A couple of decades ago, there were hardly any anti-vaxxers in Australia. Those who held the belief that it was wrong to prevent illness by receiving a vaccine typically rejected other aspects of modern life and government regulation as well.

The anti-vaxxer movement gathered pace with the publication of an article in a medical journal, since retracted and thoroughly discredited, that purported to make a link between vaccination and autism.

Since then, the movement has become widespread. Now, vaccination against Covid has emerged as a religious issue – at least in some theologically conservative circles.

Conscientious objection to vaccination

The Ezekiel Declaration is one example of that view in Australia. Written by three Baptist pastors, and apparently attracting a large number of signatures, it is for the most part concerned with the terrible effect of lockdowns on people’s mental health. That is indeed, a matter of great concern for us all. Oddly, though, the declaration’s primary purpose is to make an appeal to the Prime Minister not to impose “vaccination passports”. The authors want to protect the rights of those who may have “good and informed reasons for declining” to be vaccinated, notwithstanding that mass vaccination is the only alternative to lockdowns if we are going to avoid catastrophic levels of illness and death from this virus.

The pastors identify this as an issue of conscience:

[C]onscience should never be coerced. The conscience is one of the innermost expressions that animates an individual, and that allows them to worship God as well as obey a legitimate governing authority. The conscience is the immediate contact of God’s presence in a person’s soul, and so an individual forced to act in a way that is objectionable to their conscience will never be at peace, either before God or before the state.

There has been a not dissimilar call from the Australian Catholic Medical Association, appealing to the importance of accepting conscientious objection within the Catholic theological tradition. This position is in contrast to that of Catholic Health Australia which has strongly endorsed the need for vaccination, particularly for health workers.

Where angels fear to tread…

The old saying that fools rush in where angels fear to tread is no doubt applicable here. In some conservative evangelical circles at least, the debate has become very heated. Some people have strong views concerning the retention of their liberty not to get vaccinated, and they may be inclined to see criticism of their position as an attack on their faith. Others are very concerned about that position, noting inaccuracies in the information provided and pointing out that at best, the Ezekiel Declaration offers only very weak support for getting vaccinated against Covid.

So what can a lawyer offer? Well at least a little clarity about the issues, and some explanation of the relevant law. That may at least help others to understand what is and is not in contest.

No one is being compelled to be vaccinated

No one has been compelled to be vaccinated in Australia, and no one will be. It is a fundamental legal principle that adult patients must give an informed consent to invasions of bodily integrity except in a medical emergency (for example, where the patient is unconscious after a car accident). For children who are not capable of giving their own consent, a parent or legal guardian must consent on their behalf.

What that means is that patients cannot be forced to be vaccinated without violating the basic medico-legal rules about consent, and no one is suggesting that this position will change.

Governments may withhold benefits or impose restrictions on the unvaccinated

We have long accepted as a society, that governments have a legitimate interest in having children immunised against common diseases in order to protect both the children and others from communicable illnesses. Polio, measles, mumps, rubella, chickenpox and a number of other illnesses have been greatly reduced through mass vaccination programs.

Governments don’t force parents to vaccinate their children, but they do strongly encourage it by various means. If your children are not vaccinated when they should be, in accordance with the standard schedule, that may reduce the amount of Family Tax Benefit you receive. You might not be able to enrol your child in pre-school. If the child is not vaccinated before starting compulsory schooling, the parent may be required to keep the child at home in the event of a local outbreak.

Such measures are necessary to protect other children. I cannot recall church leaders ever objecting to such measures before, on religious grounds.

The effect of such measures is to increase the costs of non-vaccination to parents who refuse to allow their children to be immunised; but it does not, in itself, compel violation of bodily integrity. A government’s rules that impose additional costs on the unvaccinated recognise the costs that those who refuse such preventative measures impose upon the rest of us. If a local community has a large number of children suffering from whooping cough, measles or hepatitis, the cost will not be borne only by those children. To the extent that medical services, including hospitals, are involved in responding to the outbreak of illness, the cost is borne by all of us who pay taxes.

If the disease that a vaccine will help prevent is a highly infectious one, then the costs of non-vaccination are borne by everyone who might come into contact with an infected person. As best we are advised, the Covid vaccines don’t prevent illness necessarily; they are just highly protective against the need for hospitalisation. An unvaccinated person with a high viral load may still infect a vaccinated person.

Employers may impose requirements that are reasonable

What about no jab, no pay policies that impact upon employment? If an employer says that a person needs to be vaccinated in order to work in a particular place or profession, that is not coercion in itself. The unvaccinated person has the (admittedly difficult) choice of finding another job or complying with the vaccine mandate. The employer’s requirement is likely to be upheld by the courts, so long as it is reasonable.

What is reasonable, when we are dealing with such a severe public health crisis as the emergence of the delta variant of Covid?

Consider for example, a recent experience in a large London professional services firm. An employee who had chosen not to be vaccinated for a rather trivial reason became infected with Covid. Because he had gone to work while infected, 20 staff with whom he came into contact had to self-isolate for 10 days, disrupting important work. Another colleague became infected as well. So the one unvaccinated employee imposed significant disruption upon the firm and its staff, as well as others in the community who were indirectly affected by his refusal to accept immunisation.

