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Vaccinations and eliminating religious exemptions | Marvin Zuker

Tuesday, September 21, 2021 @ 8:32 AM | By Marvin Zuker

Marvin Zuker %>
Marvin Zuker
On Thursday, Sept. 9, 2021, the Los Angeles Unified School District, the second largest in the United States with 600,000 students, voted to require COVID-19 vaccines for all students aged 12 and older who attend school in person. All eligible students must be fully vaccinated by the time they return from their winter break which runs from Dec. 17, 2021 until Jan. 11, 2022. Vaccines are not required for those students who opt for home schooling.

In August 2021 the U.S. Food and Drug Administration granted the Pfizer vaccine full approval for use in children aged 16 and older. It can be used only for those 12 to 15 where there is an emergency-use authorization. Vaccination offers the strongest protection available to students. Recent surveys suggest that just half of American parents say they probably or definitely will vaccinate their children against COVID-19. (See 2021 Education Next survey).

Parents can and should make decisions for their children. What parent doesn’t? They are presumed to be in the best position to make decisions in their child’s best interests. But parents do not own their children. Children have individual rights. In the case of B (R) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315, involving the right of a parent to refuse a blood transfusion for their child, the Supreme Court of Canada found that choosing medical treatment for one’s child is a “fundamental aspect” of freedom of religion but the court also reiterated that like all rights in the Charter, freedom of religion is not absolute (see para. 85).

The Canadian Charter of Rights and Freedoms (or Charter) is part of the Canadian Constitution. Its 40th anniversary is almost here. Freedoms that we enjoy include freedom of conscience and freedom of religion. Most Charter rights are “negative” rights. If the government does something that interferes with them, then these rights may be violated. Freedom of religion is protected by letting people practise religion however they wish, unless somehow the government does something that threatens their religious practices.

No right is absolute. We now know after these 40 years that there should be a balance between an individual’s rights and the greater good of society. Section 1 of the Charter says that all of the Charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (see R. v. Big M Drug Ltd. [1985] 1 S.C.R. 295, R. v. Oakes [1986] 1 S.C.R. 103 and more recently R. v. NS 2012 SCC 72 which was an example of balancing a witness’ right to religious freedom (s. 2(a) of the Charter) and an accused’s right to a fair trial (ss. 7 and 11(d) of the Charter).)

At the present time, children under the age of 12 do not have the option of getting a coronavirus vaccine. That option may exist for those 12 years and older. For the parents of these children should there be any option? Do we wait for the “pandemic of the unvaccinated” or ultimately address the apparent delta variant head-on?

In the Immunization of School Pupils Act of Ontario (RSO 1990, c.1.1), in the “Definition” section, a “statement of conscience or religious belief” means a statement by affidavit in the prescribed form by a parent of the person named in the statement that immunization conflicts with the sincerely held convictions of the parent based on the parent’s religion or conscience. There is also of course a “statement of medical exemption”.

Section 3 states in part:

(1) The parent of a pupil shall cause the pupil to complete the prescribed program of immunization in relation to each of the designated diseases. (Note that COVID-19 is not part of this legislation yet.)

Same, statement of conscience or religious belief
(3) Subsection (1) does not apply to a parent who has completed an immunization education session with a medical officer of health or with a medical officer of health’s delegate that complies with the prescribed requirements, if any, and who has filed a statement of conscience or religious belief with the proper medical officer of health.

Besides adding mandatory vaccination to this legislation (to be phased in over time), I would argue for the elimination of the religious exemption, even beyond the secondary school level. But that is another story. Making in-person school attendance conditional on immunization has been viewed as the best way to ensure a vaccinated citizenry. (See Douglas Diekema, “Personal Belief Exemptions from School Vaccination Requirements,” 35 Annual Review of Public Health, 275, 278 (2014).

The Education Act of Ontario clearly provides for the authority to mandate school attendance and to require students attending school to be in good health so as not to endanger others. Your religious exemption may well expose me to great health dangers. COVID-19 is highly transmissible and lethal. The vaccines are safe and effective. Vaccines are a justifiable intrusion on our autonomy, if not bodily integrity. We may have the fundamental right to make our own health-care decisions but these rights are not absolute. They do not include the right to harm others.

I would agree that any vaccination mandate should have exceptions for those for whom the vaccine is medically contraindicated, such as those who are allergic to it.

Religious freedom is not an unfettered licence to inflict harm on others.

Following the last outbreak of measles in New York state, then Gov. Andrew Cuomo in 2019 signed into law removal of the religious exemption for the state. In supporting the repeal, James Skoufis, one of the law’s sponsors, stated in part: “Let me be clear: There is not one religious institution, not a single one, that denounces vaccines.” Curbing the spread of COVID-19 is “unquestionably a compelling interest.” (See Roman Cath. Diocese of Brooklyn v. Cuomo 141 S. Ct. 63 at 67 (2020) (per curiam). See also Prince v. Mass. 321 U.S. 158, 166-167 (1944) and even earlier in the United States, Zucht v. King 260 U.S. 174, 176 (1922) citing Jacobson v. Mass. 197 U.S. 11 (1905) and just last month, August 2021, Klaassen v. Trustees of Indiana Univ. 7 F.4th 592 (7th Cir. 2021)).

Is it discriminatory to deny a religious accommodation exception to vaccination if the requested exception can be reasonably and simply accommodated? What constitutes “religion”? Beliefs such as “My conscience forbids me from taking the vaccine”? or “My religion tells me that this vaccine is experimental”? Or “G-D sets the rules for my body, not people”? Our courts have adopted a subjective and supposed sincerity test for determining whether a particular practice or belief falls within freedom of religion. (See e.g. R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713, Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37, and Syndicat Northcrest v. Amselem 2004 SCC 47).

School personnel lost to COVID-19, known as @losttocovid on Twitter, keeps a daily record of educators who have died from COVID-19.

The reality should be that one is too many. A name, a job title, a date of death, a black and white photograph — these do not reflect the reality of the grief. Students who lost siblings, who lost parents, who lost grandparents to COVID-19 must not be forgotten.

Irreparable harm and the public interest means removal of the religious exemption.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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