The university is requiring all students, except those exempted for “documented” religious or medical reasons, to be vaccinated against COVID-19 as a condition for attendance in the fall, while faculty, staff, and campus service employees remain free to choose for themselves.
This requirement raises issues relating to Notre Dame’s Catholic identity because of the vaccines’ link to abortion and the Church’s instruction that ordinarily the taking of these vaccines “must be voluntary.” It is telling that a respected bishop (and adjunct Notre Dame law professor) has declared that Notre Dame’s policy, if strictly applied, would be “immoral.“
There have also been legal objections to student mandates. Florida has just banned them, and, as we have discovered but the university will not acknowledge, a law firm contacted by Notre Dame students has pressed those objections upon Father Jenkins. While we take no position on the legal issues, we provide the letter because it relates many of the facts pertinent to the ethical questions.
Here are the details:
The Mandatory Vaccination Policy
In an April 7 letter to students, Father Jenkins announced that, because “a high rate of vaccination is critical in the local, national and global fight against COVID-19,”
[quote]Notre Dame will require all students…to be fully vaccinated as a condition of enrollment for the 2021–22 academic year. We will, of course, accommodate documented medical and religious exemptions.[/quote]
Similar policies have been adopted by about 220 colleges and universities, including 17 Catholic schools. These numbers, while meaningful, are quite small compared to the several thousand colleges and universities in the country and the 221 that are Catholic.
As the split indicates, opinion is divided. For example, the American College Health Association “recommends COVID-19 vaccination requirements for all on-campus college and university students,” whereas the Association of American Physicians and Surgeons warns:
[quote]Although, at first glance, the policy may seem prudent, it coerces students into bearing unneeded and unknown risk and is at heart contrary to the bedrock medical principle of informed consent. [/quote]
Church Teaching
Both the Vatican Congregation for the Doctrine of the Faith (CDF) and the USCCB have issued statements about the COVID-19 vaccines. The USCCB statements (U.S. Bishop Chairmen for Doctrine and for Pro-Life Address the Use of the Johnson & Johnson Covid-19 Vaccine and Moral Considerations Regarding the New COVID-19 Vaccines) were authored by Bishop Kevin C. Rhoades (Notre Dame’s bishop) and Archbishop Joseph F. Naumann, the chairmen of the committees on doctrine and pro-life activities, respectively.
They addressed the moral issue raised by the link between the vaccines and abortion. An embryonic stem cell line derived from an abortion was used in the testing of the Pfizer and Moderna vaccines and also in the production of the Johnson & Johnson and Astra Zeneca vaccines.
Both the CDF and the bishops concluded that the connection of the vaccines to abortion was sufficiently remote for Catholics to take them in good conscience.
However, both the CDF and the bishops held that ordinarily the vaccination should not be compulsory. The CDF put it this way:
[quote][P]ractical reason makes evident that vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.[/quote]
The Religious Conscience Exemption
Because we cannot tell at this point how the University will apply the religious exemption, we simply note our hope that it will be granted to any student who declines vaccination because of the connection of the vaccines to abortion. Both the CDF and the bishops contemplate such objections “for reasons of conscience.”
The Broader Objection
The broader objection to this sort of the mandate is that there is insufficient warrant to compel anyone to take a vaccine that has not yet been approved by the FDA and has only Emergency Use Authorization (EUA).
The concern is that, while there has been sufficient testing for to show that benefits outweigh known risks, it has not been enough for FDA approval, and consequently unknown serious side effects in addition to those already known cannot be ruled out.
In these circumstances, unsurprisingly, a great deal has been written about both the known and the possible medical hazards of the vaccines. See, e.g., “The Leprechaun has no clothes” and Frontline Doctors.
While the government authorities have pushed back, polls show that a significant number of people remain unconvinced.
The question, then, is whether the anticipated benefit of requiring all students to be vaccinated (save those excepted for religious or medical reasons) justifies exposing concerned students to the possible health risks of the vaccines.
