Incarceration and Social Death - Restoring Humanity in the Clinical Encounter.

Abstract

n engl j med 384;3 nejm.org January 21, 2021 more, the Court’s finding that New York’s restrictions were not narrowly tailored because there was no evidence of viral transmission in the petitioners’ houses of worship and because other states had looser regulations suggests that states will not be able to act before super-spreader events occur or as long as other states take a more lax approach. This development presents states with a dilemma. In the absence of a national pandemic policy or sufficient stimulus support, many governors have responded to the new surge in Covid-19 cases by imposing fine-tuned restrictions in an attempt to protect health without decimating the economy. Some of these measures have affected religious liberty in troubling ways; others are epidemiologically questionable.5 For example, Rhode Island has banned all social gatherings in homes while allowing catered events.5 Unquestionably, courts must ensure that such measures do not serve as a pretext for discriminating against vulnerable people or quashing protected liberties. Nevertheless, the Court’s approach in Roman Catholic Diocese devalues federalism and public health, making it difficult for states to rely on science and craft finetuned measures in response to local conditions. Although courts should not abdicate their role during a pandemic, they also should not rush to assume an expertise they lack. Already, the case’s effects have been felt. In December, the Court ordered a lower court to reconsider its rejection of a challenge to a California regulation that affects in-person worship. Beyond the pandemic, Roman Catholic Diocese’s most important legacy may be the dethroning of Jacobson. Gorsuch is correct that Jacobson was not a free-exercise case and does not control such claims. Still, for more than 115 years, Jacobson has been the key precedent supporting vaccine mandates and other public health laws. It has also served as a reminder of the importance of public health evidence and the fact that “real liberty” cannot exist in the absence of reasonable restraints to protect the public’s health. With Jacobson apparently sidelined, the future of many public health laws, including and especially vaccine mandates, appears perilous.