Religious Exemptions for Vaccines under Title 7 and Private Employers in the Health Care Field

It’s heartbreaking what’s currently happening to health care workers across the country. I’ve talked to dozens here in West Virginia who are currently facing losing their careers due to their health care employer – usually hospitals – mandating the current vaccines. Ironically, one can’t just choose to refrain from taking these vaccines because they’ve undertaken a common sense rational risk vs. reward analysis based on their own circumstances and health care situation, but rather only for religious reasons, which may, nor may not have any basis in rationality. But as with much of civil rights law, the only realistic way of stopping government tyranny is to somehow connect their actions to religious restrictions, because doing so triggers statutory and constitutional protections.

Almost all of the religious exemption applications I’ve seen thus-far have been denied by the large healthcare employers. Outrageously, what I’ve mostly seen is that these HR departments have been essentially arguing theology with these employees. They no doubt assume that the employees are lying, or being un-sincere about their beliefs. They’ve been arguing to the employees that they actually DON’T have a religious exception. They cite the fact that the pope is encouraging people to be vaccinate, etc.

Fortunately, however, the law generally provides that employees aren’t required to follow any particular religion or theology. The requirements are subjective to the employee. The only requirement is that the beliefs, which could just be strongly held moral beliefs, must be sincerely held by the employee. Thus, it doesn’t matter what the Pope said, or even what the pastor of an employee’s church said. What matters is subjective sincerity.

I’ve posted about the New York lawsuit which has currently obtained a temporary restraining order protecting New York health care employees from being fired pursuant to the NY state mandate currently in place. Whenever the ultimate ruling comes in that case, employees will have some legal guidance on what their legal rights may be in the current situation. Until that happens, it makes sense to pay attention to the claims being made by the physicians and other health care workers who are plaintiffs in the case.

The religious exemptions in the NY case surround the fact that the vaccines at issue either utilize, or did utilize in their development stages, fetal cell lines derived from abortions. Here are the details on the three separate vaccines:

  • Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).
  • Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.
  • Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Based on those indisputable facts, these are the grounds upon which the physicians in the New York lawsuit filed by the Thomas More Society base their religious exemptions. I highly suggest that health care workers who are pursuing religious exemptions utilize these points in countering the theological exemptions currently being presented by tyrannical health care employers:

  • They oppose abortion under any circumstances, as they believe that abortion is the intrinsically evil killing of an innocent, and thus they also oppose the use of abortion-derived fetal cell lines for medical purposes and abortion- derived fetal stem cell research.
  • It would be a violation of their deeply held religious beliefs and moral consciences to take any of the available COVID-19 vaccines given their use of abortion-derived fetal cell lines in testing, development, or production.
  • By receiving one of the COVID vaccines currently available, all of which are abortion-connected, they believe they would be cooperating with the evil of abortion in a manner that violates their consciences and that they would sin gravely if they acted against their consciences by taking any of these vaccines.
  • They agree with the teaching of spiritual leaders, including certain Catholic bishops, who urge Christians to refuse said vaccines to avoid cooperation in abortion and to bear witness against it without compromise, and who defend the right to a religious exemption from vaccination with such vaccines.
  • They do not accept the opinion—expressed by certain other Catholic bishops, the Pope included—that there is a therapeutically proportional reason to resort to abortion-connected vaccines which can justify “remote” cooperation in abortion. They reject as a matter of religious conviction any medical cooperation in abortion, no matter how “remote.”
  • They believe in the primacy of conscience in this matter. While one may personally conclude that recourse to abortion-connected vaccines can be justified in his or her case, vaccination is not morally obligatory and must be voluntary, and those who in conscience refuse vaccination need only take other protective measures to avoid spreading the virus.
  • Although they are not “anti-vaxxers” who oppose all vaccines, they believe as a matter of religious conviction that the ensouled human person, made in the image and likeness of God, is inviolable as a temple of the Holy Ghost and that civil authorities have no right to force anyone to be medicated or vaccinated against his or her will, whether or not the medication or vaccine is abortion-connected.
  • A risk-benefit analysis factors into each person’s formulation of a conscientious religious position on the morality of vaccinations. Plaintiffs are all aware of the vaccines’ side effects, which can be quite serious, their fading efficacy, requiring “booster shots,” their evident inability to prevent transmission or infection, and the fact that natural immunity is likely more protective than injections with the available COVID-19 vaccines. These medical facts inform Plaintiffs’ religious conviction against involuntary or coerced vaccination as an invasion of bodily autonomy contrary to their religious beliefs. Given that the Vaccine Mandate requires that employers insure that employees are “continuously” “fully vaccinated”— as many times as the government advises—Plaintiffs now reasonably fear that “booster shots” of the same vaccines they consider immoral will soon be demanded by the government as a condition of employment and even normal life in society, as is already the case with the original vaccines.

