key: cord-1048403-l0mjd72z authors: Capron, Alexander Morgan title: Covid‐19, Free Exercise, and the Changing Constitution date: 2021-11-16 journal: Hastings Cent Rep DOI: 10.1002/hast.1295 sha: c979673895955c2de4cc16ce8735eae9e00bf67a doc_id: 1048403 cord_uid: l0mjd72z The Covid‐19 pandemic has brought bioethics back to five topics—justice, autonomy, expert authority, religion, and judicial decisions—that were central during its formative period but has cast a new light on each, while also tangling public health policy in the current, rather radical, reshaping of the role of organized religion in society. 1 T he novel coronavirus has infected bioethics. Think back sixty years, when a host of new biomedical capabilities-in genetics, life extension, organ transplantation, and reproduction, among other developments-kickstarted the field by bringing scholars from across disciplines to grapple with some novel ethical dilemmas. Now, discoveries concerning the biology and epidemiology of SARS-CoV-2 and how to prevent, detect, and treat Covid-19, including the rapid creation of highly protective vaccines, have renewed some very tough and highly consequential challenges for bioethics. Indeed, the pandemic seems to have brought bioethics back to five concerns of its earliest days-justice, autonomy, expert authority, religion, and judicial decisions-and to have tangled it in the current (and, one might say, quite radical) reshaping of the relationship between government and organized religion in America. The first issue, justice, has been a pillar of bioethics since The Belmont Report. Yet for all the thoughtful analysis it has received from theorists, equity is too often absent in so many areas of health care in the United States. The starkly unequal toll of Covid-19 along socioeconomic and racial and ethnic lines made the public and its representatives grapple with questions about how fairly to distribute benefits-for example, who should be first in the vaccination line?-and burdens-for ex-ample, given the severe harms imposed by social restrictions, such as loss of income, lack of schooling, and social isolation that impairs mental health, when should further public health controls be forgone and higher levels of preventable illness and death be tolerated? Second, autonomy was central to the emergence of bioethics, which modified the ancient norms of medical ethics by placing respect for persons alongside nonmaleficence and beneficence. In place of physicians' views about what would be best for patients and research subjects, the values and preferences of the patients and research subjects were supposed to be respected. But in the intervening years, self-determination has been eroded, no longer simply by physicians but also by bureaucracies, massive banks of data and samples, and the black box of artificial intelligence. Autonomy in the age of Covid-19 harkens back to its roots in bioethics, where consent in medicine and research was described in terms that echoed political claims of personal freedom and self-determination, drawing on John Stuart Mill's descriptions of liberty. Expertise can be the obverse of autonomy. Indeed, Robert Veatch, one of autonomy's most forceful proponents in the 1970s, famously derided "the generalization of expertise," the assumption that persons with scientific knowledge also have "expertise in the value judgments necessary to make policy recommendations." 1 Covid-19 has produced a resurgence of that objection to misplaced authority, as when groups representing disabled patients who routinely need ventilator care objected to New York State's implementing rules that would allocate ventilators to intensive care units treating pandemic patients deemed most likely to recover from Covid-19 2 or when disabled persons criticized other states' triage standards that prioritized patients with the best long-term prognosis. 3 Is likelihood of survival a "neutral" matter or a value choice? What about triaging entry to an ICU to support remedial justice: may a hospital choose between two patients with equal need of intensive care based on which one lives in the census track with the higher area deprivation index, which indicates more adverse health exposures and outcomes? 4 More broadly, Covid-19 has generated a novel rejection of experts expressed as a challenge to the whole notion of expertise. Some people assert that they don't need to follow specialized advice-to wear a mask, to take a vaccine, or to avoid crowded indoor spaces-because the speaker isn't really an expert at all, as can be seen from the so-called expert's advice or directives changing over time. Yet the underlying thought is actually quite similar to what motivates the traditional objection that Veatch expressed, namely, that the individual refusing to follow a public health prescription believes that he or she knows better than the expert what is important for achieving the life the person wants to live, including what risks of harm are tolerable. What is different is that bioethics originally focused on the dilemmas that arose in clinical and research settings, where physicians asserted moral authority to set rules and control medical decisions, which Veatch and others