Religious Exemptions As Rational Social Policy

Religious Exemptions As Rational Social Policy

Justin W. Aimonetti & M. Christian Talley

 

 

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Abstract

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith, the Court then abandoned the Sherbert regime altogether. Incidental burdens would no longer suffice for Free Exercise exemptions. Instead, Smith predicated future exemptions on litigants’ showing that laws unfairly targeted religious practice or granted exemptions to secular entities that were arbitrarily withheld from religious comparators. Smith’s revision, this Article contends, subtly but profoundly changed how public policy interacts with the Free Exercise Clause. Smith created a world in which religious exemptions often promote, rather than impede, rational policy. Smith’s framework helps detect laws that are rooted in animus, rather than reason, or that impede their own efficacy with gratuitous secular exemptions. Applying that insight to recent religious liberty litigation contesting coronavirus lockdowns, this Article contends that many of those suits made state responses to COVID-19 more rational. Despite the scholarly criticism religious litigants endured, their suits exposed both irrational over-enforcement of lockdown measures against religious entities and irrational under-enforcement of those measures against their secular counterparts.

Mobile Methadone Clinics: A Necessary Step in Fighting the Opioid Epidemic

Mobile Methadone Clinics: A Necessary Step in Fighting the Opioid Epidemic

Laurel E. Via

 

 

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Introduction

In the 1990s, healthcare providers began prescribing opioid pain relievers at greater rates in reliance on pharmaceutical companies’ claims that the drugs would not cause addiction. However, that turned out not to be the case. Due to the highly addictive nature of opioid pain relievers and the frequency with which they were prescribed, individual addiction rates substantially increased. Since then, opioid addiction has spiraled out of control with prescription and illicit opioid usage continuing to rise.

Prescription drugs are only part of the problem. While prescription opiates caused a wave of deaths starting in the 1990s, there have been two subsequent death waves related to opioid abuse. In 2010, the second wave began with an increase in the number of heroin overdose-related deaths. The third wave began in 2013 with increases in overdose deaths caused by synthetic opioids, including fentanyl and other illicit drugs laced with fentanyl.

A number of treatment options have been tried in response to what has now been titled the “Opioid Epidemic.” The most effective treatment for opioid dependence is methadone maintenance, which has been shown to reduce the number of opioid-related deaths and the spread of infectious disease. However, many individuals who would benefit from methadone maintenance treatment are unable to access treatment. This is due to a variety of factors, such as inadequate funding, restrictive zoning regulations, and waitlists at fixed-site clinics. Additionally, methadone can only be dispensed by a federally licensed opioid treatment program (“OTP”), also known as a “methadone clinic.” When unable to access treatment, opioid-dependent individuals are “at substantial risk for illicit drug use, criminal activity, infectious disease, overdose, and mortality.” However, when they have access to appropriate treatment, patients begin to recover in all areas of life—housing, health, employment, and education. When this treatment is combined with behavioral treatment, patients experience even better outcomes.

While individuals throughout the country lack access to methadone maintenance treatment, the issue has been extensively studied in rural communities. Individuals living in rural communities, such as southwestern Virginia and West Virginia, have higher instances of opioid addiction but fewer treatment options. Not only are rural areas experiencing a shortage of treatment facilities, but there are additional barriers to treatment in those localities that have at least one facility, such as waitlists, drive times, and transportation costs. Mobile methadone clinics have been proposed by numerous organizations and individuals—ranging from the Substance Abuse and Mental Health Services Administration (“SAMHSA”) to United States Senators and Representatives to state and local addiction agencies—as the solution to the problem of access to treatment. The facility shortage could be fixed by simply implementing the mobile clinics. More facilities would in turn reduce the number of individuals on waitlists. Drive times and transportation costs would also be significantly reduced or abolished altogether with the implementation of mobile clinics.

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

Amelia G. Collins

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Introduction

When courts imply a cause of action under a Bivens analysis and when they apply an immunity as a defense, they are acting in their capacity as common-law courts.[1] However, each of those mechanisms developed differently, and the Supreme Court of the United States has been hesitant to utilize one—Bivens causes of action—while generously applying the other—qualified immunity. The purposes behind each device were originally antithetical, with Bivens aiming to deter unconstitutional conduct and qualified immunity seeking to ensure courts did not deter too much. However, the Supreme Court gradually restricted its Bivens jurisprudence, from granting a cause of action unless there are “special factors,” to denying a cause of action whenever there are “sound reasons.”[2] As a result, the practical outcomes of both analyses are the same: plaintiffs cannot fully vindicate their constitutional rights and often cannot vindicate them at all. This Comment argues that, to ensure the vitality of the foundational presumption that for every legal right, there is a remedy,[3] the Supreme Court should restore its Bivens analysis to the original framework, invoking only those “special factors” recognized in the Court’s initial extensions of a cause of action to plaintiffs bringing constitutional claims.

That would mean abandoning the catch-all “sound reasons” espoused in Ziglar v. Abbasi[4] and followed in the Court’s most recent Bivens decision, Hernández v. Mesa.[5] It would mean considering only whether the issue is purely a matter of policy—that is, one that does not implicate a constitutional right—or whether the issue raises extraordinary separation-of-powers concerns. A restoration of the original Bivens framework would ensure that federal actors can be held accountable when they violate the Constitution. The court-created doctrine of qualified immunity would remain a defense, but, at the very least, the courts would reprise their proper role in the protection of constitutional rights.

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues for the restoration of the original, more limited “special factors” jurisprudence—and an abandonment of the incorporation of qualified immunity concerns—to facilitate the vindication of constitutional rights.

 


    

    [1].    See Richard H. Jr. Fallon, Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 949 (2019) (“Absent statutory authorization, a right to sue for redress of a constitutional violation is a species of common law, crafted by the courts to implement the Constitution in the absence of a necessary one-to-one correlation between a constitutional right and a particular remedy for the right’s violation. Bivens’ innovations were to ground a cause of action in federal rather than state common law and to put alleged constitutional violations at the core of the right to sue.”).

        [2].    Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).

        [3].    Marbury v. Madison, 1 Cranch 137, 162–63 (1803).

        [4].    Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).

        [5].    Hernández v. Mesa, 140 S. Ct. 735, 743 (2020).

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