If you’re not a physician, don’t rely on your own medical research. Sounds simple, no? But certain people sometimes must rely on their own guesses: federal judges. They don’t circulate their decisions before they announce them. So it’s hard for them to catch medical errors in their work.
You might infer that judges shouldn’t make public health decisions. Three Supreme Court justices disagree.
In Does v. Mills, a divided Court declined to block Maine’s requirement that health care workers be vaccinated against the coronavirus notwithstanding their religious objections. Justices Neil GorsuchNeil GorsuchWhat's that you smell in the Supreme Court? The Memo: Trump's justices look set to restrict abortion Five revealing quotes from Supreme Court abortion case MORE, Clarence ThomasClarence ThomasRoberts and Roe: The Supreme Court considers a narrow question on abortion Five revealing quotes from Supreme Court abortion case How religious liberty was distorted in the age of COVID-19 MORE and Samuel AlitoSamuel AlitoFive revealing quotes from Supreme Court abortion case The Supreme Court's criminal justice blind spot How religious liberty was distorted in the age of COVID-19 MORE dissented. “Where many other states have adopted religious exemptions, Maine has charted a different course,” Gorsuch wrote. “There, health care workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.”
Gorsuch argued that the regulation discriminates against religion. Maine “allows those invoking medical reasons to avoid the vaccine mandate on the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers. But the State refuses to allow those invoking religious reasons to do the very same thing.”
Why would a state allow medical but not religious exemptions? The medical part is easy. The state’s real aim is not maximizing vaccinations but preventing disease and death. That would not be served by forcing vaccines on those who would be endangered by them.
Religious accommodations always involve a guess about whether there will be so many claims that the law’s purpose will be thwarted — whether the exemption of the Catholic Mass from the 1919 Volstead Act’s prohibition of alcohol would lead huge numbers to convert to Catholicism just so they can imbibe (it didn’t), or whether exempting all pacifists would hamstring the military draft (at the end of the Vietnam War, it did).
Religious exemptions for COVID-19 vaccination in 2021 will almost certainly prolong the pandemic. Only 57 percent of the adult population is fully vaccinated. Vaccine resistance is a marker of Republican political identity. Because it is hard to contradict someone’s claim that their objection is sincere, religious objections are easily abused. A quarter of the workforce of the Los Angeles Police Department has claimed them, and 40 percent of the city’s police are still not vaccinated.
Gorsuch says Maine needn’t worry, citing its high vaccination rate. But that might be the result of the very regulation he wants to trash. How can he know? He can’t commission behavioral models or publish them for comment. He can’t revise his decree if he guesses wrong.
Maine also cited its interest in “preventing COVID–caused absences that could cripple a facility’s ability to provide care.” Gorsuch retorts that “unvaccinated medical objectors are equally at risk.” But people with genuine medical exemptions are extremely rare. They have never caused a disease outbreak that we know of. Religious exemptions produced measles outbreaks in New York and California. That is why those states (and eventually Maine) repealed their religious exemptions.
Gorsuch declared that “medical exemptions and religious exemptions are on comparable footing when it comes to the State’s asserted interests.” One wishes he had been able to show that sentence to public health experts (who had tried in vain to educate him) before he published it.
Most alarmingly, Gorsuch speculated that government may soon have no compelling interest in stemming the spread of COVID. There are vaccines; there are treatments. “If human nature and history teach anything,” he wrote, “it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” Last month, more than 45,000 Americans died as a result of the pandemic, and COVID was the second leading cause of death in America. Human sacrifice is protected as long as it is actuarial. If religious liberty is understood in this extravagant way, the longstanding consensus in favor of it will evaporate.
Justice Amy Coney BarrettAmy Coney BarrettWhat's that you smell in the Supreme Court? Overnight Health Care — Presented by March of Dimes — Supreme Court weighs abortion restrictions The Memo: Trump's justices look set to restrict abortion MORE, joined by Justice Brett KavanaughBrett Michael KavanaughWhat's that you smell in the Supreme Court? The Hill's Morning Report - Presented by Facebook - Biden talks up bright side beneath omicron's cloud Overnight Health Care — Presented by March of Dimes — Supreme Court weighs abortion restrictions MORE, concurring, said the Court should be cautious of decisions made “on a short fuse without benefit of full briefing and oral argument.” She has shown, however, that she is nearly as skeptical of public health measures against COVID as Gorsuch, and may eventually join him in mandating religious exemptions. She ought to understand that the same informational deficit plagues every court that would decide religious challenges to vaccines.
The Court used to be cautious about compelling religious accommodation, careful not to hamstring legitimate state interests. Until a few months ago, no U.S. court had ever held the First Amendment to grant a religious exemption to a vaccine requirement. Over more than a century, courts had universally rejected such claims. Yet judges now recklessly flirt with impairing America’s ability to respond to the worst pandemic in a century. Why?
Some parts of the Republican Party emphasized the traditional conservative parts of Trump’s program while staying away from his racism, cruelty and constant lying. Federal judges, including those he appointed, dismissed his baseless challenges to Biden’s election. Yet even these seemingly asymptomatic carriers present signs of continuing the damage of Trumpism.
Trump, for reasons best known to himself, decided early in the pandemic to minimize the disease, attack measures to control its spread, lie about the dangers (which, we now know, he understood perfectly well) and discourage mask-wearing. That helped make COVID a partisan issue.
The infection has spread to surprising places, and survives Trump’s presidency. Long COVID is terrible. But the Court may have something just as bad: long Trump syndrome.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.