In his "State of the Union" address at the recent convention of Agudath Israel of America (AIA), the organization's executive vice president, Rabbi Chaim Dovid Zwiebel, a recognized expert on religious liberty law, expressed his concern with New York State's removal of a religious exemption for parents unwilling to vaccinate their children. Rabbi Zwiebel acknowledged that his statement might be controversial in some quarters, as there are those who argue that the imperative of eliminating the most common childhood contagious diseases takes precedence over religious exemptions.
Nevertheless, said Rabbi Zwiebel, in a society that increasingly defines "progressive" in terms of "progress" from all traditional moral norms, the loss of any requirement that the state accommodate religious beliefs presents a danger. (In that context, it is worth noting that most American Orthodox Jews live in not only the highest-tax states but also in the most progressive.)
Legislatively enacted religious exemptions, which require the state to make every effort to accommodate religious believers in the enforcement of facially neutral statutes, absent a showing of compelling state interest, represent the best protection for adherents of traditional religions — at least unless the US Supreme Court returns to its pre-Smith vs. Oregon (1990) jurisprudence, under which it frequently required religious exemptions as a matter of constitutional law.
But just as religious belief itself is increasingly denigrated, so too has support for religious exemptions declined sharply. The manner in which New York State removed the religious examination for childhood vaccines last June 13 without debate or hearings is an example. The Religious Freedom Restoration Act (RFRA), enacting the pre–Smith vs. Oregon judicial standard as a statutory requirement, was passed by a nearly unanimous Congress in 1993, and over 20 states followed suit with their own RFRA statutes in the years following. Yet every recent attempt to enact a state RFRA statute has failed in the face of fierce opposition led by the LGBTQ lobby, eager to compel one and all to affirm their celebrations, and buttressed by threats of national boycotts of any state daring to pass a RFRA statute.
Reb Chaim Dovid's point was simply that every brick removed from the wall of RFRA-like protection is another breach in the dike, and only strengthens the tidal wave sweeping away all such protections.
THE PROGRESSIVE STATE seeks to diminish the rights of parents to guide their children's education and upbringing and transfer those responsibilities to the state. That approach flies in the face of America's longstanding recognition of parental rights. In Pierce vs. Society of Sisters (1925), Justice McReynolds's opinion for the court rejected the view that "children are mere creature[s] of the state." In that case the Supreme Court struck down an Oregon statute banning all parochial education as an "infringement on the parental responsibility to guide their child's education," and thus a deprivation of liberty protected by the due process clause of the 14th Amendment.
Justice McReynolds's earlier opinion in Meyer v. Nebraska (1923) (striking down a Nebraska statute barring foreign language instruction prior to completing 8th grade) described the constitutionally protected right of each person "to marry, establish a home and bring up children to worship G-d according to the dictates of his own conscience."
The attack on parental rights and religion go hand in hand: According to the progressive credo, children must be rescued from the clutches of their religious parents. Thus a proposed New York statute provides that children as young as nine can be provided with the Gardasil anti-HPV (human papillomavirus) vaccine without their parents being informed. The reasoning behind the provision is that since HPV is typically spread through intimate contact, the state does not want children to feel constrained in their private conduct by the prying eyes of their puritanical parents.
But if not the parents, who will provide the informed consent for the nine-year-old child to receive a potentially dangerous vaccine? In effect, the state legislature is acting in place of the parents. That substitution fails on two levels. First, the state does not have detailed knowledge of the child's medical history that might bear on possible risks from the vaccine, so informed consent is impossible. Moreover, it is the parents who will bear the burden of caring for a child damaged by a vaccine.
Second, state legislators can hardly be assumed to have the child's best interest exclusively at heart. Pharmaceutical companies spend tens of billions on advertising annually, and similarly huge sums on lobbying and campaign contributions. They can dangle before a governor a multimillion-dollar new plant in the state, as Merck (producer of Gardasil) has done in Virginia and New York.
LAST WEEK I WENT FOR MY ANNUAL FLU SHOT, and I have 20 grandchildren who have all completed their vaccine schedules, so I trust that I will not be accused of being an "anti-vaxxer." But I find the bills currently on the legislative docket in New York mandating vaccinations against HPV concerning, and I believe that mainstream proponents of vaccinations should find them concerning as well.
I'm convinced that not a single Orthodox parent would willingly consent to the vaccination against HPV for their child. The bills have nothing to do with issue of vaccines against contagious childhood diseases. HPV is neither airborne nor contagious through casual contact.
Most important, there is no upside. There are far cheaper, less invasive, and safer ways to prevent cervical cancer than vaccination. The first is following a chaste and monogamous Torah life. That alone dramatically reduces the chances of being infected with any strains of HPV.
The second is going for regular exams and undergoing the appropriate screening tests. Cervical cancer does not develop quickly, and such a regime would identify pre-cancerous conditions and facilitate their treatment. In the developed world, where such exams are the norm, rates of cervical cancer are far lower than in the undeveloped world. Even proponents of the protective effect of the HPV vaccine admit that it should not be relied upon to the exclusion of the physician's exams described above.
There is even preliminary evidence that HPV vaccines may lead to increased cervical cancer — at least in the developed world. Population cohorts with high rates of HPV vaccination when the vaccine first came on the market in 2006 show higher, not lower, rates of cervical cancer. That could be for one of two reasons or some combination thereof. The first is that those who have been vaccinated may feel that they are protected, and therefore forgo regularly scheduled physicians exams. The second is that the vaccine may have an amplifying effect on those who have already been infected with one or more of the strains of HPV in the vaccine.
Ultimately, not all vaccines are equal. Most vaccines have been developed to combat highly contagious diseases. Gardasil, however, targets a disease that is not highly contagious and its results are not backed by long-term data. Most importantly for our community, even mainstream defenders of vaccination cannot defend it as remotely necessary for the average Torah-observant patient.