The Most Rev. Thomas Paprocki, bishop of Springfield, Illinois, and adjunct professor at the Notre Dame Law School, and Professor Gerard Bradley of the Law School have stated the case against the vaccine mandate in an illuminating letter to the Notre Dame Observer, which we reprint in the Appendix below with the permission of The Observer.
Here us a summary of the letter, which we hope will lead you to read it in full:
- The vaccines have not been approved and are still experimental. Accordingly, the CDF declaration that vaccination, “as a rule…must be voluntary” applies with special force. “Participants in a medical experiment should be volunteers, even in a public health crisis.”
- “[S]everal thousand Notre Dame students have already tested positive for the coronavirus. They are naturally immune to the disease and have no need for the vaccine.”
- “[C]ollege age students…rarely experience severe symptoms.” “The Notre Dame Dashboard . . . reports no hospitalizations so far for COVID-19 pneumonia.”
- “Many Notre Dame students will thus reasonably judge that they risk more from the vaccine than they do from the coronavirus…. In fact, for a…typical Notre Dame student, the chance of a severe reaction to the vaccine is several times higher than the chance of having one after contracting COVID.”
- Permitting students to choose “would not be unfair to others in the campus community.” The unvaccinated would understand the risk they assume, and they would “pose no appreciable risk to those who do choose to get vaccinated.” Whatever risk there might be “should be regarded as negligible (certainly against the background of risks imposed and accepted…in sports, driving and other ordinary incidents of campus life.)”
- The goal of achieving “herd immunity…would not be imperiled by making student vaccinations truly voluntary.” [Over 90%of students are already vaccinated, and the university recently reported the “incredibly good news” of a “significant decline in case numbers…down to a 7-day average of 1.4 cases/day and a 7-day positivity rate hovering around 0.1%.”]
We leave to the Appendix the authors’ discussion of the religious and medical exemptions, which they urge be interpreted to cover any objection on grounds of conscience or unwillingness to risk adverse effects.
They conclude:
[quote][A]ny undertaking to exclude from campus every student who declines to be vaccinated — especially but not only those who already possess a natural immunity — would be immoral.[/quote]
Legal Questions
Lawyers differ on the legality of vaccine mandates, while state legislatures consider regulation and Florida has just banned mandates in schools and elsewhere because of the “experimental” nature of the vaccines.
We take no position on the legal issues, but because of the inquiries we have received and because the legal objections turn in part upon the same considerations as do the ethical objections, we asked Father Jenkins if, as we had heard, he had received a law firm letter challenging Notre Dame’s policy.
He did not respond.
No matter. The law firm has given us a copy of the letter, and we reprint it in Appendix B hereto.
The letter opens with the representation that “[n]umerous [Notre Dame] students…have reached out regarding Notre Dame’s COVID-19 vaccine mandate,” and continues with a detailed description of the medical uncertainties associated with Emergency Use Authorization and the other facts they maintain support the conclusion that:
[quote]Notre Dame cannot lawfully require students to receive a COVID-19 vaccine that is being distributed under an EUA.[/quote]
Conclusion
The university has worked diligently through this difficult period to provide students as close to a normal educational experience as possible, and, so far as we are concerned, it is entitled to considerable deference in these matters.
Still, the Paprocki/Bradley letter raises hard questions to which there are no easy answers. And the judgment of a respected bishop (and Notre Dame Law School adjunct professor), joined by one of he law school’s ablest professors, that the Notre Dame policy is “immoral” is telling.
Nor is there a credible counter from the university. As we have noted, in announcing the mandate, Father Jenkins simply referred to the need to tamp down the virus across the nation and in the world, passing the inconvenient fact that none of the authorities in the “local, national, and global” effort have mandated vaccination.
And the university’s citing of its several vaccination requirements for deadly diseases like smallpox are beside the point, since they relate to approved vaccines.
