Althouse: "These applicants are not 'anti-vaxxers' who object to all vaccines... Instead... they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form..."

December 13, 2021

"These applicants are not 'anti-vaxxers' who object to all vaccines... Instead... they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form..."

"... and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.... [N]o one questions the sincerity of their religious beliefs... On August 23, one day before Governor Hochul took office, the State’s Public Health and Health Planning Council... proposed a revised mandate, this time with no religious exemption.... Governor Hochul acknowledged that 'we left off [the religious exemption] in our regulations intentionally.' Asked why, the Governor answered that there is no 'sanctioned religious exemption from any organized religion' and that organized religions are 'encouraging the opposite.' Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that 'everybody from the Pope on down is encouraging people to get vaccinated.' Speaking to a different audience, the Governor elaborated: 'How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.' The day before the mandate went into effect, Governor Hochul again expressed her view that religious objections to COVID–19 vaccines are theologically flawed: 'All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.' ... Today, we do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that, '[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in [matters of] religion.' West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)... Sometimes dissenting religious beliefs can seem strange and bewildering. In times of crisis, this puzzlement can evolve into fear and anger. It seems Governor Hochul’s thinking has followed this trajectory, and I suspect she is far from alone."

Writes Justice Neil Gorsuch, joined by Justice Alito, dissenting in Dr. A v. Kathy Hochul, decided today. Justice Thomas reaches the same position, without opinion, and the rest of the Court deny the application, without opinion.

Did Governor Hochul "prescribe what shall be orthodox in [matters of] religion"? She expressed religious opinions and declared that the applicants were wrong about religion, but the mandate is about requiring actions — getting the vaccine or suffering consequences — not requiring them to profess beliefs that they did not believe, which was the case in Barnette.

48 comments:

tim in vermont said...: As if the Pope were Catholic.; 12/13/21, 5:04 PM
Jason said...: Hi, Professor.

As usual, scratch a liberal, you’ll find a fascist. Every time.

Shame on you for trying to rationalize your way to tyranny.; 12/13/21, 5:14 PM
gilbar said...: but the mandate is about requiring actions — getting the vaccine or suffering consequences — not requiring them to profess beliefs

TECHNICALLY, isn't it about:
Being forced to consume Communion Wafers that are made with babies' blood?

I mean,
i'm sure You don't have a problem using 'vaccines' that are made with aborted fetus stemcell...
But Guess What? You Are Not Every Person; 12/13/21, 5:15 PM
Joe Smith said...: '...everybody from the Pope on down is encouraging people to get vaccinated.'

Well, many would question the Catholic bona fides of the Pope.

Cue the Jesuit jokes...; 12/13/21, 5:37 PM
Jake said...: Then claim a medical exemption. Mental health counts, no? This is all such nonsense in the name of nonsense.; 12/13/21, 5:39 PM
Kevin said...: How can you believe that God would give a vaccine that would cause you harm?

There they go again, thinking the US Government is God.; 12/13/21, 5:43 PM
Real American said...: The governor's actions are based on her contention that God wants us to be vaccinated and those who disagree have the wrong religious beliefs, citing the Pope as her authority. It wades into the thicket of having government officials decide matters of religious doctrine. Is there any doubt that if she thought the plaintiffs' religious views were correct that she'd allow for religious exemptions? Of course, she would. That was the previous standard! Now, she's leaving it up the government to decide which religious views are ok to have and which are not by punishing people with the wrong views. If that isn't prescribing what shall be orthodox in religion, then there's no such thing.

Hochul wants to punish the unvaccinated by forcing them out of their jobs and preventing them from getting unemployment benefits. Plaintiffs object because the state is forcing them to choose between their faith and a government order, just like the West Virginia State Board of Education was forcing people to choose between their faith and the government order demanding they stand, salute, and pledge allegiance to the flag each morning or be punished.

Does getting the jab constitute an "affirmation of a belief and an attitude of mind." It certainly does. If anything, this vaccine mandate is worse. The state is going beyond forcing you to profess a belief you don't have but to do so by getting some fluid injected into your veins against your will.; 12/13/21, 6:07 PM
Gahrie said...: So are we going to start forcing 7th day Adventists to accept transfusions?

