JURIST Guest Columnists James G. Hodge Jr. and Gregory Measer of the Sandra Day O’Connor College of Law, Arizona State University, discuss the potential impact of the Religious Freedom Restoration Act in Indiana and other states on protecting and promoting the public’s health …

Fierce debates and extensive media coverage have centered on potential for discrimination arising from Indiana’s recent passage of its Religious Freedom Restoration Act (RFRA). Although Congress and twenty other states have previously passed similar legislation (and other states are currently considering reforms), Indiana’s version may take respect for religious beliefs to new heights. Critics suggest, for example, that Indiana’s law could allow religiously-minded private sector businesses and others to refuse wedding or other services to same sex couples.

Large and small businesses, as well as organizations including the Indianapolis-based National Collegiate Athletic Association (NCAA), have openly objected to potential religious stigmatization based on sexual orientation and gender identity. Refusing to repeal RFRA outright, Indiana Governor Mike Pence and the State legislature have recently amended the Act to clarify that it does not allow unwarranted discrimination.

So what exactly does Indiana’s RFRA allow? Arguments over the prospect of direct discriminatory acts center on the rights of others in the face of religiously-grounded bigotry. Yet, additional issues relate to the potential public health impacts of RFRA in Indiana and elsewhere. Bestowing individuals with stronger “free exercise” rights than the US Supreme Court was willing to recognize nearly two decades ago in Employment Division v. Smith is laudable. However, to what extent may greater recognition of religious freedoms impinge diverse public health programs or efforts for which persons or communities may disagree on religious grounds?

Think about religious or moral objections to public health interventions to vaccinate children or adults; screen persons for various conditions; or distribute safe, hypodermic needles to prevent spread of HIV or other infectious diseases. Assessing the potential for RFRA to negatively impact these and other public health initiatives raises four essential questions: (1) who is a “person” under RFRA? (2) what is meant by one’s “exercise of religion?” (3) when may government “substantially burden” this exercise? and (4) could specific laws authorizing or supporting public health programs be negated?

Indiana’s Expansive Respect for Religious Freedoms

Understanding the scope of RFRA in Indiana and other jurisdictions begins with an assessment of whom it applies. The concept of “person” extends well beyond individuals to include partnerships, corporations and associations that operate primarily for religious purposes or exercise certain practices compelled or limited by their religious beliefs.

This definition reflects in part the extension of federal RFRA protections to closely-held, for profit corporations by the US Supreme Court in Burwell v. Hobby Lobby Stores (2014). To the extent that corporations and other business entities are comprised of individuals, reasoned the Court, they can exercise religious beliefs much like natural persons. “Exercise of religion” includes any exercise “whether or not compelled by, or central to, a system or religious belief.” Direct infringements on one’s exercise of religion (e.g., government restrictions on when and where one can worship) are easy to discern.

Less direct infringements can be more difficult to judge.

In American Life League, Inc. v. Reno (1995), Virginia-based abortion opponents challenged the constitutionality of the federal Freedom of Access to Clinic Entrances Act (FACE). They argued that their religious opposition to abortion “requires them to obstruct physically, through peaceful picketing, access to clinics offering abortion services.” The US Court of Appeals for the Fourth Circuit agreed, but still “saved FACE” by holding that the Act served a compelling governmental interest via the least restrictive available means. Similarly, in Planned Parenthood v. Walton (1996), the plaintiffs argued unsuccessfully that FACE burdens their “religious mission of helping abortion bound women.”

These claims illustrate the potential breadth of what constitutes “substantial burdens” of the exercise of religion. Since neither the federal nor Indiana RFRAs define this concept, courts are left to assess the extent that an exercise of religion, whether reasonable or not, is burdened. In Hobby Lobby the court found that DHHS’ employer contraceptive mandate presented a substantial burden because the corporation was required to “engage in conduct that seriously violates [its] religious belief,” namely paying for reproductive services.

In US v. Jefferson (2001) a federal court in Indiana broadly defined substantial burden as “one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs or compels conduct or expression that is contrary to those beliefs.” Under this standard, minor infringements of an exercise of religion are not ripe for suit under RFRA. Furthermore, government can always overcome a showing of substantial burden by demonstrating that its law or program furthers a compelling governmental interest by the least restrictive means.

Potential Impacts on the Public’s Health

Balanced against the need to demonstrate substantial burdens of religious exercises, Indiana’s RFRA provides a relatively safe harbor for many public health initiatives. It is not enough legally for someone to suggest that a specific public health program conflicts with or is contrary to their religious beliefs.

Plenty of people do not agree with how government spends revenues on public health programs to protect maternal and reproductive health, prevent obesity, screen newborns or control guns. Some seek to opt out of specific programs (e.g., sex education courses in public schools) based on religious objections. Their personal disagreements alone do not threaten the viability of these communal efforts pursuant to RFRA. According to the Act,”[g]ranting government funding … to the extent permissible with the Establishment Clause” is not a RFRA violation.

In other cases, however, respect for individuals’ religious beliefs could theoretically impact public health objectives. For example, expanding the array of objections to school vaccination requirements based on loosely-held religious beliefs pursuant to RFRA may further diminish herd immunity leading to increased outbreaks of measles, whooping cough and other childhood diseases.

Needle Exchange Programs and HIV Prevention

A fascinating case related to RFRA and the public’s health entails Indiana Governor Pence’s recent declaration [PDF] of a public health emergency on March 26, 2015 in response to a localized outbreak of HIV infections in rural Scott County. The declaration authorizes temporary local implementation of a needle exchange program (NEP) to counter the spread of HIV among over 85 individuals, largely intravenous drug users (IDUs) hooked on the prescription drug, Opana.

