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.

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.