Can we make Muslims or Jews eat pork?; 12/13/21, 6:16 PM
Achilles said...: When was the last time the people resorting to censorship and government power against their own citizens were the good guys?; 12/13/21, 6:17 PM
Eleanor said...: One does not have to be Catholic to have strong moral objections to the use of fetal tissue gathered from abortions. Where in the Constitution does it say that only people who belong to organized religions get to have religious beliefs?; 12/13/21, 6:34 PM
c365 said...: I get the feeling the Courts don't decide cases on principle, but rather a mingling of principle and fear of what would happen of they overturned unconstitutional laws based on principle.

They fear that letting the legislative branch do its job by passing an amendment for the states to ratify in order to give the federal government the power it asks for would take too long or leave DC impotent. So they fabric rights and powers where they don't exist. The problem is we now have a massive bureaucracy and legislative and judicial bulwark that's founded on this unstable foundation. Meanwhile, congress keeps pushing further and further ahead, assuming powers not granted to it, because the courts acquiesced long ago.; 12/13/21, 6:35 PM
Jason said...: It's not politicians' job to determine which religious objections citizens are and aren't allowed to have.; 12/13/21, 6:39 PM
Richard Dillman said...: The use of fetal cells in the production of the three vaccines used in the US is complex. The only one derived from fetal cells is Johnson and Johnson. The others are not derived from fetal cells, but they used fetal cells in early research and testing.; 12/13/21, 6:49 PM
Richard Dillman said...: The use of fetal cells in the production of the three vaccines used in the US is complex. The only one derived from fetal cells is Johnson and Johnson. The others are not derived from fetal cells, but they used fetal cells in early research and testing.; 12/13/21, 6:49 PM
Joe Smith said...: 'Where in the Constitution does it say that only people who belong to organized religions get to have religious beliefs?'

I think the difference is because a strong anti-abortion stance is Catholic doctrine.

Protestants in general have no 'official' objection if I recall correctly.; 12/13/21, 7:12 PM
Skeptical Voter said...: Look I've had my two shots of Moderna early in the year--and a "boosster" shot about a month ago. And I'll get my flu shot before the end of the year. So I'm not an anti vaxxer.

But Governor Hotshot has a lot of crust in saying, "God wouldn't want you to get a vaccine that hurt you." Well--maybe not God. But there sure as heck are a lot of state governors and federal officials, and more than one or two lying little federal weasels named Fauci that insist that you get a vaccine--whether it hurts you or not. I find it hard to believe that the medicos and pharmacy researchers who developed these vaccines consulted God on this or any other vaccine.; 12/13/21, 7:26 PM
Owen said...: I thought Cuomo was an arrogant fool. I thought Hochul couldn’t be worse.
I am reconsidering.; 12/13/21, 7:44 PM
Drago said...: As predicted, most notably and loudly by Robert Barnes at BarnesLaw, the Federalist nominees Barrett and Kavanaugh have proven to be extraordinarily deferential to the state when it comes to "emergency" medical mandates, even if those mandates run roughshod over individual rights.

Barnes predicted this would be the area of jurisprudence by those 2 that would most disappoint conservatives/libertarians/populists.; 12/13/21, 8:06 PM
tim maguire said...: It couldn't be clearer that the governor has granted herself the power to decide which religions are real and which religions are not. She could have defended eliminating the religious exemption without so clearly stating an unconstitutional purpose, but she didn't.; 12/13/21, 8:11 PM
Joe Smith said...: 'It couldn't be clearer that the governor has granted herself the power to decide which religions are real and which religions are not.'

If Scientology gets tax breaks then it's open season, I guess...; 12/13/21, 8:42 PM
Ignorance is Bliss said...: How can you believe that God would give a vaccine that would cause you harm?