You can review these arguments in more detail and access their exhibits in my original post, which included their complaint in its entirety. I’ve been encouraging people to use as much specificity as possible in their applications for a religious exemption.

But also remember, that even if the employer accepts your religious exemption – which it legally must so long as its sincerely-held, that doesn’t automatically exempt the employee from the vaccine, while also ensuring they can keep their job. That only entitles the employee to an accommodation, if an accommodation can be made by the employer. The employer isn’t required to provide an accommodation if they would incur more than a de minimis expense in doing so. What does this mean? Well, that could mean wearing masks, getting tested frequently, working remotely, plexiglass, etc., etc. These sorts of accommodations may, or may not be possible for any particular employee.

So it’s not a perfect option, even if an exemption is granted. But right now it’s the only option available to a ton of employees who are in jeopardy – many of whom were forced to work through the pandemic in direct contact with covid patients, at times when there were no vaccines invented yet. But now that they’ve survived that, they’re expendable. Because, politics and virtue-signaling.

Mandate Litigation, Legislation and Political Posturing in West Virginia

While our telephones and email flood with messages from upset parents, angry about the forced masking of our children, an unlikely hero comes to the rescue. However, he completely messed up. He’s attempting to score for the opposing team. Democrat nominee for W. Va. Attorney General in the 2020 election, in the name of allegedly protecting civil rights for multiple children, filed a lawsuit against the Governor and various school entities to attempt to force a comprehensive statewide mask mandate for children. He is essentially suing to force the Governor to issue an emergency executive order.

Where do I begin? If the Supreme Court wouldn’t let me force the Governor to call the legislature into session last year, in lieu of just issuing incessant executive orders, I can’t imagine they would allow an anti-civil rights lawyer to force him to actually issuing an executive order. We can take issue with the scope of the Governor’s emergency powers, but the concept that the Governor gets to issue, or not issue, his own executive orders, seems pretty uncontroversial. Though I suppose it’s having the desired effect of convincing various county school boards to reverse their prior decisions on a local level, which several have apparently done in the past day or so.

At the same time, the Republican leadership in the W. Va. legislature sent a letter to the W. Va. Attorney General official asking him to give an opinion on whether employer vaccine mandates and vaccine passports are in violation of the West Virginia Constitution. First off, it’s the U.S. Constitution that stands any chance of going up against the mandates. Any analysis of the W. Va. Constitution is going to have to begin with the U.S. Supreme Court’s Jacobson case from 1905. Because that would be the first case cited by the W. Va. Supreme Court, should they hear the issue.

Proponents of governmental overreach in the COVID era have consistently pointed to Jacobson as justification for whatever measures the government is undertaking for the purported goals of protecting the health and safety of their citizens, which in turn is utilized by both public and private employers to attempt to mandate vaccines on their employees. Jacobson opined on the role of the U.S. Constitution in controlling state police powers, as understood in 1905, granting states and local governments an affirmative carte blanche to engage in state disease control efforts.

What that means, is that as it currently stands, SCOTUS has said that the U.S. Constitution allows vaccine mandates in the past. So if W. Va. has carte blanche to engage in disease control efforts, the ball is squarely in the State Legislature’s court. No federal court or caselaw is likely going to stop it. The only way to stop broad employer mandates right now, whether public or private, is through legislative action. That is a very real possibility right now in West Virginia, given the fact that numerous state legislators are currently calling for a special session to consider that very legislation.

