Heather Payne & Norman Doe, Public Health and the Limits of Religious Freedom

• Citation: Vol. 19 No. 2
• Publication year: 2005

PUBLIC HEALTH AND THE LIMITS OF RELIGIOUS FREEDOM

Heather Payne

Norman Doe^*

INTRODUCTION

This study analyzes the papers submitted for the fourth meeting of the consortium in relation to Estonia, the Netherlands, Spain, Turkey, the United Kingdom, Canada, and the United States. It explores the treatment, in those papers, of limitations on the exercise of religious freedom with specific reference to constraints arising as a result of public health considerations.¹

This paper focuses on examples of limitation of religious freedom relating to identifiable considerations of public health, and it seeks to draw out relevant similarities and differences between the countries studied. The following also comments on significant gaps in the empirical findings and suggests possible future directions for research and analysis.

I. THE SCOPE OF PUBLIC HEALTH CONSIDERATIONS

Any analysis of the effect of public health on religious freedom must begin with some conceptualization of what might be included under the heading "public health." The World Health Organization ("WHO") (and generally accepted) definition of "health" is broad: "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."²From this flows the concept of "public health," which has been defined as "the science and art of preventing disease, prolonging life, and promoting health through the organised efforts of society."³

The Ottawa Charter (1986) of the WHO identifies five key areas through which promotion of the public health is effected:

1. Building healthy public policy

2. Creating supportive environments

3. Strengthening community action

4. Developing personal skills

5. Reorienting health services⁴

Moreover, the "fundamental conditions for health" are identified as "peace, shelter, education, food, income, a stable eco-system, sustainable resources, social justice, and equity."⁵Three basic strategies are proposed to effect health promotion:

1. Advocacy for health to create the essential conditions for health

2. Enabling all people to achieve their full health potential

3. Mediating between the different interests in society in pursuit of health⁶

From these definitions, areas, conditions, and strategies, it can be seen that "public health" is a broad concept involving not only the individual's own personal life choices, but also the community, society, and environment in which these choices are made. In all, public health embraces: (1) direct and corrective medical care; (2) the legitimate consideration and prescription of individual choices affecting healthy lifestyles-such as drug and alcohol use, diet, exercise, sexual health, health education; (3) health protection measures- such as immunizations, prevention of epidemics, use of seat belts, health and safety legislation, food safety; (4) wider environmental measures-pollution, contamination, road traffic planning, injury prevention, and (5) mental health promotion-promotion of participation, self identity, self esteem, resilience.

Public health is promoted most effectively through environmental change rather than individual action. This may be illustrated by the following examples of preventative measures:

• Burn injuries to children in the UK injured from standing in front of open fires in nightdress, were greatly reduced following mandatory introduction in the 1960s of flame retardant materials for such garments;⁷

• Accidental child poisonings in the UK were greatly reduced following the introduction of childproof medicine bottles in the

1970s;⁸

• Child deaths from drowning in private swimming pools in

Australia-the prime cause of death in young children-were massively reduced following legislation in the 1990s compelling the fencing of private pools;⁹

• Deaths of and injuries to car passengers resulting from traffic accidents in the United Kingdom and the United States were greatly reduced following introduction of mandatory seat belt use in the 1980s, with continuing subsequent child restraint legislation.¹⁰

There are a number of current major areas of public health concern that are likely to have some association with religious practice and observance. These issues are significant contributors to health problems worldwide and thus legitimate targets for public health action. Examples of some of the most significant include:¹¹

• Condom use and the spread of HIV (the world's biggest single factor killer)

• Nutrition and avoidance of starvation

• Immunization against preventable illness

• War, disasters and refugees

• Promotion of better mental health (a worldwide issue)

• Education of women and children (which correlates with infant survival and life expectancy)

• Population growth and balance (fertility, abortion and infant mortality)

• Injury prevention (industrial and road traffic accidents)

• Child care, discipline and protection

II. THE DIVERSITY OF HEALTH-RELIGION ISSUES AND APPROACHES

A. Drug and Substance Use in Religious Practice

The public health approach is that drugs and substances that are hallucinogenic and/or addictive are potentially dangerous and harmful to health, so their recreational use should not be encouraged. There are medicinal uses for the drugs, but these should be tightly monitored so that the risks can be balanced with the benefits. The approach of law is that drug use and trafficking are inherently harmful and dangerous. For this reason, laws may either forbid their use or else provide a restrictive regime for their use.¹²

Indeed, it is likely that in the majority of societies and cultures addictive substances legally available currently, such as alcohol and nicotine, would not pass public health safety criteria if they were being introduced de novo.

Legal evidence from the United States suggests two approaches to drug use in the religious context, depending on the drug in question: the employment of exemptions for religious drug use and the employment of blanket prohibitions. Peyote is a hallucinogenic substance, the unlimited use of which is generally understood to be harmful to health, though its use in certain circumstances has been helpful in overcoming alcoholism.¹³In the United States, twenty-three states provide an exemption for the religious use of peyote. Typically the exemption reads: "[t]he listing of peyote as a controlled substance . . . does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church . . . ."¹⁴Peyote use in sacred ceremonies has been understood judicially "as a sacramental symbol similar to bread and wine in certain Christian churches."¹⁵

However, by way of contrast, in some U.S. states the use of the peyote is illegal with no exception made for its religious use, and this prohibition has been upheld by the Supreme Court as not inconsistent with the constitutional protection of religious liberty.¹⁶Individual states are under no constitutional duty to create exemptions from their drug laws for the religious use of peyote.

Indeed, while the Court did not explicitly place the issue within the context of competing claims of public health and religious freedom, the Court concluded that the alternative position "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind . . . [including] health and safety regulation[s] such as manslaughter and child neglect laws . . . compulsory vaccination laws . . .

[and] drug laws."¹⁷Moreover, in the United States, the courts have decided that neither Rastafarians nor members of the Ethiopian Zion Coptic Church enjoy rights under the constitutional protection of religious freedom to exemption from criminal prohibitions against the use of marijuana.¹⁸

In the European context, there is some legal evidence of the same potential conflict between drug laws, an integral part of the public health system, and religious freedom. Again, two approaches seem to surface: regulated use and blanket prohibitions. On the one hand, judicial decisions may favor regulated religious exemptions to drug prohibitions. In the Netherlands, for example, an Amsterdam court has held that the use by a church of a tea (consisting of an illegal substance), as part of its sacramental worship, was permissible in spite of the prohibition in the Opium Act, on the basis of the ECHR right to religious freedom. The court found that the protection of public health represents a legitimate reason to restrict the use of the tea but granted an exception for strict regulation of availability, information on health risks of its use (especially contraindications to use on health grounds), as well as guidelines for usage. In short, in this case, regulation rather than prohibition maximized both religious freedom and protection of public health. On the other hand, some European states operate blanket prohibitions of drug use in the religious context on grounds of public health. For instance, in the United Kingdom, the law provides no special protection for Rastafarians for their use of cannabis on religious grounds even though one view proposes that "a policy of prohibition cannot be justified on health grounds and has proved in practice to be unenforceable."¹⁹

B. Blood...