NEPs have long been outlawed in Indiana and multiple other states despite their known efficacy in limiting the spread of HIV among IDUs directly and their sexual partners indirectly. Some believe, largely without public health justification, that distributing free hypodermic needles to IDUs propels illicit drug habits.

Coupled with the US rise of HIV, NEPs were once objected to on religious grounds [PDF]. Handing out free needles to sinful, law-breaking drug users and their HIV-infected partners was viewed as contrary to moral and religious principles. Experiments to test the efficacy of needle exchanges in New York City in 1989, for example, were initially opposed by some religious leaders. Reverend Calvin O. Butts of the Abyssinian Baptist Church in Harlem declared [PDF] he was “not in favor of cooperating with evil,” a position he later recanted in 1991.

These and other views fell silent as the utility of NEPs in preventing new cases of HIV was demonstrated. In 2009, a multi-denominational panel of religious leaders convened in Washington, DC to urge federal leaders to fund NEPs. Journalist Sara Friedman observed: “In the last decade or so, since religion has taken on the HIV/AIDS pandemic … the concept of sin has given way to human weakness, and punishment to compassion.”

Despite reluctance among Catholic leaders to expressly endorse NEPs, they and other religious groups, have increasingly recognized that supplying clean syringes to IDUs prevents HIV transmission. The Catholic Diocese of Albany (NY) [PDF] reportedly operates its own program, Temple Israel in NYC donates to BoomHealth which conducts syringe exchanges and multiple churches financially support the Free Medical Clinic of Greater Cleveland, which runs a NEP.

Still, the federal government and many states, including Indiana, ban the use of government funds for NEPs. Only by declaring a public health emergency was Indiana’s governor able to waive existing criminal drug paraphernalia laws that disallow implementation of such exchanges for the duration of the emergency. This unique status begs the question: if Indiana’s existing legal ban of NEPs is lifted temporarily to further the public’s health, could it be reversed due to religious objections grounded in RFRA? The answer seems to be “no” for legal and political reasons.

First, by the very same emergency authority through which Governor Pence waived existing laws prohibiting NEPs, he could also waive conflicting provisions of RFRA (at least for the duration of the emergency). Of course, the Governor’s waiver of RFRA may be politically difficult given how hard he has worked to defend it.

Second, as noted above, RFRA expressly disallows religious-based objections to approved government expenditures otherwise consistent with the Establishment Clause. Yet, this limitation only thwarts objections to uses of government funding, but not to government’s direct administration of specific programs that impinge on religious exercises.

Third, despite objections in the early days of the HIV epidemic, few solid, religious arguments remain to denounce the utility of NEPs. Under RFRA’s current statutory construction and court interpretations, however, a person need only show that one’s religious objection is grounded in some faith-based principles no matter how unreasonable others may find them.

Fourth, even if a Hoosier is religiously opposed to exchanging needles for the benefit of IDUs, demonstrating that direct government administration of NEPs “substantially burdens” these beliefs is a hard sell. How is one remotely burdened by the fact that safe needles are provided to IDUs in their communities? Perhaps these same persons feel burdened by the presence of abortion clinics in their community? That is too bad. As noted above, access to private abortion services is constitutionally-guaranteed. Yet, access to safe needles is not.

Religious objections to NEPs do not interfere with others’ constitutional interests, but courts may still acknowledge a substantial burden emanating from government’s allowance of needle exchanges. This may be especially true if the NEP interferes with one’s religiously-grounded efforts to help IDUs break their “sinful” drug habits. A church, for example, may conduct regular drug prevention programs for IDUs only to see the local public health clinic distribute free needles that allegedly facilitate their drug use. Modern scientific findings on addiction behaviors may circumvent prior views vilifying IDUs, but some religious persons may still believe otherwise.

Finally, presume for the moment that the limited, free distribution of needles substantially burdens someone’s exercise of religion. Under RFRA, government still wins if it (a) can show the burden furthers a compelling governmental interest (like preventing future cases of HIV in a declared public health emergency) and (b) is pursuing the “least restrictive” means of furthering that compelling interest.

Whenever government has to demonstrate its chosen path is the least restrictive alternative via strict scrutiny, results are unpredictable. There are invariably other paths government take that may be less restrictive on individual freedoms, including religious freedoms. For over 30 years NEPs have been considered “off the menu” of public health interventions as federal and many states’ governments refuse to fund them. Interestingly, following the temporary allowance of NEPs by Governor Pence, Indiana’s House public health committee introduced a bill to allow routine use of NEPs to combat the spread of Hepatitis C. Passage of the bill is uncertain at best.

It may be hard to fathom that during Indiana’s declared public health emergency, government may avoid use of NEPs to counter the spread of HIV based on religious objections despite sound public health science. Still it has happened before concerning needle exchanges, and could theoretically happen again.

James G. Hodge, Jr., JD, LLM, is the Associate Dean for Grants and External Funding, Professor of Public Health Law and Ethics, and Director, Public Health Law and Policy Program at the Sandra Day O’Connor College of Law at Arizona State University (ASU).

Gregory Measer, J.D. Candidate (2015), is a Senior Legal Researcher at the Public Health Law and Policy Program at the Sandra Day O’Connor College of Law, ASU.

The authors acknowledge the following individuals for their research and editing assistance: Kim Weidenaar, JD, Asha Agrawal, and Matt Saria with the Public Health Law and Policy Program, Sandra Day O’Connor College of Law, ASU.

Suggested Citation: James G. Hodge, Jr., Gregory Measer, Indiana’s Religious Freedom Restoration Act, Needle Exchanges, and the Public’s Health , JURIST – Academic Commentary, April 14, 2015, http://jurist.org/academic/2015/04/hodge-meager-religious-freedom.php