By: Tom Blackwell Via The National Post

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A Catholic nurse in Ontario had a right to a religious exemption from COVID-19 vaccination because of the “quite remote” link between the shots and aborted fetuses, an arbitrator has ruled in one of the first legal pronouncements on the issue.

Pope Francis and other Catholic leaders have urged adherents to get COVID shots, with the pontiff suggesting it is a “moral obligation.” The fact some vaccines were developed or made with cell lines derived from fetuses terminated decades ago does not mean Catholics are condoning abortion, they say.

But arbitrator Robert Herman said Public Health Sudbury discriminated against the unnamed nurse — a member of the conservative “Latin Mass” group of Catholics — when it fired her for not being immunized.

COVID vaccination would interfere with “the exercise of her faith and her relationship with the divine,” he said.

Vaccine mandates have gradually been lifted throughout Canada and employees have always been able to at least apply for a religious exemption, with no guarantee of success.

But the ruling last month, largely overlooked outside the northern Ontario city, may be the first in Canada to offer some legal clarity on when such exemptions are justified.

Herman said there were inconsistencies in the nurse’s testimony, such as the fact she had opposed the COVID vaccine months before learning about the fetal connection, but that ultimately didn’t matter.

“It is unlikely that (the nurse) has fabricated or simply ‘latched’ on to a creed-based claim for an exemption in order to avoid getting vaccinated,” he said. “It is unlikely that a long-standing devout member of the Latin Mass community has in effect fabricated the assertion that her faith requires this of her.”

The arbitrator ruled on the nurse’s grievance, deciding whether or not she suffered discrimination under Ontario’s human rights code. He did not pass judgment on whether she should be reinstated or given any other award.

A spokeswoman for the Ontario Nurses Association, which represented its member in the grievance, said litigation continues in the case and the union would not comment at this time.

A lawyer representing Public Health Sudbury could not be reached.

Joel Fairbrother, a Calgary employment lawyer who blogged about the decision, said various provincial human rights commissions have published advice on the issue which “heavily implied” it would be tough to get a religious exemption.

“I was critical of those guidance documents from the start, because in my view they are directly contrary” to what the Supreme Court of Canada has said on the topic, he said Monday.

In his blog, Fairbrother said the decision is likely to be controversial, not because of how it applied the law but for political reasons.

The nurse worked for the city’s public health unit, which would have been at the centre of fighting the COVID-19 pandemic. Last fall it deemed that all its employees had to be vaccinated against the virus or face leave without pay and then dismissal.

The nurse, whose name all parties in the case agreed to leave anonymous, refused and eventually filed a request for a religious exemption, citing the cell lines used in the development and manufacture of COVID vaccines.

The AstraZeneca and Johnson & Johnson vaccines used cell lines derived from cells of fetuses aborted in the 1970s and 1980s in making their product. Moderna and Pfizer used similar cell lines in early research on their vaccines but not in the making of them. None of the vaccines contain fetal cells or tissues. The cells used by the manufacturers are “thousands of generations removed” from the original tissue, notes ImmunizeBC, a provincial agency.

Pope Francis said in January that health care is a moral obligation as he urged people to get vaccinated and not to be swayed by “the ideology of the moment, often bolstered by baseless information or poorly documented facts.”

The Vatican’s Congregation for the Doctrine of the Faith ruled in 2020 that receiving a COVID vaccine that used fetal cell lines is legitimate for Catholics if an alternative is not available, in part because the connection to aborted fetuses is so remote.

But Herman noted that the nurse was part of a more traditional and orthodox branch of the Church and strongly opposed abortion and contraception.

He cited the Supreme Court of Canada’s so-called Amsalem decision in 2004, a case involving Jewish condo owners who were told they could not erect temporary religious structures on their balconies.

The court ruled that to claim religious discrimination someone must show the practice in question has a “nexus” to religious faith — regardless of whether it’s required by religious dogma or clerical officials — and that the person is sincere in their beliefs.

Herman said he accepted that the nurse’s vaccine beliefs were sincere and tied to her faith, even though the Pope expressed a different view and the Latin Mass group did not expressly forbid COVID vaccination.

Public Health Sudbury had argued that the nurse’s past actions called into question her motives for refusing the shots. The agency cited the fact the nurse had earlier declined to get vaccinated because she doubted the products’ efficacy and safety; that she and her family did not eschew common medications also developed with the help of fetal cell lines; and that she had administered the COVID vaccine to other people.

The nurse “may have a singular belief against using vaccines … but her unwillingness to get vaccinated is not connected to her faith,” Herman quoted the employer as saying.