An employer who decides that the cost of employing the voluntarily unvaccinated is too high might well be making a reasonable decision in these circumstances. Similar issues arise for a restaurant owner or the proprietor of a cinema who has to be concerned for all his or her patrons. In circumstances where people have had the opportunity to receive a double dose of a vaccine declared by the regulators to be safe and approved for their age group, and do not have medical reasons for non-vaccination, how much cost should employers and business owners have to bear to accommodate the unvaccinated? The answer to this might depend upon what moral principles are at stake.

The question of conscience

As Christians, we should be very concerned to protect people who have a genuinely held conscientious objection. Issues of conscience are arising with increasing frequency, particularly in the medical profession.

There could be an objection to a particular vaccine due to the circumstances of its creation. An example might be a vaccine that was made through the harvesting of bodily matter from political prisoners subjected to capital punishment. An ethical argument has been voiced against certain Covid vaccines on the basis that they may have been developed and produced from cell lines derived from two aborted foetuses in the 20th century. The Vatican’s Congregation for the Doctrine of the Faith has categorised such a connection as remote, and said that consequently there is no ethical objection to taking a vaccine that might have such a link somewhere in its developmental history.

The Catholic Medical Association seeks to protect those, who on the basis of conscience, would rather decline the vaccine than allow any compromise at all with evil, notwithstanding the Vatican’s guidance. If we are to respect conscientious objection properly, we should regard this as being just as valid an objection as one held by a person who has medical reasons not to be vaccinated. The number who will have such genuine conscientious objections will be very few indeed, and sensible accommodations can generally be found with sufficient goodwill.

However, like the authors of the Ezekiel Declaration, the Association also seeks to protect the conscientious objection of those who are worried about side effects on the basis that we have a responsibility to care for the health of our bodies. In its document, the Association sensibly balances this against the moral obligation to do one’s best not to infect others.

Let’s be clear though. If I object to taking a vaccine because I am worried about side-effects, or because I am concerned that it is insufficiently tested, I am not objecting on moral or conscientious grounds. I am making a decision based upon my assessment of the risks versus the benefits to myself on medical grounds. We should not fool ourselves into thinking that such a judgment is a religious one.

The Bible gives us no guidance whatsoever on the medical efficacy or benefit of a new vaccine. A religious person who has an objection to a vaccine does not have a religious objection by reason only of the fact that he or she happens to be religious.

A religious person who has a non-religious objection to vaccination is absolutely entitled to refuse a violation of his or her bodily integrity; but this does not mean that governments and employers are not justified in imposing restrictions to protect others, so long as the restrictions are reasonable. These are difficult times, and difficult judgments have to be made, respecting people’s right to consent or refuse consent to a medical intervention, while doing what is necessary to protect others.

Church attendance

In due course, it may well be that churches will need to decide what to do about the vaccination issue in terms of church attendance. Once the public health emergency has passed, due to mass vaccination, and Covid joins the long list of endemic viruses, this ought not to be a matter for government regulation. The principle of freedom of association ought to be applied to any group of people who gather voluntarily. Churches in this respect are not in a very different position to the host deciding who to invite to a large birthday party. Churches will need to make their own decisions, mindful that we have never before insisted upon any vaccination certificate for attendance, whether it be in relation to the flu or more serious illnesses.

That said, church leaders should not avoid discussing difficult issues in the Christian community just because they are divisive. We should address the issue of Covid vaccination from a Biblical perspective just as we should address other difficult pastoral issues. For myself, two factors stand out.

The issue of trust

The first is the proper place for trusting responsible governments and well-qualified health experts. Arguably, the internet has given us far too much confidence about what we know. That can lead us to place inappropriate reliance upon our own (ill-informed) judgments.

Over my life I have taken a large number of medications without knowing all the history of their development. I have trusted the pharmaceutical regulators on safety and efficacy and my doctor on the risks versus the benefits of the drug for me personally. On such issues, I know at least what I don’t know. I am neither a doctor nor a chemist. I would rather trust the top regulatory authorities in Australia, the United States and elsewhere, who have looked closely at the science, than the conspiracy theorist on YouTube or the talkback radio host, who has not. The pharmaceutical regulators are surely part of the infrastructure of government, endorsed as being for our good in Romans 13. We should trust those experts unless we are given compelling reasons not to do so.

Loving my neighbour

The second factor is the call to love others. If I have no genuine conscientious objection to a vaccine, and if there is a very small risk to myself in taking a vaccine, is not this the right thing to do, not only for myself and my loved ones, but also for my neighbour and all those in this country devastated by the effect of lockdowns? This is an issue that the Ezekiel Declaration doesn’t appear to consider.

Yes, Christ asks me to take care of my body; but he does not ask me to put my own interests so far ahead of the interests of others. In the absence of a genuine moral objection, the right to give or withhold consent to medical treatment should not be used to justify a failure to love my neighbour by playing my small part in reducing the spread and impact of this devastating new illness.

Christ died for us. Many, in previous generations, have given their lives for their country and its freedoms. Doctors and nurses all around the world have been giving every ounce of their energy, at risk to themselves, to deal with this illness and save people from death. And all that the government, and our top health experts are asking of us, is to get a vaccine.

Patrick Parkinson

Patrick Parkinson is a Professor at the TC Beirne School of Law, University of Queensland, and a former Dean of the School. Professor Parkinson is a specialist in family law, child protection, law and...