion is special, the intrusion of these sorts of facts creates a quandary. What if, for example, one part of the country has a number of religious objectors below the herd immunity threshold and another part of the country has a number above the threshold? How should law respond? As I said, I'm just asking the question here, not trying to answer it. Perry ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Vaccine objectors
I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification: 1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a personal objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view. On Sun, Feb 1, 2015 at 6:41 PM, Perry Dane d...@crab.rutgers.edu wrote: Sandy, Thanks. I did elide the state's distinct interest (separate from its general interest in assuring herd immunity) in making sure that individual children are protected from illness. That might indeed be compelling. But if the rest of the herd is vaccinated, then the risk to the individual child might (I'm just speculating here) be minimal, which might change the calculation and distinguish this case from the transfusion or cancer treatment cases. Of course, there's a free rider issue here, of sorts. But should be object to free-riding in principle, or only in the sort of free-riding that threatens the provision of the public good at issue? Perry On 02/01/2015 6:19 pm, Levinson, Sanford V wrote: This is certainly thoughtful. But what about the Jehovah's Witnesses cases re transfusions? Are we necessarily to prefer the interests of the religious parents over the health and safety of the child? Or do we simply say that the risk of measles, polio, tetanus etc. isn't so serious as the consequences of no transfusion. But the Jehovah's Witness child threatens no one else, whereas, by stipulation, the unvaccinated child does threaten the herd. Sandy Sent from my iPhone On Feb 1, 2015, at 3:41 PM, Perry Dane d...@crab.rutgers.edu wrote: Hi all, Without getting deeply mired myself (right now) in the normative implications here, it might still be worth noting that: 1. Exemptions from vaccination requirements only become a serious public health issue when they increase to the point of threatening herd immunity. That is to say, we can -- from a public health perspective -- tolerate some exemptions, but not too many. 2. According to some studies, states that allow personal in addition to religious exemptions, and states that grant exemptions easily, have (not a surprise) a higher rate of non-vaccinators than states that limit exemptions to religious motives or put more hurdles (documentation, etc.) in the way of folks seeking exemptions. See, e.g., http://www.ncbi.nlm.nih.gov/pubmed/17032989 3. It might even be possible, though I don't have any numbers to support this, that limiting exemptions to genuine religious objectors, and defining religion in any of the standard ways, would produce a rate of non-vaccination low enough not to pose a major public health risk. (That still leaves, of course, the question of risk to the individual unvaccinated child. But even that risk might be considerably reduced if herd immunity is in place.) That is to say, vaccination might be one of those contexts in which society has a solid compelling interest in enforcing a rule overall but not necessarily a compelling interest in enforcing that rule on genuinely religious objectors. (That was, for better or worse, Burger's argument in *Yoder*). The obvious challenge here is to the religion is not special view. If leveling up produces distinctly bad results (of a sort not produced by more limited religious exemptions), should that be a reason to level down and eliminate all exemptions? That is to say, should religious objectors lose rights they might otherwise have if too many non-religious folks want to get on the bandwagon? And even for the rest of us, who do think that religion is special, the intrusion of these sorts of facts creates a quandary. What if, for example, one part of the country has a number of
Re: Vaccine objectors
Marty, I agree with # 1, except in states that might have a particularly robust state free exercise doctrine. I also agree with # 2. The issue with respect to # 3, though, is this: What if it turns out that an exemption regime limited to actual religious objections (and not personal ones) did not produce serious third-party burdens because the number of kids left unvaccinated would not be enough to compromise herd immunity? Such a regime would, I believe, be constitutional. But it does raise at least a question for folks who (a) argue that religion is not special, (b) it is generally unfair to limit exemption regimes to folks with religious motives, and (c) the best remedy to such unfairness should generally be to level up to include deep non-religious beliefs rather than level down to eliminate exemptions entirely. Perry On 02/01/2015 10:38 pm, Marty Lederman wrote: I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification: 1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a personal objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Vaccine objectors
One issue not raised hete is the vast number on unvaccinatef immigrants which means the populstion of unvaccinated is constantly changing and growing Sent from my Verizon Wireless 4G LTE smartphone Original message From: Perry Dane d...@crab.rutgers.edu Date:02/01/2015 6:43 PM (GMT-05:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Vaccine objectors Sandy, Thanks. I did elide the state's distinct interest (separate from its general interest in assuring herd immunity) in making sure that individual children are protected from illness. That might indeed be compelling. But if the rest of the herd is vaccinated, then the risk to the individual child might (I'm just speculating here) be minimal, which might change the calculation and distinguish this case from the transfusion or cancer treatment cases. Of course, there's a free rider issue here, of sorts. But should be object to free-riding in principle, or only in the sort of free-riding that threatens the provision of the public good at issue? Perry On 02/01/2015 6:19 pm, Levinson, Sanford V wrote: This is certainly thoughtful. But what about the Jehovah's Witnesses cases re transfusions? Are we necessarily to prefer the interests of the religious parents over the health and safety of the child? Or do we simply say that the risk of measles, polio, tetanus etc. isn't so serious as the consequences of no transfusion. But the Jehovah's Witness child threatens no one else, whereas, by stipulation, the unvaccinated child does threaten the herd. Sandy Sent from my iPhone On Feb 1, 2015, at 3:41 PM, Perry Dane d...@crab.rutgers.edumailto:d...