Your Laws on RFRA

Posted in: Constitutional Law

At the oral arguments in the Hobby Lobby case, the Supreme Court Justices struggled to figure out how to apply the Religious Freedom Restoration Act to the Affordable Care Act in the contraception mandate cases. In their defense, it is not easy, because RFRA is a black box, as I discuss here.

RFRA’s application over the years does give us important clues, though. For example, after RFRA was in place from 1993-1997, and landlords invoked it to keep unmarried couples out of their apartment buildings, we learned that high on many of the religious entities’ RFRA agenda was overcoming the civil rights laws. We also have recent evidence that when the courts apply RFRA to federal laws, all hell can break loose.

The 2006 RFRA Decision Holding That a Small Religious Group Has Rights to Use an Otherwise Illegal Drug

In 2006, in its first and only RFRA decision on the merits to date, the Supreme Court was asked to interpret RFRA to determine whether the O Centro Espirita Beneficente Uniao do Vegetal (UDV) could overcome the federal Controlled Substances Act. The UDV is a small Christian Spiritist religious group, whose roots are in Brazil, where there are actually many religious groups who use ayahuasca as part of their ceremonies. The UDV drink hoasca tea, which is composed in part of ayahuasca and contains DMT, a banned substance under the Controlled Substances Act. The Court held in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetalthat the UDV had shown a likelihood of winning on the merits under RFRA, which meant that it could use hoasca as part of its religious ceremonies.

According to the Supreme Court’s opinion, in the lower courts, the United States argued that DMT “can cause psychotic reactions, cardiac irregularities, and adverse drug interactions” and that there was reason to be concerned about diversion to non-believers. The government also noted a “general rise” in the use of such drugs. The UDV responded by “citing studies documenting the safety of its sacramental use of hoasca and presenting evidence that minimized the likelihood of the health risks” and asserting the “thinness of any market for hoasca.” The District Court concluded that neither side prevailed on either ground: the evidence on “health risks was ‘in equipoise’” and the “evidence on diversion ‘virtually balanced.’” With the sides so evenly balanced, the court concluded that the government had failed to prove its heavy burden under RFRA.

At the Supreme Court, the government further argued that it had a compelling interest in the uniform enforcement of the Controlled Substances Act as follows:

According to the Government, there would be no way to cabin religious exceptions once recognized, and “the public will misread” such exceptions as signaling that the substance at issue is not harmful after all. . . . Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions.

The Court rejected this theory and held that because the federal government had granted an exemption to the Native American Church for the use of peyote, which is also a Schedule I controlled substance, it had to permit the religious use of ayahuasca tea and the DMT in it to this small religious group. I could not understand at the time how the Court could so blithely permit the use of a Schedule I drug, as though all such drugs are fungible.

In any event, the UDV remains a small group in the United States with members in several cities. The group values its privacy and is not easy to join, although there are reports of growth. There are no published reports that indicate that its members have suffered negative consequences from ingesting hoasca tea or caused the diversion of ayahuasca to secular or recreational users. UDV also has underwritten studies to support the safety and use of hoasca and/or its active ingredient, DMT; some studies indicate it may be helpful with the treatment of substance abuse and addiction.

The Next Wave: The Santo Daime

After the O Centro decision, the Drug Enforcement Agency (DEA) sought to enforce the Controlled Substances Act against another South American-based group that also uses ayahuasca during its religious ceremonies, the Santo Daime. The group invoked RFRA, and it, too, now has the capacity to use ayahuasca for religious purposes without interference from the authorities. Like UDV believers, the Santo Daime faithful do not proselytize and do not seek public attention.

By all reports, the DEA has abandoned enforcing the law against ayahuasca, and why wouldn’t it? Even if users are not participating in either UDV or Santo Daime services, its use, especially if led by a shaman, can be traced back to some South American-based religious tradition. While this development may be good for religious liberty, it may not be good for all.

The Third Wave: The New United States Market in Ayahuasca

In a recent story, the magazine Marie Claire published a disturbing article on the popularity of ayahuasca for wealthy men and women seeking “enlightenment in a cup.” It charts ayahuasca’s pop culture rise: “[t]he drug has turned up in the Jennifer Aniston film Wanderlust and the television series Weeds, and it’s made vocal fans of Paul Simon, Sting, Tori Amos, and Indie musician Ben Lee. More quietly, in the last few years, an underground ayahuasca scene has been growing steadily in the States, where it is illegal” unless you are using it for religious purposes, thanks to RFRA. Accordingly, “[h]ush-hush ceremonies led by traveling shamans have cropped up in trendy neighborhoods” as well as the corporate law, Ivy League academic, and high-fashion worlds.

According to Marie Claire, the drug sells for about $200-250 for each experience, and the psychedelic experience is typically guided by a shaman. You need a bucket by your side as you may vomit, and it can yield terrifying nightmares or miraculous insights, not to mention diarrhea. It has been used in South America for centuries, and its devotees are passionate about its spiritual upside.

In fact, there is a thriving industry in ayahuasca travel. Many travel to South America to experience its effects in the Amazonian jungle, and there are increasing numbers of lodges and shamans willing to guide travelers on a ayahuasca psychedelic trip, as well as train new shamans. There are also increasingly disturbing stories, including the death of an 18-year-old American boy, rapes, and medical problems. There is no reason to believe that these evils cannot also visit the United States.

