There Is No Religious Right to Refuse Vaccines
New York just eliminated all religious exemptions for mandatory measles vaccination. It was the right thing to do. There is no constitutional basis for requiring a religious exemption. Nor, in my view, are there any plausible religious arguments against mandatory vaccinations to stop the spread of communicable and potentially lethal diseases.
Let’s begin with the religious arguments: ______________.
I have left this blank because there are none. I read widely in religious literature, especially in Jewish literature. I have never come across a coherent religious argument against mandatory vaccination for deadly contagious diseases.
Jewish law has an overriding religious concept called “pikuach nefesh,” which elevates the protection of human life over virtually every other value.
The Jewish Bible is scrupulous in demanding protection against communicable diseases such as leprosy. There is nothing in Jewish law that requires the parents to turn their children into “typhoid Marys,” infecting friends, family, classmates, and neighbors.
The claimed religious argument is rejected by the vast majority of rabbis of every denomination, including by the vast majority of ultra-Orthodox and Hasidic rabbis. Only a handful of marginal rabbis preach this anti-Jewish and anti-life philosophy.
I challenge any rabbi to debate me on the Jewish religious law regarding vaccination and communicable diseases. He will lose the debate, because there is simply no basis in Jewish law for any such argument. Religion is being used as a cover for a misguided political, ideological, conspiratorial, and personal opposition to vaccination. Don’t believe any rabbi who tells you otherwise.
Now we can turn to the Constitutional argument: ______________.
Another blank, because there is none that would permit parents to refuse to vaccinate a child against a communicable disease, even if there were plausible religious reasons for their decisions (which there are not).
There are three basic categories of compelled medical intervention about which the Constitution has something relevant to say:
The first category involves compelling a competent adult to take lifesaving measures to prevent his own death. There are strong Constitutional and civil liberties arguments against such compulsion. It really doesn’t matter whether the opposition to such measures is religious or philosophical. An adult Jehovah’s Witness may have a strong First Amendment claim against receiving a blood transfusion to save his or her life. But an atheist would also have a compelling argument. Indeed, Jewish law is more protective of life than American Constitutional law: Jewish law prohibits a competent adult from refusing a life-saving medical procedure. It also prohibits suicide.
The second category is where a parent is being compelled to employ lifesaving medical procedures to save the life of a child. The courts generally require the parent to save the life of the child. So a Jehovah’s Witness child could be compelled to receive a blood transfusion without regard to their parents’ religious objections.
Now we get to the third category, the one about compelled measles vaccination. A parent does not have a Constitutional right to refuse to vaccinate a child against a highly contagious and potentially lethal disease that might kill that child (category 2) but might also kill a friend or neighbor who doesn’t share the parents’ religious view (category 3).
That is about the easiest Constitutional question I have ever confronted. There is no compelling argument against requiring a child to be vaccinated against communicable diseases regardless of the parents’ wishes and regardless of whether their objections are religious or secular.
Theoretically, a parent could move their case from category 3 to category 2 (or an adult could move it to category 1) if there were an assurance that they would spend all their lives in a bubble that prevented contagious diseases from spreading. Or perhaps in a community of anti-vaxxers who would spread the disease only to other anti-vaxxers. The difference is between hurting oneself and hurting others. The common analogy is that a smoker in a closed public space might have the right to inhale, but not exhale.
This civil libertarian position goes back to John Stuart Mill and even further in intellectual history. I can think of no thinker in the history of the world who has ever advocated the anti-vaccine position. There is no coherent argument — religious, Constitutional, civil libertarian, or commonsensical — in favor of allowing people to refuse to be vaccinated against communicable diseases. So why then did so many state legislators in New York vote against the bill? Politics, not principles.
Alan Dershowitz is Felix Frankfurter Professor of Law, emeritus, at Harvard Law School.
A version of this article was originally published by The New York Daily News.