The same God that gave us Covid in the first place? (Or, if you prefer the God who gave us the people who gave us Covid, and who also supplied them with the bat virus as a starting point)

The rivers are full of crocodile nasties,
And He who made kittens put snakes in the grass

-Jethro Tull; 12/13/21, 8:42 PM
Lucien said...: It’s almost like COVID-19 broke Ann’s brain, like Trump broke the brains of so many on the left.; 12/13/21, 9:34 PM
Lucien said...: It’s almost like COVID-19 broke Ann’s brain, like Trump broke the brains of so many on the left.; 12/13/21, 9:35 PM
Patrick Henry was right! said...: Did Pope Benedict say that? I must of missed it.; 12/13/21, 9:46 PM
Darleen said...: but the mandate is about requiring actions — getting the vaccine or suffering consequences

Ah, but having read all of Gorsuch's dissent, I noticed his cite of Minersville School Dist. v. Gobitis concerning the case of Jehovah Witness children refusing to say the pledge of allegiance.

In that case it was "stand and say the pledge or be expelled". And the court actually ruled AGAINST the children with the justification that the Constitution does NOT “compel exemption from doing what society thinks necessary for the promotion of some great common end.”

Gorsuch further notes: "Eventually, the Court changed course and overruled Gobitis. In West Virginia State Bd. of Ed. v. Barnette, the Court finally acknowledged what had been true all along - that our Constitution is intended to prevail over the passions of the moment, and that the unalienable rights recorded in its text are not matters to “be submitted to vote; they depend on the outcome of no elections.” 319 U. S., at 638. Instead, it is this Court’s duty to “apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.” Id., at 641. The First Amendment protects against “coercive elimination of dissent” and “was designed to avoid these ends by avoiding these beginnings.” Ibid."

All manner of things can be commanded under the excuse "for the greater good" and I don't necessarily doubt the sincerity of people who say so. But just how far is everyone willing to give up their individual liberty ... oh wait ... make others give up THEIR individual liberty under the "greater good" banner?

In reality, the greatest killer of American adults is heart disease. Just think of how significantly that could be reduced if we "only had the courage" to mandate certain actions of individuals.

For the greater good, of course.; 12/13/21, 10:18 PM
Darleen said...: BTW -- I've had my 3 jabs and am up-to-date on all my vaccines and annual jabs like the flu. With family in the medical field, too, I've always been pro-vaccine.

But I am also 100% anti-mandate, especially with all the blatant lying and manipulation of stats, reporting, panic p0rn and irrationality when it comes to therapeutics.; 12/13/21, 10:23 PM
walter said...: Truly sad that after all the short-cutted safety oversight and shitty/varying eficacy metrics, an appeal to religious issues becomes the strongest objection to regulatory capture and medical tyranny.
Good God.; 12/13/21, 10:36 PM
n.n said...: The vaccines were developed on a cloned cell test bed. Cells that were developed in a laboratory, which have not combined to form ("evolve") a viable human life, including neither a heart beat nor a coherent nervous system. The problem, however, is that the advocates of the modern model are using empathetic appeal (a la women's "health") and coercion (i.e. Twilight Amendment), that, unlike a woman's (and man's) choice (i.e. sex), forces a choice that follows the cargo cult of elixirs and masks, not the science of risk and immunity.; 12/14/21, 12:38 AM
n.n said...: God set up the universal model and set it in motion, then described a religion (i.e. behavioral protocol) to assure a functional ("good") outcome, and advised to follow the science, observe and exploit the physical world to improve your standard of life and reconcile with your spouse, your children, you neighbor. This is no different from the nominally "secular" models and religions dictated and enforced by mortal gods and goddesses, with the exception that God made participation voluntary and rejection with self-evident and recorded risk. So, thou shalt observe and comprehend the benefits and risks of non-sterilizing "vaccine(s)" and proceed accordingly. Thou shalt not abort for social, redistributive, and fair weather causes. A human life is viable from and until the first heart to the last heart beat, from the emergence of a coherent nervous system to its dissolution.; 12/14/21, 12:49 AM
cyrus83 said...: The governor did in fact prescribe what shall be orthodox in religious matters, in the sense that she is refusing to recognize as valid any religious belief which is in conflict with her mandate while also citing religious authorities in support of her position. A negative declaration is just as much a prescription as a positive one.

