By Jay Richards at Brownstone dot org.

In 2024, IT specialist Lisa Domski was awarded $12.7 million in a religious discrimination lawsuit against Blue Cross Blue Shield of Michigan. The health company had fired her for refusing a Covid-19 vaccine that was developed using aborted fetal cell lines - to which she objected as a Catholic.

Domski's case isn't unique. Hers is one of at least five major lawsuits pitting vaccine mandates against religious liberty in recent years.

Most Americans might assume that the religious liberty guaranteed by the First Amendment would extend to vaccines given to both adults and children. Most states do recognize such a right, but California, Connecticut, Maine, New York, and West Virginia do not.

Should they? With ever-growing public concern about vaccine mandates, it's only a matter of time before this question reaches the Supreme Court.

The Court has never ruled directly on the question of religious liberty and vaccine mandates, but it has dealt with mandates. Jacobson v. Massachusetts (1905) involved an adult man, Henning Jacobson of Cambridge, Massachusetts. The city, following a state statute, had mandated the smallpox vaccine during an epidemic and had fined Jacobson five dollars for failing to comply. He argued that his state's mandate violated his right to individual liberty under the 14 Amendment.

The Supreme Court disagreed with Mr. Jacobson. It ruled 7-2 that states have broad authority under their police powers to enact public health measures, including compulsory vaccinations, when necessary to protect the community.

In Zucht v. King (1922), the Supreme Court ruled that schools could mandate vaccines. In Cantwell (1940), however, the Court found that states needed to have a compelling state interest to restrict religious freedom. Half a century later, Smith (1990) lowered the bar for states to overrule religious liberty claims. The Religious Freedom Restoration Act (1993) partially rebalanced the scales. And recent Court decisions suggest that the Court may soon send Smith to the recycle bin.

None of these cases, however, involved a potential conflict between religious liberty and a vaccine mandate. So, these questions remain: If presented with the issue, should the Supreme Court require that state laws recognize religious liberty objections to vaccine mandates? And if so, under what conditions?

I'm neither a legal scholar nor a prophet, so I won't venture a prediction about how the Court would rule. Still, the Court should recognize the legitimacy of at least some religious liberty objections to vaccine mandates. This is true even if one believes the seven-vote majority decided correctly in 1905 that states could mandate the smallpox vaccine.

Such mandates always involve crucial questions of fact. In Jacobson, the Court took for granted several of what it viewed as facts: (1) Smallpox vaccines, they assumed, had a long history of immunizing recipients against a highly infectious and deadly disease. (2) There were few alternative treatments for the infected. (3) The cost of refusing the Massachusetts mandate - a small fine - was not all that burdensome. (4) The risk of the vaccine itself was quite low.

(5) Finally, they assumed, such a mandate was needed for public safety.

Given all this, they rejected his appeal to personal liberty.

Few of these premises apply to childhood vaccines on the 2025 childhood schedule - still less to the schedule as a whole. On the contrary, every newly approved vaccine benefits from unmerited prestige-laundering from the smallpox and polio vaccines. As a result, the assumption that states have a compelling public interest in mandating every vaccine on the entire childhood vaccine schedule - even over sincere religious objections - is way past its expiration date.

That claim may seem controversial - even scandalous - to readers who encountered a modest vaccine protocol as children or parents. As a child, I received smallpox with a painless bifurcated ne...