Ari Armstrong, Civil Liberties, Coronavirus, Uncategorized

Armstrong: Threading the needle on religious exemptions

Does a medical facility have a legal obligation to permit staff to avoid taking precautions that help prevent the spread of a potentially deadly disease? Put that way, the notion seems absurd. Should it make a difference if a staff member claims that God told him to avoid the precaution? Or if the medical facility is government-run?

Such are the issues at stake in a recent Federal Tenth Circuit Court of Appeals decision regarding 2021 COVID-19 vaccination mandates by the University of Colorado Anschutz School of Medicine. In overruling a lower court’s decision, the appeals court blasted the Anschutz campus policy as “hostile and discriminatory” toward certain religious practitioners.

For details, see the news reports of Michael Karlik and Heather Willard as well as the court decision helpfully published by KDVR.

Contemplating religious exemptions

To begin to grapple with these complex issues, consider a simple case. These days, we all know about the germ theory of disease, and we know that washing hands helps prevent the spread of potentially dangerous microbes. (Judging from my experiences in public spaces, surprisingly few of us have learned about the benefits of coughing or sneezing into one’s sleeve rather than into the open air.) Although hand-washing is obvious to us today, when Ignaz Semmelweis first proposed it in the mid-1800s, many other doctors resisted.

Suppose, in our modern era, that you need a surgery. Before the operation, your surgeon comes out of the bathroom, a bit of toilet paper stuck to his shoe, and says, “I’m really looking forward to this invasive procedure today, as I think it will help you. Of course, I never wash my hands first, because I have a religious aversion to washing my hands. But don’t worry; I’ll pray really hard that you don’t get an infection.”

Unless you are insane, you would be outraged by this, and you would not consent to the surgery. Sure, the medical facility cleans its instruments and gives its patients antibiotics, mitigating the risks of the surgeon not washing his hands. Still, the surgeon has a moral obligation to take reasonable precautions to help keep his patients safe, and his employer has a moral obligation to maintain reasonable policies in such matters.

Now imagine that you storm into the administrative office demanding that the surgeon wash his hands prior to cutting people open. The head of the facility comes out to meet you, shakes his head sadly, and says, “I’m very sorry, but the law is clear: We cannot enforce safety protocols when a staff member asks for a religious exemption.” Clearly something has gone dreadfully wrong in this scenario.

The principle at stake is that someone cannot rightly use religious liberty as an excuse to break a reasonable law or to violate reasonable employment practices.

Comparably, we would not allow someone to viciously beat a child because he believes that God, via Proverbs 13:24, requires such beatings. Nor do we think an employer needs to respect someone’s “right” to mock and harass gay co-workers because God supposedly hates homosexuals.

Under the discrimination laws, an employer cannot impose a policy that unreasonably imposes on an employee’s religious practices. A few years ago, a Colorado meat packing plant settled a case over prayer breaks for Muslim employees. A hospital can require that a surgeon wash his hands, but it cannot require that, say, a Mormon surgeon not wear “magic underwear” that has no bearing on the job.

The case of vaccines

Is declining to get vaccinated for a dangerous disease during the middle of a global pandemic more like refusing to wash your hands or more like wearing the magic underwear?

As is obvious to anyone attending to reality (granted, this rules out a great many people), the vaccines dramatically reduced the risks of Covid and saved many lives. A new study out of CU says that the vaccines saved 800,000 lives in the U.S. Although the results have been couched as a win for social distancing, the study’s authors point out that, by itself, social distancing merely delayed problems. They write, “Without vaccines, behavior alone would have postponed infections, but in the end, nearly everyone would have been infected and subject to a high infection fatality rate from that first infection.”

True, the Johnson & Johnson vaccine caused a handful of deaths among women, and other vaccines caused some mild cases of myocarditis. On net, getting the vaccines was radically safer than not, as it offered good (not perfect) protection against the virus.

What’s more, Covid tests never were perfect, especially early during an infection, so medical staff getting vaccinated definitely made facilities safer for patients. Although most people got over Covid without much trouble, people in medical facilities tended to be at higher risk of serious infection, so extra caution was warranted. Covid killed well over a million people in the U.S.

Medical facilities requiring staff to get vaccinated as a condition of employment, then, was perfectly reasonable. Medical staff do not have a right to endanger the health and lives of their patients merely because they have some bizarre and irrational religious belief against vaccinations. Your free exercise of religion ends where another person’s life begins.

Discriminatory policies

The Tenth Circuit Court of Appeals essentially invites people to lie about their reasons for not wanting to get vaccinated by claiming a relevant religious belief. An employer can’t try to decide which religious beliefs are legitimate and which are not, the court ruled.

Here, the court is right: An employer, especially one part of a government institution, has no proper business trying to play high priest.

Although some people wanted an exemption because they bought into anti-vaccine nonsense, some really did have religious reservations about these vaccines. National Geographic explains:

“One common reason people give for religious exemptions is the link between vaccines and human fetal cells. It’s true that such cells have been used either in the testing or development and production of COVID-19 vaccines. The cells are grown in a laboratory and were derived from a few elective abortions performed more than three decades ago. These same cell lines are also used to test and advance our understanding of several routine drugs, including acetaminophen, ibuprofen, and aspirin, and they continue to be used for treatment research in diseases such as Alzheimer’s and hypertension.”

The Tenth Circuit Court of Appeals had a problem, not so much with CU requiring vaccinations, but with CU allowing exemptions in a discriminatory way.

The ruling states: “The government may not test the sincerity of an employee’s religious beliefs by judging whether his or her beliefs are doctrinally coherent or legitimate in the eyes of the government. Nor may a government employer discriminate against religion by implementing policies that exempt employees for secular reasons more readily than religious ones.”

In its policy effective September 1, 2021, CU clearly erred in trying to distinguish legitimate or sincere religious beliefs from bogus ones. Its September 24 policy, formulated in response to criticism, more-reasonably said “a religious accommodation may be granted based on an employee’s religious beliefs,” but not “if the accommodation would unduly burden the health and safety of other Individuals, patients, or the campus community.”

The court’s reference to “medical exemptions” for some people is baffling. Obviously, asking for an exemption on ideological grounds is not comparable to asking for an exemption based on a specific, objectively verified medical condition. The court also strangely compares staff on a medical campus, where heightened health precautions obviously are warranted, with students elsewhere.

The court is right that people with religious motivations generally should not be treated differently from people with non-religious ideological motivations, but we have to evaluate a case based on the relevant context. Someone in contact with medical patients obviously is in a different position than someone not in such contact.

The court does ask some excellent questions: “What about employees of Anschutz who work elsewhere, and whose jobs never require them to set foot on the Anschutz Campus? Why does the September 24 Policy apply to them, and how is that narrowly tailored to the interest of protecting the Anschutz Campus?” Great points!

Courts need to allow employers to “thread the needle” to implement reasonable policies protecting patients (or other clients) and staff. If we buy into the logic of the anti-discrimination laws, government can prevent employers from unreasonably infringing the religious liberties of employees. But people should not be able to invoke religious liberty as an excuse to harm or endanger others.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.


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