argued was inappropriate. In contrast, the experts making decisions about the current pandemic are act-at law Covid-19, Free Exercise, and the Changing Constitution by Alexander Morgan Capron ing within a public health framework, in which they are implementing value judgments made by democratically accountable institutions about when and how individual liberty may legitimately be limited to protect public safety. The fourth factor, religion, was very prominent in the origins of bioethics. Many of the authorities who brought moral philosophy to the new field of enquiry were leading theologians, such as Paul Ramsey, Joseph Fletcher, James Gustafson, and Richard McCormick, which is hardly surprising given that the topics-the beginning and end of life, what it means to be human, family relationships, and the like-are those that have been shaped by religious beliefs and institutions for millennia. Today, bioethics is basically a secular subject; when it intersects with religious thought, it is usually with religion in its contemporary role in partisan politics, beginning with policies about abortion and research with embryos and extending to sexuality and life support. But the pandemic has led to a new brand of tension between religion and bioethics-inflected policies: public health policies aimed at reducing the spread of the coronavirus have been opposed by religious leaders not because they contravene sacred texts but because they interfere with congregants' gathering to worship. These four reinvigorated aspects of bioethics-justice, autonomy, expert authority, and religion-have come together in the fifth, namely, judicial decision-making. As Tocqueville famously observed, in America, political questions eventually become judicial questions, and that was certainly true in bioethics' first decades, when judges were called upon to resolve clinical and moral questions extending from birth (such as deciding who was the mother of a baby conceived through in vitro fertilization and born to a genetically unrelated surrogate) to death (such as the "definition of death" and issues regarding withdrawal of life support) and many in between. In recent years, however, not only are major cases involving those issues very rare, but conflicts over bioethics-inflected policies arising along the frontiers of biomedical research-such as the use of artificial intelligence and machine learning in medicine, synthetic biology, neuroscience research, and human genome editing-have typically been addressed by administrative agencies and expert panels rather than by courts. Covid-19 has changed that: while disputes over how to protect the public during the pandemic may begin in statehouses, governors' mansions, and public health departments across the country, they soon move to courtrooms. Public Health in the Courts T he use of a broad "police power" to prevent or mitigate risks to the health of the public, which predates the founding of the United States, extends to mandating vaccination and restricting movement, through involuntary quarantine and isolation. Although national policies usually supplant contrary state provisions, in the case of public health, most powers rest with states and the cities and counties to which they delegate authority to impose and enforce rules and restrictions. In the federal system, the Centers for Disease Control and Prevention, the world's premier public health agency, conducts disease surveillance; gathers and analyzes data; conducts research and develops and disseminates tests; provides advice to government agencies, laboratories, and the public; and responds to state and local requests for technical assistance, as do other federal offices responsible for emergency assistance and scientific research. But outside of its responsibilities regarding ports of entry and interstate travel, the federal government does not directly impose the sorts of orders-such as regulating personal or institutional conduct to reduce disease transmission-that usually emanate from public health agencies. (Indeed, states have responded to expanded direct involvement by the federal government in public health by suing to block Covid vaccine mandates issued or planned by President Biden and federal executive departments based on matters of workplace safety or federal employment and contracting. 5 The pandemic has produced a flood of legislation, regulation, and litigation involving public health. The latter contested a wide range of government actions, from changes in the rules allowing mail-in ballots to requirements that people stay in their residences except when engaged in essential activities, from obligations to test employees for Covid-19 to restrictions on the number or density of people gathering in an indoor space. A great many of the cases challenged executive orders on the ground that governors exceeded their authority under their state's constitution and statutes-some preexisting, some adopted in the past year-to issue orders to deal with the emergency brought on by the coronavirus. Courts generally declined to enjoin state attempts to stem the growing public health emergency. Constitutional challenges to officials' authority were rebuffed when the