CLEVELAND -- In striking down New York’s COVID-19 regulations Nov. 25 on the grounds they infringed on religious liberty, the U.S. Supreme Court insisted that “even in a pandemic, the Constitution cannot be put away and forgotten.” This lesson seems to be better remembered for some constitutional rights than for others.
Several states have taken divergent approaches to religious freedom and abortion rights during the pandemic. Both rights are protected by the Constitution. Both are fundamental. Yet, in some instances, they have received very different treatment.
With abortion, some states have emphasized that we must do everything possible to minimize risk during this health crisis, even if that means curtailing some people’s constitutional rights. A number have singled out abortion for greater restrictions that do not apply to comparable medical procedures.
Ohio, for example, while banning “elective” surgeries, allowed time-sensitive procedures to proceed and said individual doctors could decide whether a particular surgery should go forward. But then, the state applied different, less favorable rules to abortions, threatening abortion clinics with legal action and sending inspectors to examine their records. To our knowledge, they did not investigate any other health care providers.
In contrast, worship services have often been treated more favorably than similar secular activities. Many states banned mass gatherings above a certain size, as the coronavirus is most likely to spread by person-to-person contact indoors. But even as the states required the shuttering of schools, restaurants, theaters, shopping malls, concert halls, gyms, and other mass gathering places in the name of public health, a number – including Ohio -- allowed their houses of worship to continue with large religious services.
Caroline Mala Corbin is a professor of law at the University of Miami School of Law in Florida.
Of course, abortion services and religious services are two very different things. Abortion is a time-sensitive medical procedure. Most states have limits on how late an abortion can be performed. If you miss this deadline, you may be forced to carry to term.
Delaying or banning abortion also doesn’t make anyone safer during a pandemic. Women who stay pregnant still need to see a doctor. And because later abortions may require more complex procedures, even a delayed abortion increases, rather than decreases, use of protective equipment.
In contrast, you won’t lose your ability to practice your religion if you cannot congregate for a period of time. There are plenty of alternatives for those who need to continue to worship. It’s possible to worship alone at home. It’s possible to worship communally in small groups, at drive-in services, or via Zoom. To be sure, the experience is not exactly the same, but little in our lives today is exactly the same. And churches will still be there ready to welcome their congregations back when the restrictions are lifted.
Jessie Hill is a professor of law at the Case Western Reserve University School of Law in Cleveland.
In short, missing the human contact of in-person religious services by having alternate services is not the same as being forced to become a mother against your will because abortion has been banned.
What’s more, holding in-person church services during the pandemic is extremely risky. Coronavirus is most contagious when people are indoors talking and singing together for an extended period of time -- exactly what occurs when people congregate for religious services.
In fact, religious services have proven the site of multiple superspreader events. One study found that 35 of 92 people who attended church services at an Arkansas church acquired COVID-19, and subsequently infected at least another 26 people in the local community. Just last month, more than 200 cases were traced to a Massachusetts church, and over 213 cases, and 12 deaths, were linked to a church in North Carolina.
States ought to be more restrictive when the risk to the public is greater, not the other way around. Science, not politics, should be the guide.
Caroline Mala Corbin and Jessie Hill are professors of law at the University of Miami School of Law in Florida and Case Western Reserve University School of Law in Cleveland, respectively.
Have something to say about this topic?
* Send a letter to the editor, which will be considered for print publication.
* Email general questions, comments or corrections on this opinion column to Elizabeth Sullivan, director of opinion, at esullivan@cleveland.com.