Reiss-65.6
Reiss-65.6
Reiss-65.6
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K - <strong>Reiss</strong>_24 (E. GOLDBERG).DOC (Do Not Delete)<br />
8/17/2014 4:56 PM<br />
August 2014] EXEMPTIONS FROM IMMUNIZATION 1557<br />
individual religious beliefs led to broader religious exemptions. 35 The<br />
breadth of current religious exemption laws in many states—and the<br />
limits on the ability of officials to investigate the validity of alleged<br />
religious beliefs opposing immunization—make religious exemptions<br />
especially vulnerable to abuse. While the Supreme Court found that<br />
“religious” can encompass “moral, ethical, or religious beliefs about what<br />
is right and wrong,” that are “held with the strength of traditional<br />
religious convictions,” 36 even that broad definition is not limitless:<br />
claiming a religious exemption when your reasons for not vaccinating are<br />
(often unfounded) safety concerns would be abusing the exemption.<br />
This Article argues that such abuse does, indeed, occur, and<br />
probably frequently. Even if states value religious freedom, they may not<br />
be willing to allow religious exemptions if the majority of those taking<br />
advantage of them are refusing vaccines for reasons other than religion.<br />
Demonstrating abuse is difficult, since people are naturally hesitant<br />
to openly admit that they are lying (although some people do). Hence,<br />
comparing the rates of those who have sincere religious beliefs that are in<br />
tension with vaccination with those who are using a religious exemption<br />
to mask other reasons is problematic. However, this Article draws on<br />
three types of evidence to support the claim that abuse is probably<br />
widespread. First, this Article examines existing studies and survey data<br />
about the reasons people do not vaccinate, highlighting that reasons<br />
given are generally not religious. Second, this Article demonstrates that<br />
mainstream religions support vaccination, or at least do not oppose or<br />
prohibit it. While our jurisprudence—correctly in my view—does not<br />
require that the exemptor’s religion oppose vaccination, when a given<br />
religion supports vaccination, we may plausibly suspect religious<br />
exemptions claimed by devoted practitioners of that religion to be for<br />
other reasons. Finally, the Article makes use of Facebook comments<br />
from public anti-vaccine pages on which members openly stated that they<br />
lied to obtain religious exemptions.<br />
This Article proceeds in three parts. Part I describes the legal<br />
framework governing religious exemptions. Under U.S. jurisprudence,<br />
courts allow states to provide a religious exemption, but do not require it.<br />
At the same time, if a state does adopt a religious exemption, our<br />
jurisprudence makes it very difficult to prevent abuse. It does so by<br />
adopting positions that are reasonable; courts do not want to allow states<br />
to police beliefs. But the effect is to make it difficult, and in a number of<br />
states completely impossible, to refuse exemptions that officials believe<br />
are suspect. Part II marshals the evidence supporting the claim that many<br />
35. See infra Part I.B–C.<br />
36. Welsh v. United States, 398 U.S. 333, 337–40 (1970) (discussing what religious means in the<br />
context of conscientious objectors to the draft).