Hot-Button State Health Laws Hit With First Amendment Challenges

Conservative groups increasingly are using the First Amendment to challenge state laws and policies on vaccines, gender, and more, arguing they violate their religious rights and seeking to drive disputes to a receptive US Supreme Court.

Recent decisions by the high court are paving the way for lawsuits that would chip away at state legal frameworks seen as in conflict with religious views. The thinking goes that First Amendment religious protections should guarantee people exemptions to things like school vaccine mandates and having to provide abortion services. Critics warn that threatens to upend decades of health policy.

“Advocacy organizations, anti-vax organizations, anti-trans organizations, and pro-religious groups are litigating, seeing the First Amendment as a much more fruitful path to getting their policy adopted,” said Lawrence Gostin, a Georgetown Law professor.

Many Americans favor the types of state policies under attack. Over 60% of Americans are highly confident in childhood vaccines, while over half of voters think conversion therapy—the core issue in the Supreme Court’s recent Chiles v. Salazar ruling—should be banned.

Others, however, think the time is ripe for such challenges, particularly in light of heightening restrictions following the Covid-19 pandemic.

“A lot of people took for granted for a long time that people of faith could make decisions about their healthcare consistent with their faith,” said Hiram Sasser, executive general counsel for First Liberty Institute, a group specializing in religious liberty cases.

Sasser said to consider Miller v. McDonald, a case brought by Amish parents—with the help of First Liberty Institute and Aaron Siri, an attorney who has worked with US Health and Human Services Secretary Robert F. Kennedy Jr. on vaccine matters—after New York state eliminated religious exemptions to vaccine requirements. A federal appeals court initially sided with New York, though the Supreme Court vacated the ruling.

“These clashes that we’re having now under the umbrella of health policies are brand new,” Sasser said. ”You’re going to see an uptick in First Amendment challenges because this is the first time that the government has decided to venture out in this aggressive way on these very personal issues.”

‘Growing Trend’

Scott Skinner-Thompson, a law professor at University of Colorado, Boulder, focusing on constitutional and LGBTQ+ issues, considers First Amendment lawsuits over state health policies and adjacent areas like education a “growing trend.”

A driver of this trend is the Alliance Defending Freedom. The Christian legal group is involved in challenges such as the one to an Illinois law that requires medical professionals to inform patients about where to get an abortion if requested.

ADF recently drew attention with its victory in Chiles v. Salazar, in which an 8-1 Supreme Court ruled in favor of a Christian counselor who asserted she had a constitutional right to provide talk therapy to try to change a child’s sexual orientation or gender identity.

ADF declined to comment for this article.

“We have seen the First Amendment continue to be used to chip away at laws designed to keep people safe,” Skinner-Thompson said. One example is the US Court of Appeals for the Fourth Circuit’s Perry v. Marteney. In that case—which also involved Siri’s firm, Siri & Glimstad LLP—a student attempted to get a religious exemption to a West Virginia vaccine mandate.

The mandate prevailed.However, in a dissent, Judge Paul V. Niemeyer said the majority view “curtly dismisses” the fact that the family holds “sincere religious beliefs against vaccination.”

Tools of the Trade

Seth Chandler, a University of Houston Law Center professor specializing in constitutional matters, said a “confluence” of things are creating “powerful tools that can be used to challenge some traditional healthcare regulation.”

Among them, Chandler said, a “heightened concern for parental rights” as evident in the Supreme Court’s Mahmoud v. Taylor, a case driven by the Becket Fund for Religious Liberty. In that case, the Supreme Court ruled a Maryland county likely violated the Constitution by using LGBTQ+-friendly books without notifying parents.

Another factor: the high court adopting the most-favored nation doctrine, which Chandler explained as saying “that if you provide any form of exception, then you have to treat religious exceptions the same way.”

There’s a “collection of doctrines that the Supreme Court has moved incrementally on, and each one of them tends to favor challenges to a number of traditional public health or mainstream medical regulation,” Chandler said.

Wendy Parmet, a Northeastern University law professor, said the “the Supreme Court has been not very hospitable or ruled favorably very often to what we used to call right to privacy claims,” which include things like the right to control one’s body.

“Those claims are not doing too well these days,” Parmet said. “Turns out in many cases you could take that same kind of claim and bring it as violating your right to exercise your religion.”

‘Forever Issue’

The justices’ posture is likely to influence litigants in bringing challenges.

“If there’s one touchstone to that majority, it is religious freedom,” Gostin said. “You can expect the court to be very aggressive, and you can also expect advocacy groups to recognize that and have an organized, well-financed litigation strategy around the First Amendment.”

When left to state legislatures, laws can be passed and later reversed. However, if courts “are making constitutional rulings, that’s a forever issue,” Gostin said.

Sasser said the time is ripe for First Amendment challenges due to shifting policies around issues like transgender care, abortion, and vaccine health.

“A lot of people are asserting rights that they did not know they were ever going to have to assert—things that they just took for granted,” Sasser said.

He said “one of the byproducts of Covid and then some other more recent cases where the government was really reaching into people’s religious lives” was people having “more of a fighting chance of winning their case.”

Now “we actually feel like we have a fair shot at a merits win,” Sasser said.