executive's actions were taken in good faith and some factual basis existed for their necessity and the appropriateness of the actions. The U.S. constitution protects certain fundamental rights, but they can legitimately be restricted when a state exercises its inherent police power to protect the health and well-being of the public. The courts generally relied on Jacobson v. Massachusetts, 6 the landmark 1905 case in which a resident of Cambridge, Massachusetts, objected to being vaccinated during a deadly smallpox outbreak. Recognizing that the legislature had delegated the authority to act to local public health officials, the Supreme Court deferred to their greater expertise about how to protect the public. Concluding that the burden on liberty was proportionate to the harm avoided, the Court upheld the officials' authority to penalize anyone who refused to comply with vaccination orders. The constantly evolving scientific understanding of the current pandemic and of how best to prevent transmission made courts dealing with Covid-19 cases particularly reluctant to substitute their judgment for that of public health experts regarding masking re-quirements, the closure of schools and offices, and density restrictions in business places providing essential goods and services. The result was that three of the core concerns of bioethics-namely, justice, respect for personal autonomy, and restrictions on expertise-were treated very differently in the context of the pandemic than they had been when courts first addressed them in the early years of bioethics. The other two early features of the field-religion and court decisions-also came together in a novel fashion, which not only departed significantly from the judiciary's reticence to intervene when reviewing other pandemic restrictions but also connected public health law to the ongoing rewriting of the law concerning church-state relations. Contrasting Rulings on "Free Exercise" S everal cases illustrate this process. The first involves a dispute over the constitutionality of several executive orders issued by Gavin Newsom, governor of California. On March 4, 2020, Newsom proclaimed a state of emergency as a result of the growing danger posed by Covid-19. Fifteen days later, in light of more stringent guidance from federal, state, and local public health officials, he ordered all state residents to heed the Department of Public Health's directives, including the requirement to remain at their place of residence except as needed to fulfill operational roles in sixteen critical infrastructure sectors identified by the federal government or to supply or obtain such necessities as food, prescriptions, and health care, and to abide by physical-distancing requirements when outside their homes. 7 Six weeks later, he issued a second order that reiterated the original instruction to heed public health directives, recognized that the Covid-19 threat was dynamic and varied across the state (so that local officials would be allowed to adjust some restrictions in light of local circumstances), and set forth a four-stage plan for reopening activities as the pandemic was brought under control. 8 Both orders were fleshed out through the state public health officer's directives that specified, for example, which jobs are "essential" and which places of business may open (subject to physical-distancing protocols) at each stage in the reopening plan. On May 8, 2020, the health officer announced that California had advanced to stage 2, under which manufacturing and warehousing could resume and curbside pickup from retail stores was allowed (under what was termed "Stage 2a"); further, individual counties that certified that they met certain benchmarks in reduced incidence of Covid-19 were moved to stage 2b and could reopen offices, schools, and childcare; destination retail businesses, such as malls; and some personal services. That same day, a large Pentecostal church in Chula Vista, California, filed suit to enjoin the restrictions on inperson religious services. The plaintiffs claimed that the public health directives of the state and San Diego County violated the free exercise clause of the First Amendment because they left in-person religious services-along with movie theaters, lectures, and hair and nail salons-waiting for stage 3 before they could fully reopen. Until then, houses of worship, businesses, and other locations had to obey state guidelines that allowed outdoor services of any size but limited indoor attendance to 25 percent of building capacity, up to a maximum of one hundred attendees. The church sought a temporary restraining order so that it could immediately resume worship services without such density restrictions. On May 15, 2020, the district court denied the plaintiffs' application and its request that the defendants be ordered to show cause why a preliminary injunction should not be issued. The church turned to the Ninth Circuit Court of Appeals, seeking an injunction pending appeal; however, a week later, a divided panel of that court denied the appellants' motion. The church then filed an emergency application with Justice Elena Kagan, as circuit justice for the Ninth Circuit, for a writ of injunction, which she referred to the whole Court. On May 29, the Supreme Court issued an order denying the application. 