Two major stories about what power the government has to control what happens inside a person’s body are making headlines this week.

The Courts are Unlikely to Require Religious Accommodation When it Comes to Avoiding the COVID-19 Vaccine

The Delta variant of COVID-19 has been wreaking havoc around the world – and part of the reason is that this is a controversial statement. Over the past year-and-a-half it seems that most people on social media have earned both their medical and law degrees. For the most part, churches and businesses are open now, and the question is whether they will (or can) require people to wear masks or take the COVID vaccine.

From a liability standpoint, businesses will likely want to ensure that they are operating safely. Last March, Matilde Ek, 70, an employee of the See’s Candies factory in Carson, California, contracted COVID-19 at work and stayed home. In the process, she allegedly passed the disease to her husband, 72, who died from it. She also claims to have passed the virus to her daughter who survived. She alleged in her complaint that “Defendants knew and should have known that their failure to take appropriate and necessary safety mitigation measures would increase the known and foreseeable risk that their workers, like plaintiff, would become infected in the course and scope of their work for defendants, and carry said viral infection home infecting one or more of their family members.”

At the time of the exposure, in March 2020, the employer was not requiring social distancing or mask wearing, according to the pleadings. That’s enough to create an issue of fact to be tried.

Many organizations are very concerned that extending the employer’s liability beyond the employee to civil liability for family members could incur significant cost, and the employers along with the California Chamber of Commerce, are arguing that this violates the “derivative injury rule” that could keep the case within the limited liability jurisdiction of the workers’ compensation system rather than civil litigation.

Why am I mentioning this case? Because a lot of people are seeking “religious accommodation” of all COVID-19 restrictions from being required to wear masks, to social distance, to being vaccinated. Under the decision that we have often cited, Trans World Airline v. Hardison (1977), the Supreme Court held that so long as an employer incurs an “undue hardship” that constitutes a “di minimis cost or expense” in providing religious accommodation, it need not accommodate, even in the unlikely scenario that it is established that none of these preventive measures work.

The bottom line is that even if a person can build up a religious case for not participating in COVID protections, employers and public venues will likely never be ordered by the courts to provide religious accommodation.

Speaking of religious accommodation –since religion is the “last ditch effort” to evade COVID-19 rules for those who cannot obtain a medical exemption, many people are suddenly very interested in what their religion teaches about COVID. The reality is, few will find a home for this notion in their religious texts or in their past activities. People who believe that the vaccine contains fetal human cells or derivatives have the wrong facts. While it is true that the vaccines were tested on a strain of HEK-293 derived from kidney cells from the 1970s, those cell lines have been cultured and are used to test almost every medication available today over the counter including Motrin, Advil, Pepto Bismol. Even Hydroxychloroquine and Ivermectin have been tested using the HEK-293 lines.

But even more concerning should be the fact that people are propounding a “religious accommodation” argument that is virtually guaranteed to fail – and in so doing may weaken legitimate religious accommodations efforts in ideas that do find their home in religious texts, including holy day observance, labor union exemption, religious dress requirements, military conscientious objection and other areas. In each of those areas, those seeking accommodation are often accused of trying to get out of doing something they don’t want to do (like working on Saturday, paying union dues, or frontline combat), and their motives are questioned. When they add something that is on its face an attempt at a legal workaround, it weakens legitimate religious accommodation requests significantly.

I realize that some people will oppose this, “How dare you judge the sincerity of my ‘religious belief’” but it may be better to judge now than wait until the courts do so. If the courts decide to investigate sincerity, based on a clear intent to circumvent the law by appealing to a religious exception, they could set up a system for evaluating sincerity or outright deny the accommodations. In the end, we could find that religious accommodations we have worked in favor of for decades are severely hampered.

If people want to find a legal argument to overcome TWA v. Hardison and other lawsuits, they may do better with a “privacy right” or “bodily autonomy” law.

Supreme Court Decision in Texas Case Could Weaponize Cancel Culture in Blue States

Speaking of privacy rights and “bodily autonomy,” for a few reasons I will outline briefly below, a Supreme Court decision not to act may cause both red and blue states to consider new laws that will give private individuals the right to file lawsuits against people who act within recognized constitutional rights.

Before I go further, let me state the caveat that the constitutional and moral status may be different. But the law is beholden to legal precedent, while morality is accountable to a much Higher Authority.

To continue – under this scenario, a blue state could theoretically pass a law that allows people to sue others for owning firearms or to sue people for “offensive” speech and weaponize “cancel culture” by giving social justice warriors the ability to file lawsuits to compel speech.

When I first heard that Texas had passed an abortion law that would deputize private citizens to sue people involved in individual abortions after six weeks for up to $10,000 and receive attorney fees if they win, and that defendants would be unable to get their fees if they won, I thought it was a legal “poison pill.” I thought that there was no way that the law would stand in the courts and that it may have been written this way to appease pro-life activists but be “too strong” to be upheld.

To my surprise, the U.S. Supreme Court did not issue an injunction (by an apparent 5-4 ruling), and the law is now in effect. The Court reasoned (we see this only as it is reflected in the dissent) that since nobody had filed a case allowed by the statute, there is no issue “ripe” for litigation.

Another case scheduled for hearing this fall at the Supreme Court will take direct aim at Roe v. Wade. The Court could have issued an injunction before the other case was heard and then addressed the whole issue at once. In that case, Dobbs v. Jackson Women’s Health Organization, the state of Mississippi passed a law in 2018 that banned almost all abortions after 15 weeks of pregnancy. Lower courts have blocked the law, citing Roe, and the Supreme Court has agreed to hear the case this fall.

Remember that Roe v. Wade was a decision that targeted states that prohibited abortion – it did not affect states where abortion was already legal. If Roe v. Wade is overturned, some states will immediately outlaw abortion, while others will keep abortion legal.

The enforceability of abortion laws is a significant problem – and the reason that Roe v. Wade was heard in the first place was that Texas had passed a law in 1854 criminalizing abortion, except by “medical advice for the purpose of saving the life of the mother.” Roe had sought an abortion, and a physician arrested for performing abortions – and the doctor had said that he could not tell whether the reasons for the abortions fell within the “saving the life” exception. He claimed that the law was “vague and uncertain” and violated the right to doctor-patient confidentiality when the state investigated his rationale.

Although abortion is typically seen as involving one person – the pregnant woman – the interests of the father in his offspring or not paying child support, the interest of the life rights of the unborn child, and the government’s interest in preserving life and health come into play.

Similarly, when it comes to vaccines, there are many interests at play, including those who do not want to work near somebody who may give them the virus, the interest of the individual in bodily autonomy and privacy, and the interest of the state, workers’ compensation, and health insurance companies in avoiding unnecessary death or medical costs.

The Venn Diagram of support for vaccine autonomy and abortion rights would likely be quite interesting. Some may support both, some neither, and some one or the other. But it will be interesting to see where this goes next – and we will continue to follow these stories.

Thank you for reading.


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