With New Jersey Governor Chris Christie drawing a line in the sand on quarantining those entering the United States who have been exposed or potentially exposed to Ebola, and other states following suit in one way or another, it is not too early to consider the many issues likely to arise. My fellow columnist, Mike Dorf, has introduced and discussed some of the Ebola quarantine legal issues here, but I am going to take the Ebola discussion down a new path: religious liberty versus public health.
What Happened to the Common Good?
Let’s agree on one thing: Ebola is deadly, and it is accepted medical wisdom that anyone who has been exposed to Ebola will develop it in 21 days or not at all. In addition, a person may have been exposed but have no symptoms for a while, and then develop it within that 21-day window. Therefore, those who have been exposed need to monitor their temperature and health for that 21 days for two reasons. First, to get to medical treatment immediately if they do develop early symptoms. Second, to protect others from contracting the deadly virus.
So far, we have two nurses who have not set a perfect example. First, we had the nurse who treated the only Ebola patient in the United States to die from the disease, who had a low-grade fever and contacted the CDC for advice on whether to fly. They unfortunately advised her it was fine, and she flew on a commercial airplane before the 21-day period was up, only then to come down with Ebola. Her life was saved through the best treatment the United States has to offer, but her trip potentially exposed hundreds to the disease. The result was that an airline and the government had to endeavor to contact every possible person on her trip, and go to the length of quarantining her dog! Had she remained in her home until the 21 days had expired, it would have been far better for the public. Her experience should have been instructive for all.
But then there is the nurse who recently returned from West Africa and loudly chafed at being quarantined in New Jersey. After twenty-four hours and a negative Ebola test, she was transported by private car to her home in Maine for the remainder of the quarantine period. Now, she is again complaining and has declared that she is not going to abide by Maine’s quarantine order. In fact, she has declared that she is going to sue for her “freedom” if the order is not lifted by Thursday. Freedom for what? To potentially infect others?
She is the epitome, the walking billboard, of what is wrong in the United States: a sense of irrational entitlement among some to the exclusion of the greater good. When even a nurse forgets that a sick person with a communicable, deadly disease owes an obligation to others beyond herself, we are in trouble. She is just the tip of the iceberg of those who can and will chafe if quarantining is needed in the future.
The Extreme Religious Liberty Statutes and Public Health
In this era of extreme, statutory religious liberty, with the federal Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the state RFRAs, expect individuals who do not believe in medical science or reject medical care as part of their religious faith to hang their objections to a quarantine law on these statutes.
The Supreme Court interpreted the federal RFRA in Burwell v. Hobby Lobby in a way that was shockingly deferential to the for-profit Hobby Lobby corporation, but it also seemed to indicate that the case was a one-shot-deal. We shall see if its reasoning translates into rights of believers to avoid being quarantined, and in particular quarantined in a hospital setting, but the very existence of these statutes raises problems for public health.
How RFRA and RLUIPA Could Hamper Efforts to Protect Against an Ebola (or Any Other Infectious Disease) Epidemic
Let’s say hypothetically that someone who is later found to have contracted Ebola is one of our citizens who does not believe in medical care, whether because she is a Christian Scientist, a Follower of Christ, or a member of the Church of the Unborn, or one of a number of other groups. If the law is that the infected person must be in isolation, under medical treatment, and in a hospital, she will object. Indeed, if she is required to conform her behavior in any way based on medical science, she will likely have an objection.
Under the First Amendment and the leading case, Employment Div. v. Smith, the believer would have no way of fighting a quarantine order that is meutral and generally applicable, which means that the believer would have no special privilege to avoid the law that applies equally to everyone else. That would be good news for the public. But with RFRA, RLUIPA, and the state RFRAs, believers can grasp tools to avoid even generally applicable laws and put others at risk.
If the federal government imposes a quarantine law, the federal RFRA would be the believer’s weapon of choice. If a state does, RLUIPA would be, because it applies to all state institutions (from hospitals to prisons). If there is also a state RFRA (assuming one is in one of the 20 states that have a state RFRA, as I discussed here), the believer has two bites of the extreme liberty apple against state law.
None of these extreme laws contain exemptions for public health and they all require that the government justify a law imposing a substantial burden on a religious believer with a “compelling interest” in the “least restrictive means.” As usual, it is this last requirement of a “least restrictive means” that can do the most mischief.
Under the modus operandi of these statutes, the courts are drawn in on a case-by-case basis to adjudicate whether a particular law can be applied to this particular believer.
A person who rejects medical science and medical care will have little trouble, at least under the Hobby Lobby reasoning, proving that a quarantine is a “substantial burden” on their religious conduct. Then the burden shifts to the government.
The first element for the government seems to me to be a no-brainer: Who can dispute that protecting Americans from a deadly disease does not serve a compelling interest? But what, exactly, is the least restrictive means in each case involving a quarantine and a believer who rejects medical science and/or care? Now the fun begins, because the believer and the judge get to play “trump that lawmaker.”
Let’s say we have a regime, wherein someone exposed to Ebola develops symptoms and is required by law to be taken to a hospital and placed in isolation. At this point, there are only a few hospitals in the country that can handle dealing with an active Ebola infection. Isolation is critical to stop the spread. Furthermore, the infected patient may not be released until she is Ebola-free, which requires intense medical treatment, including aggressive rehydration and often blood and plasma transfusions from an Ebola survivor. Even if she refuses treatment, thereby choosing death, she still must be isolated and cared for by those in the medical profession who are the only ones who know how to contain the active infection.
What is the least restrictive means of dealing with this situation? Well, according to the nurse who just “escaped” from New Jersey’s quarantine and headed to Maine, where her state, town, and neighbors were none too pleased to welcome her, it is to go home and monitor oneself. We see how hard that is to enforce with someone who objects on arbitrary grounds, as opposed to sincere religious belief.
In the case of the faith healer, if being quarantined at home is the “least restrictive means” what assurance would anyone have that the person would stay at home and not infect others? Or that the person would not infect the children in the home if the disease develops? The faith healer doesn’t believe in medical science or care and typically believes that obtaining treatment will destroy her spiritual future. If she does not abide by the quarantine, others’ lives are at stake.
The solution here is that the RFRAs and RLUIPA have no place in the context of any state or national health emergency. They should be repealed, as I have said before, but at the very least this is the moment when we have all received notice that every extreme religious liberty statute needs a public health exception at the very least, so that decisive and quick action can be taken to protect everyone. And so that we can avoid wasting precious time and public and judicial resources.
Finally, please do not buy the sanguine arguments from the RFRA and RLUIPA supporters who will calmly assert that these statutes won’t have any effect in such an environment. They will argue, no doubt: “Don’t worry, because this is so obviously important, there is a compelling interest.” What they will omit is their explanation of what each judge in each case for each believer will determine to be “the least restrictive means.” That is inherently unpredictable. The RFRA of 2000 was sold on the theory that it would not hinder federal civil rights. The Hobby Lobby decision proved it can and will.
Here is basic common sense: RFRA, RLUIPA, and the state RFRAs each need a public health exception.