9 Although the Court's per curiam decision did not explain the justices' reasoning, Chief Justice John Roberts wrote an opinion concurring in the denial of injunctive relief. The chief justice noted that prior cases have held that, particularly when circumstances are "fraught with medical and scientific uncertainties," unelected federal judges, who "lack the background competence, and expertise to assess public health," should not "second-guess" the actions of "politically accountable officials of the States." 10 He concluded that the state's restrictions on places of worship do not violate the constitution because "[s]imilar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances," while only dissimilar activities, "such as operating grocery stores, banks, and laundromats," are treated more leniently. Justice Brett Kavanaugh wrote a dissenting opinion for himself and Justices Thomas and Gorsuch, arguing that "comparable secular business"-including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, and bookstores-are not subject to the "25% occupancy cap." Since, he said, the First Amendment prohibits using religion as a basis for classification, California's "discrimination against religious worship services" violates the Constitution. On its face, the disagreement between Chief Justice Roberts and Justice Kavanaugh appears to be factual: do religious services more resemble the activities of offices, supermarkets, and bookstores or lectures, concerts, and theatrical performances? But the argument actually turns on the standard of justification the state must satisfy. Justice Kavanaugh's conclusion that the constitution is being violated is hardly surprising since he began his analysis with a conclusory description of the state's classification scheme as "discriminatory treatment of religious worship services." Based on that characterization, he ap-plied Church of Lukumi Babalu Aye, Inc. v. Hialeah, 11 in which the Court had struck down a city ordinance aimed solely at the ritual practices of a particular church. He said that under Lukumi, "California must show that its rules are 'justified by a compelling governmental interest' and 'narrowly tailored to advance that interest.'" Quoting from a contemporaneous Sixth Circuit decision that enjoined Kentucky's limitations on public gatherings as applied to churches on the ground that they "inexplicably applied to one group and exempted another," Justice Kavanaugh concluded that California had not provided sufficient reasons for the way it classified religious institutions. In contrast, the chief justice invoked the "reasonable basis" standard, which applies to rules of general application. He concluded that the decision whether to group indoor religious services with other activities, such as lectures or plays, "where large groups of people gather in close proximity for extended periods of time," or with shopping and working activities, where people "neither congregate in large groups nor remain in close proximity for extended periods," was correctly left to public health experts, who understood better than judges what makes certain activities more likely than others to result in transmission of the coronavirus, even when appropriate precautions are taken. After California adopted a new "Blueprint" for managing the pandemic (in which the restrictions applicable in each county varied by its "Tier," based on coronavirus incidence), 12 the district court once again denied the relief sought, a ruling that the plaintiff then asked the Ninth Circuit to overturn. But on November 24, 2020, before the circuit court had filed its judgment, the church petitioned the Supreme Court to review the district court's ruling. Then, on January 22, 2021, three days after the Ninth Circuit affirmed the district court's denial of preliminary injunctive relief on the merits, the church filed another emergency application for an injunction with Justice Kagan. In contrast to how the Supreme Court ruled eight months earlier, it granted this ap-plication in part: it enjoined the state from enforcing the prohibition on indoor worship services, though the state was permitted to impose a 25 percent capacity limitation during tier 1 (San Diego County's status at that time) and to prohibit singing and chanting during indoor services. 13 Does it seem surprising that the same facts produced a different result? Actually not, since the Supreme Court-with Justice Amy Coney Barrett in the seat formerly occupied by Justice Ruth Bader Ginsburg-had already shown several months earlier, in Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, Governor of New York, 14 that when a free exercise claim is raised on the ground that a government policy is not "neutral" because religious facilities are treated differently from some other businesses, the policy must survive "strict scrutiny." In Roman Catholic Diocese, the Court granted an application for injunctive relief against the "very severe restrictions" to prevent the spread of SARS-CoV-2 that an executive order imposed on attendance at religious services (no more than ten