The Reasons to Be Concerned About Ayahuasca in the United States

Remember what the government argued in the O Centro case: DMT can have negative health effects, “can cause psychotic reactions, cardiac irregularities, and adverse drug interactions.” The courts did not reject these facts. Rather, they found persuasive the UDV’s arguments that its sacramental methods of use reduced the health risks for the UDV believers and that there is a “thin” market in hoasca.

As always happens in a RFRA case, the courts were led to consider only the believers in front of them. That is the price of RFRA’s “least restrictive means” test, which invites the courts to noodle over how to make this law bend for this particular believer.In the litigation involving the UDV and Santo Daime, the government argued about the potential negative consequences of DMT for all Americans. RFRA, though, invited the UDV and then the Santo Daime to argue that—whatever its potential negative effects for many—they should receive singular treatment under the law. RFRA makes them laws unto themselves, and the consequence is that the government’s role in protecting others is displaced.

One need only read the comments following the Marie Claire article to obtain some insight into ayahuasca negatives. It turns out the government’s fears about the drug, if not any particular group, were justified. To be clear, none of these comments single out either the UDV or Santo Daime. Rather, they are focused on experiences with the drug itself.

First, a guide is necessary, because the participants are disabled during the psychedelic trip, which is routinely powerful, whether positive or negative It is now commonplace to read reports of ayahuasca shamans, who have raped or fondled women under the influence. One woman comments that the article “fails to mention the many women who are raped or mistreated by ‘shamans’ during or after ceremonies. The ayahuasca experience can be very disorienting, and the lines of consent become easy to blur.” Another comment declares that there are many shamans who are “self-serving abusers.” Yet another declares that the drug should not be taken alone, because a “learned guide” is needed to “help with difficult psychospiritual experiences.”

Second, the drug is neither prescribed by a doctor or psychiatrist nor dispensed by a pharmacist, and has not been tested through the United States’s typical, consumer-protective drug gauntlet to determine its interaction with underlying mental or physical diseases or other drugs. Thus, one of the comments delivers the troubling, opaque advice: “just don’t take certain pharmaceuticals with it.”

Third, the drug itself has harmed people (beyond the women who have been fondled or raped). A father talks about his 27-year-old daughter who “l[o]st her mind after goin to a dozen ceremonies” in a year, leading to his now “living the nightmare with her currently.” From another comment we learn that it is dangerous apparently for those with “deeply rooted psychological issues.” Of course, these are the very dangers the government argued to no avail under RFRA in O Centro and in the Santo Daime litigation.

Each and every one of these comments can be found elsewhere on the Internet as well. Ayahuasca has become a problem in the United States, even if it is a spiritual tonic to some.

The RFRA Disempowerment of the FDA

Another comment author declares that she wishes the “writer would stop referring to ayahuasca as a drug—it is not, it’s a medicine, used therapeutically not to get high!” I suppose what she means is that she does not view it as a recreational drug, but her claim to therapeutic value is a reminder that the FDA’s usual procedures were displaced by RFRA.

Under federal law without the RFRA modification, a drug on the Schedule I list of controlled substances is not available to the public until it has been tested through FDA processes measuring effectiveness, potency, the potential to interact negatively with other drugs, side effects, therapeutic value, appropriate dosage (by gender, age, and weight), and safety. If it has therapeutic effects, we would ordinarily let it prove itself through usual processes. When a drug is carried by a religious believer into the country, however, RFRA takes over.

This leaves us with more questions than answers: When users in the United States suffer permanent or serious psychological or physical injury, or become ill or die after mixing ayahuasca with prescription drugs, whom can they hold accountable? And where is the list of drugs for which there is a negative interaction? Or the list of pre-existing conditions that would be negatively affected by ingesting ayahuasca, which often has a dramatic purgative effect. Is anyone experimenting with it being given informed consent about its potential effects? Sadly, neither Congress nor the Court can be sued for their negligence in RFRA’s enactment or interpretation.

With the DEA taking a backseat on ayahuasca, because of RFRA, is anyone tracking shamans accused of sexual assault, or any other crime, during an ayahuasca experience? Recent studies indicate marijuana results in a reduction of IQ over time, particularly when used by children. What are the actual effects of ayahuasca on children, pregnant women, and the elderly, over time, as determined by scientists not underwritten by organizations with an interest in the outcome?

I fully understand that even asking these questions is at odds with the spiritual element of the ayahuasca culture, but I am not about to paper over the potential dangers of a practice simply because it is religious or spiritual.. RFRA sidelines the government from enforcing its laws against believers, but it does not require all of us to stop asking sensible questions about the protection of the vulnerable, whether they are women at risk of rape or someone with a medical condition or prescription that does not safely mix with ayahuasca.

The Court’s RFRA Ayahuasca Folly Is Out of Its Hands

A critical problem with RFRA is that it invites the courts to make public policy decisions on the basis of too little information, and when those policies are then put into practice with negative effects, the Justices lack the power or competence to fix the problem.

Before the Court leaps into crafting by itself federal policy on women’s reproductive health care through RFRA in the Hobby Lobby and Conestoga Wood cases, it should seriously contemplate its institutional limitations, think twice before discounting the government’s purposes, and employ common sense, even if it is interpreting RFRA.

The focus on a singular group or believer against the big, bad government must stop. The reality is that federal and state neutral, generally applicable laws exist to prevent harm to millions, and all exemptions come with consequences. If RFRA requires the Court to abandon common sense and ignore consequences, it is irrational.

CORRECTION: An earlier version of this column implied that UDV leaders might be personally responsible for the burgeoning problems with ayahuasca in the United States. That is inaccurate, and no disrespect of UDV believers was or is intended.