The chickens will come home to roost. It is winter, cases will get worse for the next few months no matter what the governor does, and firing all these health care workers right now during the busy season for respiratory illnesses is going to stretch resources to the limit. Worth noting, several healthcare companies and governments elsewhere are bringing back the healthcare workers they fired over this as staffing shortages stretched them to the limit. Hochul will cave eventually if she wants to be re-elected if the workers call her bluff and walk.; 12/14/21, 1:11 AM
Ficta said...: @Gahrie I assure you, Adventists have no problem with blood transfusions. They're pretty big on modern medicine in general, in fact. Noted neurosurgeon Ben Carson is an Adventist. I think maybe you're thinking of Jehovah's Witnesses.; 12/14/21, 2:10 AM
Jason said...: No religious objection to abortion link allowed?

Fuck it. Burn it down.; 12/14/21, 3:06 AM
tim maguire said...: Joe Smith said...If Scientology gets tax breaks then it's open season, I guess...

It was open season long before Scientology got a tax break. It’s built right into the constitution.; 12/14/21, 4:51 AM
RMc said...: I'm strongly pro-vax, got all three, as did my wife. In my view, the more vaccinated people the better. So it annoys me to no end to see so many pro-vax people and officials being complete jerks about it. No, the government can't force you to get the shot if you don't want to; neither can God. When President Angry Grandpa got on TV and started raving on the subject, I thought, "Nice job, genius. You just drove a million people away from getting vaccinated."

Maybe we need to focus on treatment options for COVID instead...?; 12/14/21, 6:32 AM
guitar joe said...: I'm with Darleen. I'm fully vaxed, think it's the thing to do, but am utterly opposed to mandating it. Now, I do think things get sticky when employers mandate it. I used to tell my employees that free speech, which I ardently defend, ends at the door of the office. The company doesn't want you to say certain things and can take appropriate action, which they usually document in company guidelines. If you work in health care and the hospital says that for the greater good of co-workers and patients you should be vaccinated, I'm not sure you have much ground to stand on if you refuse and later take legal action. Ms. Althouse? Any insight on that?; 12/14/21, 7:05 AM
JAORE said...: 'How can you believe that God would give a vaccine that would cause you harm?"

Because I remember Thalidomide.; 12/14/21, 7:09 AM
Danno said...: Joe Smith said...Protestants in general have no 'official' objection if I recall correctly.

You should do your research before asserting such malarkey. Many Protestant denominations are very much pro-life. Maybe not the mainstream ones that are losing members at astonishing rates but Southern Baptists and evangelical groups and many mainstream split-off denominations, as well as inter-denominational and non-denominational churches (i.e. the new megachurches) are antiabortion.

Don't assume things that are not facts.; 12/14/21, 8:25 AM
Tina848 said...: I work in a Biologics lab - we have all kinds of cells we grow for testing. The lines of cells are certified, even fetal cells, since we are a GMP facility. Some of the cell lines are over 40 years old. We did a lot of the research for the larger Pharma companies (they outsource work - did not do it alone) for the vaccines. All medicines and injectables are done this way.; 12/14/21, 8:53 AM
tolkein said...: I paid quite a bit of attention to the question about whether the vaccines used aborted foetus cells, because that would have been a no-no. Abortion is a grave sin, prohibited in the Didache, very early Christian teachings, and therefore by Catholics, Orthodox and Anglicans.
The chain between original research and the AZ and Moderna vaccines (I've had 2 AZ and a Moderna booster)is too far for it to be causal, but I did check. Fortunately the Pope agrees. But I do understand Christians who take a different view.; 12/14/21, 8:54 AM
BG said...: Dear Gov. Hochul,
Adiaphoron, as used in the church. Look it up.

Blogger Joe Smith said..
I think the difference is because a strong anti-abortion stance is Catholic doctrine.

