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Kansas lawmakers look to undercut federal vaccine mandates, and that worries public health officials

 A protest sign at the Kansas Capitol in Topeka on April 23, 2020
A protest sign at the Kansas Capitol in Topeka on April 23, 2020

Public health and legal experts warn that passing new laws to strengthen religious exemptions in order to fight the Biden administration's COVID-19 vaccine mandates could sow chaos and hurt Kansas.

TOPEKA, Kansas— Republican lawmakers look determined to take on the Biden administration’s insistence that employers pressure their workers to get vaccinated against COVID-19.

The Legislature meets in a special session next week to engage in battle with the federal government over the vaccine mandates. But courts will likely have the final say on if the mandate is legal, and some factions worry such bold action to fight mandates could further atrophy the state's ability to respond to public health crises.

This week, the Occupational Safety and Health Administration paused enforcement of its own temporary emergency standard requiring companies with 100 employees or more to mandate that workers either get vaccinated or submit to regular testing.

Legislative leaders waited until the emergency standard was in place to call a special session. But now that the rule is in legal limbo, it’s unlikely the Republicans who dominate the Legislature will abandon plans to give workers the freedom to dodge the mandates simply by invoking religious objections. Or drop other proposals offered in the spirit of civil liberties and aimed to undercut the federal mandates.

“We’re not going to let the Biden Administration force businesses to play God or doctor and determine whether a religious or medical exemption is valid or not,” Republican Senate President Ty Masterson said in a statement announcing the session. “We’re going to trust individual Kansans.”

Conservative legislators in Florida, Kentucky, Tennessee, Wyoming and North Dakota have already completed special sessions and passed bills aimed at nullifying new federal mandates.

Lawmakers in Florida passed a bill that would fine businesses $10,000 per violation if they didn’t offer a number of exemptions to their employees. The governor in Wyoming signed only one of the 20 bills that were written during the special session — a law that gives his office $4 million dollars to challenge federal vaccine mandates. Four of the states, including Kansas, will elect governors next year.

The New York Times reports Kansas lawmakers are among legislators across the country that passed more than 100 laws that limit state and local health powers. State lawmakers passed a bill earlier this year modifying the Kansas Emergency Management Act to shift power away from local public health officials and the governor and toward elected county commissioners.

Yet even if the federal mandate is struck down, new state laws making changes to religious exemptions in Kansas could transform the legal and public health systems for years to come.

“It seems like the bills are drafted to let the exemptions swallow the rule,” said Sharon Brett, legal director of the Kansas chapter of the American Civil Liberties Union.

Brett said there’s no freedom of religion provision in the First Amendment that allows a person to put another person in danger by practicing their religion.

If employers have incentives to skimp on verifying the sincerity of an employee who invokes a religious exemption — the way such things are subject to challenge in avoiding military service, for instance — Brett said that would mark a fundamental change.

“It basically gives a two-tiered system of justice,” Brett said, “where the religious rights of people in free society are upheld over public safety.”

“That sends a really difficult and unfortunate signal about who we are, and how we uphold the First Amendment in this country,” she said.

New laws strengthening religious exemptions for COVID-19 vaccines could also wind up undercutting laws on the books requiring vaccinations for school-aged children.

“It sets a precedent,” said Dr. Marcus Plescia, the chief medical officer for the Association of State and Territorial Health Officials. “It's particularly concerning for childhood vaccinations.”

He cited previous national measles outbreaks where some people garnered religious exemptions and remained unvaccinated. In cases like that, Plescia said, public health officials have often been able to lobby religious leaders to convince them of the good vaccines would do in their communities.

But in this case, he said some of these religious exemptions “aren’t really something that religions themselves are even calling for.”

State and local health officials face this political and legal fight when they’re already besieged by the pandemic. That’s made it harder to campaign against new laws that could have far-reaching effects on a range of vaccinations.

“There’s not a clear sort of national advocate who can step in,” Plescia said.

Meanwhile, he said groups like the conservative American Legislative Exchange Council have drafted model legislation adopted by legislatures across the country.

Abigail Censky is the political reporter for the Kansas News Service. You can follow her on Twitter @AbigailCensky or email her at abigailcensky (at) kcur (dot) org.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.

Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

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