Nor does the university explain why, if there is a compelling need to vaccinate all students, including those with natural immunity from prior infection and those living off campus, there is no need to vaccinate all faculty, staff, and support and service personnel who people the campus daily.
Perhaps circumstances will change by fall so materially that the university will lift or substantially modify the mandate. Oremus!
Appendix A
COVID vaccines at Notre Dame
Letter to the Editor | Tuesday, April 27, 2021
[su_expand more_text=”Continue reading”]On April 7, Notre Dame’s President Fr. John Jenkins announced that the University’s “goal for the fall semester will be to have as many members of the campus community vaccinated as possible, thereby reducing the risk of infection on campus and in the local community.” This is a laudable aim and we support it. As the Congregation for the Doctrine of the Faith (CDF) wrote in a “Note” which Pope Francis ordered to be published: “In the absence of other means to stop or even prevent the epidemic, the common good may recommend vaccination, especially to protect the weakest and most exposed.”
The main point of that “Note” was to consider potential moral objections to vaccines that were developed from a cell line recovered decades ago from an aborted fetus. The “Note” concluded that, “when ethically irreproachable Covid-19 vaccines are not available, it is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process.” Notre Dame’s announced “goal” builds upon this Church teaching.
Of course, “as many…as possible” in this context is not a matter of available raw materials — needles, vaccines, medical personnel. Notre Dame has already shown that it can muster as many of those resources as it could possibly use. What’s “possible” here rather has to do with moral constraints, especially the obligation to respect each person’s right to make their own healthcare decisions, to freely act upon their conscientious convictions and what is genuinely fair to everyone concerned.
The CDF concluded that persons may — not must — get vaccinated. “[P]ractical reason makes evident that vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.” This is the moral norm governing all medical treatment, as anyone eighteen or over who has been to the doctor well knows: it must be truly consensual. This principle of self-determination is especially salient in the present circumstance. One reason is that all of the vaccines on offer have been approved only for “emergency use” by the U.S. Food and Drug Administration (FDA); that is, they are still experimental. Participants in a medical experiment should be volunteers, even in a public health crisis such as that presented by the coronavirus. Indeed, especially then, because the pressures of the moment, shifting and almost always invariably incomplete data, and a certain panic could conspire to make even basic moral constraints seem dispensable.
Besides, several thousand Notre Dame students have already tested positive for the coronavirus. They are naturally immune to the disease and have no need for the vaccine (No one knows for sure how long this natural immunity lasts, just as no one knows for sure how long the vaccine works). Notre Dame’s experience thus far confirms too what all the science indicates, namely, that college-age students who test positive rarely experience severe symptoms. Many are entirely asymptomatic. The Notre Dashboard, for example, reports no hospitalizations so far for COVID-19 pneumonia.
Many Notre Dame students will thus reasonably judge that they risk more from the vaccine than they do from the coronavirus, especially since the vaccines would protect them only from the severe symptoms (or death) that are scarcely real risks for them. In fact, for a low-risk person like the typical Notre Dame student, the chance of a severe reaction to the vaccine is several times higher than the chance of having one after contracting COVID. Notre Dame should respect these students’ voluntary choices.
Doing so would not be unfair to others in the campus community. The vaccines work principally by preventing anyone vaccinated from incurring serious illness, and death. The unvaccinated thus pose no appreciable risk to those students who do choose to get vaccinated, for they (the vaccinated) would be protected by dint of their own choices. Any additional risk here should be regarded by both sets of people as negligible (certainly against the background of risks imposed and accepted — in many situations asymmetrically — by participating in sports, driving and other ordinary incidents of campus life).
The unvaccinated obviously put themselves at risk of contracting the disease and of then transmitting it to other unvaccinated people. But all those at Notre Dame who decline the vaccine would understand, and accept, that risk.