Regarding Jacobson’s 1905 era values, let’s not forget that Jacobson’s legal rationale led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public policy initiative to engage in involuntary sterilization of a woman who was purported to be of low intelligence. 274 U.S. 200 (1927). This decision by the SCOTUS gave the eugenics movement added legitimacy and considerable momentum. By 1931, 28 out of 48 states had adopted eugenic sterilization laws.

Jacobson left the door open for future refinement, conceding that state or local government could exercise police powers in an arbitrary or unreasonable manner. The ensuing future refinement came in the form of 20th century civil liberties which were recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized numerous limits on health and safety regulations, including the right against involuntary restraint, decisions about marriage, contraception, procreation, family relationships, sexual relationships, child rearing and education, as well as the right to refuse life-saving treatment. Nobody is arguing that state police powers retain the ability to suppress any of these now-federally-recognized rights. But they want to leave the forced vaccine part in effect.

In addition to the rights itemized supra, the Supreme Court recognized, and continues to recognize, the right of bodily integrity, which was the category of freedom from government action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell. E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S. at 269.

West Virginia has also recognized the right to bodily integrity as a fundamental right. In the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme Court noted that “all competent patients have the right to refuse medical care,” and that such right “has been recognized by both the United States Supreme Court and by the Legislature of this State.” Id. at 168. The W. Va. Court cited the SCOTUS, at length:

[a]t common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific R. Co. v. Botsford,

141 U.S. 250, 251[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body[.]” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992) ]. The informed consent doctrine has become firmly entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).…

[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Accord Collins , 517 S.W.3d at 92 (” ‘All competent adults have a fundamental right to bodily integrity. … Included in this right is the right of competent adult patients to accept or reject medical treatment.’ ” (quoting Church v. Perales , 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia Legislature has recognized this personal right to make health care decisions: “Common law tradition and the medical profession in general have traditionally recognized the right of a capable adult to accept or reject medical or surgical intervention affecting one’s own medical condition[.]” W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).

Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).

Thus, there is some basis in West Virginia state law in which to oppose mandates. However, it’s still grounded in federal constitutional law. You would expect the legislative leadership to know and understand this. Perhaps it’s just political posturing, sending a hardball to the Attorney General, in order to force him give the ultimate opinion that there’s nothing in the West Virginia Constitution which applies the mandate issues presented. What benefit does that confer to we the people, who are opposed to mandates? I can take the liberty of answering for the Attorney General that what the West Virginia Constitution does say, is that sole legislative power is vested in the legislature. Since SCOTUS believes state police powers control mandate law at the state level, the legislature should have the final say. At least unless our anti-civil rights hero gets his way. But do they have the political will?

Response Brief Submitted in the Enlivant Vaccine Mandate Case

Today we filed our response brief to Enlivant’s motion to dismiss in our wrongful termination lawsuit in McCutcheon v. Enlivant, currently pending in the Southern District of West Virginia. The lawsuit challenges the right of private employers in West Virginia to discharge employees for not taking the EUA vaccine. Here’s the filing.

Seeking to temper the otherwise harsh results that would obtain where a discharge from employment was impelled by the employer’s desire to contravene public policy, an exception to the common law doctrine of at-will employment was established. See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015); See also Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468 (1955) (recognizing that at- will employees serve at will and pleasure of their employers and may be discharged at any time, with or without cause). That exception, created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides: 

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

Id. at 116, 246 S.E.2d at 271, syllabus; Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015). The Court has identified the areas from which public policy may be gleaned:

‘The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.’ 

“To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607. “Substantial public policy” has been defined by the Supreme Court as “not just recognizable as such but be so widely regarded as to be evident to employers and employees alike.” Id. at 745, 559 S.E.2d at 718. The Court recognized in Syllabus Point 3 of Birthisel that ““[i]nherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person.” 188 W.Va. at 372, 424 S.E.2d at 607. The Court has looked to whether regulations or licensing statutes contained specific provisions that addressed the allegedly improper conduct by the employer. Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 170 (W. Va. 2015). 

Here is their memorandum arguing for dismissal:

Discussion from last night: