Congrats, Anti-Vaxxers: The Feds Think Your Crusade Is a Civil Rights Issue

A recent paper in the New England Journal of Medicine describes how the Equal Employment Opportunity Commission, a federal agency that typically enforces civil rights disputes, has intervened on behalf of anti-vaxxers over the last few years. The paper, published last month, was written by two alarmed professors of health policy and law at Stanford. They say they are hoping to help hospitals prepare for legal challenges alleging religious discrimination over mandatory vaccination policies.

According to the professors, there have been at least 15 cases filed between 2011 and 2016 that have challenged hospitals’ flu vaccination mandates, and that the majority were not thrown out by the judge. The EEOC has gotten involved in three of these cases, two of which were settled, and one of which—on behalf of a hospital HR employee required to wear a mask in lieu being vaccinated—is preparing to go to trial.

In one notable case, in 2016, the EEOC sued Mission Hospital, a North Carolina consortium, for firing six employees for refusing to vaccinate patients. The lawsuit, which alleged religious discrimination under the Civil Rights Act of 1964, was settled in January of this year. Mission revised its policy on vaccinations and paid out compensation to the employees who brought the suit.

“Although courts are not bound by the EEOC’s definition, its breadth creates practical uncertainty about whether there are any meaningful distinctions between religious and philosophical objections to vaccination,” write the authors, which is a polite way of pointing out that the vast majority of anti-vaxxers are motivated by conspiracy theories alleging a link between vaccinations and autism, rather than spiritual certainty. And religion, broadly defined as a “belief system,” is at the heart of some of the civil rights lawsuits the Stanford professors studied—in one case, later settled after a court found the complaint “plausible,” a plaintiff alleged their vegan lifestyle constituted a religious mandate.

While many U.S. states now allow religious exceptions for mandatory vaccinations, virtually no factions of major world religions frown on the practice, and it’s not entirely clear why these laws exist at all. Of course, letting an individual try to claim exception for their first-grader based on a wild misunderstanding of Catholicism is idiotic, but far less flagrantly dangerous than barring medical facilities from enforcing evidence-based preventative treatments.

The EEOC has been steadily wading into this debate over the years; the office’s involvement predates the Trump administration. But the recently formed Conscience and Religious Freedom division of the Office of Civil Rights, charged with protecting healthcare workers from “religious discrimination,” could theoretically pick up this battle. At the least, the department’s very existence indicates the administration’s commitment to enforcing religious freedom provisions—regardless of how God-related those convictions actually are.

In an interview, the Stanford authors say that agency, headed by conservative Roger Servino, has so far appeared to deal with politically motivated issues like abortion, “which arguably is a different situation.” But in some extreme circles the anti-vaxxer and anti-choice positions are woven together; one viral hoax offers that vaccines are made out of aborted fetuses, and the same well-funded journals publishing junk studies about the link between autism and vaccination are offering proof that, for instance, abortions cause breast cancer and “abortion reversal” is a medically sound practice—positions that have steadily crept into federal mandates.