Your Laws on RFRA (Justia.com)

Last week, the Supreme Court Justices struggled to figure out how to apply the Religious Freedom Restoration Act (RFRA) to the Affordable Care Act in the contraception mandate cases. In their defense, it is not easy, because RFRA is a black box, as I discuss on Alliance for Justice.

RFRA’s application does give us important clues, though. For example, after RFRA was in place from 1993-1997, and landlords invoked it to keep unmarried couples out of their apartment buildings, we learned that high on many of the religious entities’ RFRA agenda was overcoming the civil rights laws. We also have recent evidence that when the courts apply RFRA to federal laws, all hell breaks loose.

The 2006 RFRA Decision Holding That a Small Religious Group Has Rights to Use an Untested and Illegal Drug

In 2006, in its first and only RFRA decision on the merits to date, the Supreme Court held in Gonzales v. O Centro Esprita Beneficente Unio do Vegetal (UDV) that a small religious group had shown a likelihood of winning on the merits under RFRA to drink ayahuasca tea, which contains an illegal and untested drug, DMT, as part of their religious ceremonies. DMT is on the list of Class I drugs banned by the Controlled Substances Act.

In O Centro the government argued that it had a compelling interest in the uniform enforcement of the drug laws. The Court rejected this theory and held that because the federal government had granted an exemption to the Native American Church for the use of peyote, which is also a Class I controlled substance, it had to permit the religious use of ayahuasca tea and the DMT in it to this small religious group. I could not understand at the time how the Court could so blithely permit the use of an illegal, untested drug. Now we have proof of how foolish RFRA and the O Centro decision are.

To preview my main point: the courts have no business deciding who gets a religious exemption to federal and state laws. They simply don’t have enough information nor do they have the capacity to fix the social problems that are generated by these decisions.

The rhetoric from the religious groups at the time of the O Centro decision was that the federal government’s enforcement of the drug laws made it a big, bad bully against this tiny, South American religious group, and that they would never do any harm. They were pure and bright, and the government was unreasonable. As it turns out, neither proposition is true.

The New and Thriving Shaman-supplied Market in Ayahuasca

In a story just last month, the magazine Marie Claire published a disturbing article on the popularity of ayahuasca for wealthy men and women seeking “enlightenment in a cup.” It charts ayahuasca’s pop culture rise: “[t]he drug has turned up in the Jennifer Aniston film Wanderlust and the television series Weeds, and it’s made vocal fans of Paul Simon, Sting, Tori Amos, and Indie musician Ben Lee. More quietly, in the last few years, an underground ayahuasca scene has been growing steadily in the States, where it is illegal” unless you are using it for religious purposes, thanks to RFRA. Accordingly, “[h]ush-hush ceremonies led by traveling shamans have cropped up in trendy neighborhoods” as well as the corporate law, Ivy League academic, and high-fashion worlds.

The drug is typically sold by a shaman (of the UDV or another group), reportedly at $200-250 for each experience, and the psychedelic experience is guided by a shaman. You need a bucket by your side as you may vomit, and it can yield terrifying nightmares or miraculous insights, not to mention diarrhea. It has been used in South America for centuries, and its devotees are passionate about its upside.

The Negative Effects of the Shaman Trade in Ayahuasca

One need only read the comments following the Marie Claire article to obtain some insight into ayahuasca negatives. First, the shaman is necessary, the participants are disabled during the psychedelic trip, and there are numerous reports of ayahuasca shamans who have raped or fondled women under the influence. One woman notes that the article “fails to mention the many women who are raped or mistreated by ‘shamans’ during or after ceremonies. The ayahuasca experience can be very disorienting, and the lines of consent become easy to blur.” Another comment declares that there are many shamans who are “self-serving abusers.” Yet, another declares that the drug should not be taken alone, because a “learned guide” is needed to “help with difficult psychospiritual experiences.”

Second, the drug is neither prescribed by a doctor or psychiatrist nor dispensed by a pharmacist, and has not been studied in the United States to determine its interaction with other drugs. Thus, one of the comments delivers the troubling advice: “just don’t take certain pharmaceuticals with it.”

Third, the drug itself has harmed people. A father talks about his 27-year-old daughter who “l[o]st her mind after goin to a dozen ceremonies” in a year, leading to his now “living the nightmare with her currently.” From another comment we learn that it is dangerous apparently for those with “deeply rooted psychological issues.”

An Internet search will reveal many others expressing similar concerns, as well as a lot of secular fans.

The RFRA Disempowerment of the FDA

Another one of the comments following the article declares that she wishes the “writer would stop referring to ayahuasca as a drug – it is not, it’s a medicine, used therapeutically not to get high!” I suppose what she means is that it is not a recreational drug, but her claim to therapeutic value is a reminder that the FDA has never had a chance to consider it, let alone approve it. Under federal law without the RFRA modification, a drug on the Class I list of controlled substances is not available to the public until it has been tested through FDA processes measuring effectiveness, potency, the potential to interact negatively with other drugs, side effects, therapeutic value, appropriate dosage (by gender, age, and weight), and safety.

RFRA single-handedly short-circuited the entire FDA approval process for ayahuasca. The Court, by mechanically reasoning that the federal government’s religious exemption for peyote leads to the conclusion that it must also permit the use of ayahuasca under RFRA serves no one, even the UDV, which now must have its clergy thrust under the harsh spotlight of charges of rape, drug-dealing, and profiteering. It has empowered and enriched shamans, who are “ministering” by and large to secular seekers; has created conditions where women are at risk of unscrupulous shamans (who are the only legal source for the drug); and has legitimized its widespread use with all of the risks attendant upon exclusion of the FDA’s involvement. In short, the FDA has been made irrelevant.

When users suffer permanent psychological or physical injury, or become ill or die after mixing it with prescription drugs, whom can they hold accountable? The UDV? Sadly, neither Congress nor the Court can be sued for their negligence in RFRA’s enactment or interpretation.

The Court’s RFRA Ayahuasca Folly Is Out of Its Hands

A critical problem with RFRA is that it invites the courts to make public policy decisions on the basis of too little information, and when those policies are then put into practice with negative effects, the Justices lack the power or competence to fix the problem.

Before the Court leaps into crafting by itself federal policy on women’s reproductive health care through RFRA in the Hobby Lobby and Conestoga Wood cases, it should seriously contemplate its institutional limitations, think twice before discounting the government’s purposes, and employ common sense, even when interpreting RFRA. The romanticizing of the small religious group, or the lone believer, against the big, bad government must stop. The reality is that neutral, generally applicable laws exist to prevent harm; religious actors who are permitted to violate such laws will harm those intended to be protected by the law; and no exemption comes without consequences. If RFRA requires the Court to abandon common sense and ignore consequences, it is irrational.