@crab.rutgers.edu wrote: Hi all, Without getting deeply mired myself (right now) in the normative implications here, it might still be worth noting that: 1. Exemptions from vaccination requirements only become a serious public health issue when they increase to the point of threatening herd immunity. That is to say, we can -- from a public health perspective -- tolerate some exemptions, but not too many. 2. According to some studies, states that allow personal in addition to religious exemptions, and states that grant exemptions easily, have (not a surprise) a higher rate of non-vaccinators than states that limit exemptions to religious motives or put more hurdles (documentation, etc.) in the way of folks seeking exemptions. See, e.g., http://www.ncbi.nlm.nih.gov/pubmed/17032989 3. It might even be possible, though I don't have any numbers to support this, that limiting exemptions to genuine religious objectors, and defining religion in any of the standard ways, would produce a rate of non-vaccination low enough not to pose a major public health risk. (That still leaves, of course, the question of risk to the individual unvaccinated child. But even that risk might be considerably reduced if herd immunity is in place.) That is to say, vaccination might be one of those contexts in which society has a solid compelling interest in enforcing a rule overall but not necessarily a compelling interest in enforcing that rule on genuinely religious objectors. (That was, for better or worse, Burger's argument in Yoder). The obvious challenge here is to the religion is not special view. If leveling up produces distinctly bad results (of a sort not produced by more limited religious exemptions), should that be a reason to level down and eliminate all exemptions? That is to say, should religious objectors lose rights they might otherwise have if too many non-religious folks want to get on the bandwagon? And even for the rest of us, who do think that religion is special, the intrusion of these sorts of facts creates a quandary. What if, for example, one part of the country has a number of religious objectors below the herd immunity threshold and another part of the country has a number above the threshold? How should law respond? As I said, I'm just asking the question here, not trying to answer it. Perry ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Vaccine objectors
one thought on Marty's point 1. The number of children being home schooled is huge. If the vehicle for requiring immunization is schooling then many people will avoid the mandate by opting out of schools. Virtually unregulated home schooling is one of the consequences of Yoder. * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane [d...@crab.rutgers.edu] Sent: Sunday, February 01, 2015 11:15 PM To: Law Religion issues for Law Academics Subject: Re: Vaccine objectors Marty, I agree with # 1, except in states that might have a particularly robust state free exercise doctrine. I also agree with # 2. The issue with respect to # 3, though, is this: What if it turns out that an exemption regime limited to actual religious objections (and not personal ones) did not produce serious third-party burdens because the number of kids left unvaccinated would not be enough to compromise herd immunity? Such a regime would, I believe, be constitutional. But it does raise at least a question for folks who (a) argue that religion is not special, (b) it is generally unfair to limit exemption regimes to folks with religious motives, and (c) the best remedy to such unfairness should generally be to level up to include deep non-religious beliefs rather than level down to eliminate exemptions entirely. Perry On 02/01/2015 10:38 pm, Marty Lederman wrote: I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification: 1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a personal objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Vaccine objectors
Sandy, Normatively, I do think that when the risk to the health of a child is grave and imminent, the state can and should intervene and require treatment. Perry On 02/01/2015 11:31 pm, Levinson, Sanford V wrote: I'm still not certain what Perry's position is re the Jehovah's Witness children, where the adverse consequences are internalized to the child. sandy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Vaccine objectors
I’m still not certain what Perry’s position is re the Jehovah’s Witness children, where the adverse consequences are “internalized” to the child. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane Sent: Sunday, February 01, 2015 10:16 PM To: Law Religion issues for Law Academics Subject: Re: Vaccine objectors Marty, I agree with # 1, except in states that might have a particularly robust state free exercise doctrine. I also agree with # 2. The issue with respect to # 3, though, is this: What if it turns out that an exemption regime limited to actual religious objections (and not personal ones) did not produce serious third-party burdens because the number of kids left unvaccinated would not be enough to compromise herd immunity? Such a regime would, I believe, be constitutional. But it does raise at least a question for folks who (a) argue that religion is not special, (b) it is generally unfair to limit exemption regimes to folks with religious motives, and (c) the best remedy to such unfairness should generally be to level up to include deep non-religious beliefs rather than level down to eliminate exemptions entirely. Perry On 02/01/2015 10:38 pm, Marty Lederman wrote: I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification: 1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a personal objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Vaccine objectors
I think part of the theory for requiring vaccination for school attendance is that you catch the whole population that way. And in the first generation being vaccinated, their parents all had the diseases. Vaccination is a case where pretty much every court would find a compelling interest. There is not just an obvious public health problem here; there is a huge free-rider problem, as people try to avoid the tiny risk of the vaccine and rely on everyone else being vaccinated. It is legislatures that have gotten this entirely wrong. On Sat, 31 Jan 2015 17:05:37 -0500 Marty Lederman lederman.ma...@gmail.com wrote: Sorry, I should have done a bit of research on the latter question before posting. Answer appears to be yes, it's typically merely a condition on, e.g., attending school (or being a health care worker) -- but even that has a huge impact on public health, at least where, as in Mississippi and West Virginia (!), the legislature does not permit religious and personal exemptions. Info on various state laws at these sites: http://www.washingtonpost.com/news/storyline/wp/2015/01/30/mississippi-yes-mississippi-has-the-nations-best-child-vaccination-rate-heres-why/ http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx http://www.historyofvaccines.org/content/articles/vaccination-exemptions http://www.immunize.org/laws/ http://www2a.cdc.gov/nip/schoolsurv/schImmRqmt.asp On Sat, Jan 31, 2015 at 4:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.nytimes.com/2015/01/31/us/vaccine-critics-turn-defensive-over-measles.html?hpaction=clickpgtype=Homepagemodule=first-column-regionregion=top-newsWT.nav=top-news Anyone know whether, in light of increasing public health issues such as this, have there been any recent proposals in state legislatures to repeal vaccination exemption provisions? If so, have they met with any success? Also, I assume that the laws in most states merely condition certain public benefits, especially access to public education, on being vaccinated. Is that correct, or do some states require vaccinations simplicitur? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
