COVID Shot Federal opt-out not as clear as Democrats claim | New York News
By JOHN O’CONNOR, AP Political writer
SPRINGFIELD, Illinois (AP) – Lawsuits against Illinois over the required COVID-19 vaccination were mounting, and the reason was clear: the leverage of the state Health Act’s legal remedies for remorse when expressing religious objections to the shot and invoking sanctions, including job loss associated with refusal.
Democrats who control the General Assembly went to work last month to change that, but publicly dodged the complaints as a reason. They said their action had nothing to do with restricting freedom of religion. Anyone who is fired from a job for religious reasons after a vaccination refusal can file a lawsuit under one of at least four different federal laws, they said.
“People will be able to request a religious exception well after this law comes into effect …” claimed Senate President Don Harmon, a sponsor of the change, in the debate. “The religious exception exists in federal law and remains unaffected.”
Constitutional scholars disagree with this claim. None of the laws cited by Democratic Governor JB Pritzker’s office – the prohibition of discrimination in the workplace under the Civil Rights Act, the Americans with Disabilities Act, or the protection of age or genetic information – would likely raise a religious objection to the COVID- Recognize 19 vaccine, they say.
But if federal religious protection is available, why the long nights and hours of debates at the end of the fall legislature session to clarify that Illinois law of conscience does not cover opposition to the coronavirus vaccine?
“It wouldn’t do much good to change it if the same exceptions were available elsewhere,” said Douglas Laycock, a law professor at the University of Virginia whose writings on religious freedoms have been compiled into five volumes. “They aren’t unless the Supreme Court changes the law.”
Cases contesting compulsory vaccination in Maine and New York are close to court review.
The state’s Right to Remorse in Health Care Act, passed in 1978, has long been seen as a protection against consequences for doctors who refuse to perform abortions on moral grounds.
The Democrats’ clarification, which has yet to be sent to Pritzker for his OK, would ensure that the legal ban on religious objections does not apply to denial of the COVID-19 vaccine. Lawsuits across Illinois – nine so far in which the state is a defendant and two private parties overseen by the attorney general – are calling for penalties for refusing vaccination based on the law of conscience.
But like Harmon, the House sponsor, Rep. Robyn Gabel, an Evanston Democrat, took a hands-free approach to the challenges of religious freedom.
“The change … (says) nothing in this section is intended to affect any right or remedy under federal law …” said Gabel. “The federal religious placement exemption is still available to employees who have religious objections to vaccines.”
The problem is that federal regulations have been interpreted narrowly – or they don’t exist.
Title VII of the Civil Rights Act prohibits discrimination in the workplace based on religion, said Nelson Tebbe, a law professor at Cornell University. However, an employer doesn’t have to abide by it if it could harm other workers – which clearly could mean mixing up with an unvaccinated colleague, he said.
Regarding the ADA, Tebbe said, “I don’t know that a religious objection could qualify as a disability.”
Katherine Franke, a law professor at Columbia University in New York who specializes in gender and sexuality law, and rights and religion, noted that a religious exception under the Civil Rights Act has not been considered in court.
But it clearly excluded age discrimination laws in employment and laws discriminating against genetic information, two federal laws that Pritzker’s office cited as applicable.
Pritzker and the Democratic Legislature would find a better reception for their position by simply referring to the Free Exercise Clause, the influence of which has grown with the spread of COVID-19.
At a joint hearing of the US House of Representatives subcommittee late last month on vaccine requirements and accompanying employer accommodation, Laycock testified, “Vaccinations are a simple case of denying an exception. … Serious threats to human life are overriding government interests.”
And the US Supreme Court agreed to it as early as 1905 – “at least until our current political polarization,” added Laycock.
That track record is being scrutinized in Maine and New York, where federal courts have so far upheld vaccination mandates for health workers in New York and hospital and nursing home workers in Maine without offering exceptions for religious exceptions.
In the Maine case, the US Supreme Court declined emergency intervention. Judges Amy Coney Barrett and Brett Kavanaugh, appointed by former President Donald Trump, advised caution in granting “extraordinary relief” in a first case of its kind.
“Religious applicants say, ‘If you can take alternative measures in relation to people who do not have a vaccination for medical reasons – such as wearing masks and wearing tests – then you should be able to apply those measures to religious applicants”, said Tebbe.
AP researcher Rhonda Shafner in New York contributed to this.
Follow political writer John O’Connor at https://twitter.com/apoconnor
Selected COVID-19 vaccination lawsuits based on the Illinois Health Care Right of Conscience Act: https://bit.ly/2ZViieC
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