'So help me God': The uncertain future of religious exemptions from mandatory vaccination

Since the entry of vaccines against COVID-19, many medical, ethical as well as legal questions arose on the subject of vaccination and its policy. More specifically, the question of making vaccination policy more coercive has heated the debate in many countries across the globe. One particularly remarkable judgment has been done by the Supreme Court of the United States in late October 2021 – Does v. Mills. In the judgment, the Court allowed a vaccine mandate for health care workers in the State of Maine to remain in effect. Prior to the judgment of the Court, Maine health officials declared that vaccination against COVID-19 should be mandatory with only allowing exemptions for people for whom a vaccine would be medically inadvisable. The mandate led to great dissatisfaction amongst health care workers, who argued that they were entitled to religious exemptions under the First Amendment’s free exercise clause as well as the federal employment law. Strikingly, religious objections against mandatory vaccination are not to be exempted from the mandate; this whilst in related COVID-19 contexts the Court ruled that religious exemptions must be allowed – if policies too allow for non-religious exemptions.

Although many COVID-19-vaccination cases were decided upon by the Court in the past 1.5 years, the case of Does v. Mills involved the first claims of religious freedom. Looking at the judgment from a European perspective raises the question as to how the right to freedom of religion in similar cases would be judged upon by the European Court of Human Rights (ECtHR). What is the scope of the right to freedom of religion ex article 9 ECHR in cases concerning (mandatory) vaccination and what can be learned from the ruling of the US Supreme Court? With growing numbers of rulings from the ECtHR regarding (mandatory) vaccination, it is interesting to see what arguments led to the judgment of the US Supreme Court in relation to those of the ECtHR. Therefore, in this oral presentation, the relation between the right to freedom of religion and mandatory vaccination will be discussed.