Protestants in general have no 'official' objection if I recall correctly.
There are very conservative Lutheran synods that are anti-abortion.; 12/14/21, 9:06 AM
Critter said...: What Darleen said.; 12/14/21, 9:10 AM
Joe Smith said...: 'It was open season long before Scientology got a tax break. It’s built right into the constitution.'

This is a bad take.

Just calling your organizations a 'religion' doesn't make it so for tax purposes, which is what I was referencing.; 12/14/21, 10:13 AM
Jason said...: It's not the job of any government bureaucrat to decide what is and what isn't a legitimate religion, nor belief, for other people.; 12/14/21, 3:12 PM
Jason said...: These people who are claiming the Pope has no problem with vaccine are liars. Pope Francis has no problem with Catholics who refuse to take the vaccine because of its connection to abortion. He's just saying the Church isn't requiring them to do so. He also reiterated that abortion is very grave sin and Catholics should have no part of it.

The reason he chose not to pronounce, ex cathedra, that Catholics must not take the vaccine is probably because he forgot all the St. Augustine he ever read.; 12/14/21, 3:16 PM
Václav Patrik Šulik said...: It strikes me that only Darleen comments on West Virginia State Bd. of Ed. v. Barnette. This is a case I frequently read, in large part because I agree with both the majority and the dissent. Justice Frankfurter’s dissent begins:
“One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should whole-heartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. They duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person.”
And he was writing in 1943, when the world was becoming aware of the Nazi holocaust.
But, as Justice Gorsuch (and Darleen) note, Barnette overturned a recent precedence – Gobitis in 1940. (So much for the canard that stare decisis is inviolable.)
With all due respect, Ms. Althouse (and this isn’t an idle cliché – I have great respect for you and your experience, knowledge, and opinions), Barnette wasn’t limited to mere belief – it involved actions which were contrary to the Jehovah’s Witnesses’ religious exercise. It compelled them to stand and pledge allegiance to the flag. (Robert Jackson: “Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: 'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.' They consider that the flag is an 'image' within this command. For this reason they refuse to salute it.” )
I think another passage from Barnette warrants contemplation:
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.; 12/14/21, 4:40 PM
Nancy Reyes said...: We had an editorial in the Philippine Inquirer stating that Catholics could use the Sinovax (Chinese vaccine) because it did not use any fetal cells in it's development.

If true, "good" Catholics could use it.

Of course, Sinovax, which has been widely used in several countries, did not stop the epidemic, but one does wonder if a lot of the anti vax propaganda, at least here in the third world, comes from Chinese bots.

Sinovax uses an inactivated virus to induce immunity. This technology has been around since Louis Pasteur made Rabies vaccine.

for what it's worth: All vaccines are not the same (something that is usually ignored in the debates). Some are mRNA (experimental), others like AstraZeneca and Sputnik vaccine use another virus template to induce immunity, a technology that has been around for over a decade and enabled the new Ebola vaccine that stopped the epidemic in Central Africa in recent years.

I am double vaxed with the AZ (British) vaccine by the way, and think the kerfuffle over the vaccine is a bit exaggerated.; 12/14/21, 4:47 PM
mikee said...: My sister, a Tridentine Catholic, is personally COVID antivax for this reason, despite having vaccinated all her children normally up to this point. As I told her, if you don't want to take the COVID vaccine, you can find a reason not to. And then I stopped discussing it with her. She still sends me texts and emails with links to long diatribes on the subject, along with urgent pleadings for me to save my soul, but she is not the boss of me. As I have told her since she was a child.; 12/14/21, 5:11 PM
Václav Patrik Šulik said...: I know this post is several days old, but I have one additional comment. Those of you hoping the Court will uphold the "essential ruling of Roe v. Wade" - that the constitution creates a right to abortion, should be afraid of this ruling.

If Roberts, Kavanaugh, and Barrett are unwilling to protect the First Amendment free exercise of religion, what makes you think they will be willing to protect a right that only appears in the shadows and penumbras of the constitution?; 12/15/21, 7:55 AM