persons at a service in a "red" zone and no more than twentyfive in an "orange" zone). Given that precedent, how could one doubt that California's "Blueprint"-which totally barred indoor worship services in Covid tier 1 areas-would be enjoined on First Amendment grounds? Preventing Religious Discrimination or Bestowing Privilege? T hroughout U.S. history, regulations that affect religious practices-whether by prohibiting something that is obligatory in a religion, requiring something that is forbidden, or otherwise burdening religious conduct-have been subjected to radically different constitutional review. Traditionally, the purpose of the First Amendment's religion clauses was to give all religious adherents the right to equal treatment-neither more or less liberty than anyone else. Then, for twenty-seven years beginning in 1963 with Sherbert v. Verner, 15 the Court required states to demonstrate a compelling interest in applying a law to persons who claimed that it interfered with their religious beliefs or practices. But case-by-case decisions about when the free exercise clause mandates that religious adherents be exempted from having to comply with a generally applicable law resulted in confusion and inconsistency. And so, in Employment Division v. Smith, the Supreme Court in 1990 returned to its older view and held that the free exercise clause does not compel courts to grant exemptions to people with religious motivations for violating "neutral" laws, that is, those that are generally applicable and do not target their religious practices. 16 Today, the meaning of the free exercise clause is again up for grabs. Does the clause simply require that the government not intrude into church affairs or use religion as a reason for diminishing the liberty that a person would otherwise enjoy? Usually, limitations on personal liberty are judged by the "rational basis" standard, as was demonstrated when courts across the country upheld a wide range of public health requirements aimed at protecting people from unreasonable risks of coronavirus infection created by the acts of others, be they the refusal of individuals to wear masks in public or the operating of brick-and-mortar stores by business owners. Recognizing that public health officials must make trade-offs between safety and other goals when they determine which activities will be allowed and what precautions must be taken for them to operate safely, courts interfere only when the distinctions drawn are arbitrary or rest on unlawful discrimination. But after South Bay United Pentecostal Church, "neutral" rules that burden religious institutions can be struck down without evidence of antireligious animus, and religious adherents enjoy a special, more protected form of liberty in choosing how to behave, subject only to the least-restrictive requirements needed to serve a compelling governmental interest. Moreover, as the Court showed at the end of its term, in Fulton v. Philadelphia, the existence of any "exceptions" to a general law is enough to remove a case from the rational basis standard applied to "neutral" laws under Smith and to subject to strict scrutiny Philadelphia's decision to no longer use a Catholic social services agency to screen prospective foster parents because the agency will not certify same-sex couples. 17 This interpretation narrows Smith to the point of irrelevance (since all regulatory schemes in effect have exceptions, at the very least in what they choose not to regulate). And in any case, the Smith standard appears headed for the judicial dust bin. Justice Samuel Alito, concurring in the Fulton judgment (and joined by Justices Thomas and Gorsuch) opined, "It is high time for us to take a fresh look at what the Free Exercise Clause demands," and Justice Barrett's concurring opinion (joined by Justice Kavanaugh) asked pointedly, "What should replace Smith?" The Court's current term may provide an answer to that question, perhaps delivered in a case involving Covid-19 or another hot-button bioethics issue. If, as now seems likely, a majority of the justices decide to end the Smith era, we do not yet know whether they will craft an entirely new standard or return to something resembling Sherbert. In any event, many of the issues that gave rise to bioethics-such as how to balance patient autonomy with professional expertise and social order-could be reshaped in the context of a redesigned free exercise clause. It's worth keeping in mind the risks involved: as the Supreme Court stated nearly a century and a half ago, to permit religious exemptions to valid laws would be "to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." 18 Generalization of Expertise Memorandum of Decision & Order, granting order to dismiss Respecting Disability Rights-toward Improved Crisis Standards of Care Mitigating Inequities and Saving Lives with ICU Triage during the COVID-19 Pandemic Ten Republican-Led States Sue over Biden's Vaccination Mandate for Federal Contractors Executive Order N-33-20, State of California Executive Order N-60-20 Quoting from Marshall v South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California Employment Division, Department of Human Resources of Oregon v