This Editorial Is Not About Abortion or Vaccine MandatesBettina Krause November/December 2021
History is replete with stories of public policy gone awry. One common tale—which is probably apocryphal—is from nineteenth-century India. According to this story, British authorities in Delhi were alarmed at the number of dangerous cobras in the city and offered residents a bounty for every dead snake they could produce. What officials hadn’t counted on, however, was the enterprising spirit of individuals who soon began breeding cobras for an easy profit. When city authorities woke up to what was happening, they promptly shut down the cobra buy-back program. The cobra breeders, quite naturally, released their no-longer-valuable snakes. The net result? An unforeseen expansion of Delhi’s cobra population.
The law of unintended consequences (sometimes called the cobra effect) entered modern sociological thought in the 1930s through the work of Robert Merton, then a young graduate student at Harvard. In a nutshell, his theory was that “purposive social action” will always have both intended consequences and unintended consequences.1
Merton’s observations capture a timeless truth about civil governance. That is, charging forward to implement public policy with only a heart full of good intentions and an eye to short-term outcomes is rarely a good idea.
Case Study 1
As I write this editorial, my Twitter feed has been hijacked by the legal circus surrounding the Texas abortion law, which openly defies current constitutional law. When the Texas legislature passed Senate Bill 8 limiting abortions back in May this year, the move was embraced by many who hold deep convictions about the sanctity of life. But just for a moment, let’s focus on only the mechanism of this law, and not its subject.
Here’s why the mechanism of this law is unique: instead of requiring state prosecutors to enforce its provisions (which under current constitutional law is impermissible), the law empowers private citizens to sue anyone who supports or carries out an abortion or who intends to do so. And there’s a healthy financial incentive to do so. In successful suits the Texas law provides for a payment of $10,000 from defendant to plaintiff.
In essence, as Supreme Court justice Sonia Sotomayor put it, this law is an attempt on the part of a state to “evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”2
Consider for a moment the significance of this. A state legislature has carefully crafted and passed a novel law that’s solely designed to sidestep a constitutionally protected right. And in doing so, it has created a tremendously adaptable legislative blueprint for how lawmakers can evade constitutional restraints on their actions.
Using the reasoning of this approach, why couldn’t a law empower “citizen bounty hunters” to sue members of a disfavored religious group who gather for worship? Or what about a law forbidding criticism of a particular party or politician, which leaves enforcement in the hands of private citizens?
Case Study 2
The law of unintended consequences can apply not only to lawmakers and public officials but also to individual citizens.
The question of religious exemptions from vaccine mandates is currently generating tremendous angst in our nation. Although the Supreme Court has never held exemptions to be constitutionally required, most state vaccine mandate programs have traditionally included a religious exception. And of course, employers under the Civil Rights Act of 1964 have a responsibility to reasonably accommodate their employees’ religious beliefs. (For more on this, see Jennifer Gray Woods’ insightful article on page 24 of this issue.)
Yet quite apart from all these legal issues and debates, there’s something else that concerns me just as much—the misuse of the language of religious freedom.
Clearly, in these difficult times, many people have concerns about vaccine mandates. Mandates inherently feel coercive. Or people may distrust the government, or they may have doubts about the efficacy or safety of a vaccine. These are all matters of individual understanding and choice that should be addressed.
But these are not issues of religious freedom.
Yes, of course there are faith groups and individuals whose longstanding religious convictions have led them to reject vaccinations of all kinds. But there are many others for whom this isn’t the case.
Attempting to cloak what are fundamentally nonreligious objections in the garb of a religious conviction brings the whole concept of religious exemptions into disrepute. And this may cause lasting harm, far beyond the immediate question of vaccine exemptions.
In some quarters of our society there’s a steadily growing hostility to the very existence of religious exemptions in a whole range of legal areas. There’s increasing momentum to rein in “special treatment” for religion. Inevitably, the actions of those who abuse the language of religious freedom and religious exemptions will only fuel this hostility.
The misuse of the language of religious freedom in one area will eventually erode our ability to defend religious liberty rights in other areas—whether that’s defending someone’s right to keep both their holy day and their job, or a church’s right to preserve the religious identity of its school or charity.
I doubt very much that those who drafted and supported passage of SB 8 intended to create a legislative “how-to guide” for subverting other constitutional rights. Nor do I believe that those who are misusing religious exemptions to evade vaccine mandates are intending to undermine religious accommodations and protections on a whole range of other fronts. Yet that’s the nature of the law of unintended consequences—these things are, by definition, unintended.
Renowned jurist Oliver Wendell Holmes recognized that some issues that come before the courts carry such a sense of moral or emotional urgency that clear-eyed assessment in the moment becomes very difficult.
“Great cases like hard cases make bad law,” he wrote in 1904. “For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” 3
And it’s in emotionally charged circumstances such as these where the law of unintended consequences often comes into play.
So this editorial is not about vaccine mandates, nor is it about abortion. These are discussions for another day. Rather, it’s about being mindful of the legal principles and structures that are the very lifeblood of our civil freedoms. It’s about preserving the integrity of the idea of religious freedom. And it’s about keeping our gaze a few miles down the track and understanding that attempts to engineer short-term outcomes can have long-term consequences.
1 Robert K. Merton, “The Unanticipated Consequences of Purposive Social Action,” American Sociological Review 1, no. 6 (December 1936): 894-904.
2 Whole Woman’s Health v. Jackson, 594 U.S.___ (2021) (Sotomayor, J., dissenting).
3 Northern Securities Co. v. United States, 193 U.S. 197 (1904), pp. 400, 401.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.