The common good of our campus community would be fully served, moreover, if a sufficient number of students is either vaccinated or naturally immune, to obtain “herd immunity.” No one knows for sure what that percentage is for COVID, and it will vary depending upon the relevant population. In other words, a community comprised of the frail elderly would have to achieve a much higher percentage of immune persons than would, say, a community comprised of several thousand college students, to achieve “herd immunity.” That latter percentage is quite possibly fewer than two-thirds. Given that thousands of Notre Dame students already possess natural immunity, the number of vaccinations required to achieve “herd immunity” is certainly compatible with making vaccination truly voluntary. That goal is not imperiled by making student vaccinations truly voluntary.
Fr. Jenkins announced that the University would accommodate what he called “documented medical and religious exemptions.” It is not apparent what Fr. Jenkins meant by “documented.” A documented medical exemption could be a note from a doctor attesting to a student’s medical history of an adverse reaction to vaccines. It could also be some written form (“document”) whereby any student returning to campus in August who is unvaccinated says so. Such a student could be required to confirm in writing that he or she accepts the risks of living and studying in close quarters while unvaccinated. This document might also include the student’s agreement to abide by reasonable precautions, including perhaps some specific to those who are neither naturally immune nor vaccinated. As the CDF “Note” said, those who “for reasons of conscience, refuse vaccines produced with cell lines from aborted fetuses, must do their utmost to avoid, by other prophylactic means and appropriate behavior, becoming vehicles for the transmission of the infectious agent.”
“Medical” objections would most obviously include anyone whose singular condition is a contraindication for the vaccine. Rightly understood, however, it would include as well all those persons who conscientiously judge that it would better serve their health to refuse the vaccine. So long as their refusal does not unfairly imperil others, these autonomous medical decisions should be respected.
Indeed, some and perhaps many Notre Dame students might judge that, although they would not be formally complicit in abortion if they were vaccinated, they nevertheless are called to give perspicuous witness to the truth about the horrors of abortion by avoiding even this sort of remote cooperation with it. These students’ choices to give such profound moral witness should be respected, and encouraged, at our Catholic university. Even so: this way of thinking does not depend upon holding the Catholic faith, or adhering to any other religion. It is based upon moral and scientific considerations equally available to all persons. For that reason, there is no non-arbitrary ground to distinguish “religious” from simply “moral” objections to the vaccine.
Notre Dame should expand its understanding of “religious” objectors to include those whose refusal to be vaccinated are rooted in moral considerations or other objections of conscience. A religious, moral or other exemption of conscience should be ascertained not by documents, but by a simple conversation seeking only to establish that the individual has a sincerely held, reasonable belief that they should not receive the vaccine. This would be in accord with the teaching of Pope Francis, who has said, “The conscience is the interior place for listening to the truth, to goodness, for listening to God; it is the inner place of my relationship with Him, the One who speaks to my heart and helps me to discern, to understand the way I must take and, once the decision is made, to go forward, to stay faithful.”
We offer these considerations to aid the University’s deliberations about how it will go about achieving its stated goal to vaccinate “as many members of the campus community…as possible.” We know that Fr. Jenkins on one occasion was quoted as saying that Notre Dame would require all students to be fully vaccinated as a condition of enrollment for the 2021–22 academic year, a goal reiterated on April 22 in another campus-wide communique. But these statements must not have been meant literally, for they both refer explicitly to exempting students on religious and medical grounds from any vaccination requirement. “All students” is also simply incompatible with F. Jenkins’ more considered statement of aims: “as many as possible.” Most important, any undertaking to exclude from campus every student who declines to be vaccinated — especially but not only those who already possess a natural immunity — would be immoral.
We trust that Fr. Jenkins and the whole leadership of Notre Dame will act for the genuine common good of our community, in light of the relevant scientific truths and in light of all the relevant moral norms, including those brought to bear upon his decisions by order of Pope Francis.
Thomas Paprocki
Adjunct Professor of Law at the Notre Dame Law School and Bishop of the Diocese of Springfield, IL
Gerard Bradley
Professor of Law at the Notre Dame Law School
April 26[/su_expand]
Appendix B
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