By Mark A. Hall and David M. Studdert
Every public health crisis poses unique legal and ethical challenges, but none more so in modern times than the novel coronavirus pandemic. Urgent responses to the pandemic have halted movement and work and dramatically changed daily routines for most of our population in ways entirely unprecedented. As we wrote recently, this sweeping response challenges a host of civil liberties that state and federal statutes and constitutions protect. It should come as no surprise, then, that we are starting to hear widespread grumbling. There are even reports of some initial “protest” lawsuits. But even without overt legal challenges, public health officials are well attuned to the need to respect civil liberties in setting appropriate policies. And, if those officials are not well-attuned, politicians, who are concerned about widespread economic fallout, will forcefully remind them.
It follows that there is a pressing need for a set of principles to guide not just the imposing of COVID-type restrictions, but also relaxing or lifting them.
When the risk of spread first became serious, the need for these restrictions became obvious, and thus restrictions have been fairly broadly accepted, at least initially. But, the public’s patience will last only so long. Economic pressures are building, along with a strong desire for a return to normalcy. Yet we lack any clear standards for loosening these restrictions. Should we relax when we are past the peak of infections? Or only when epidemiologists give us the “all clear” signal? Or somewhere in between, such as hospital capacity being sustainable, or the re-transmission rate falling to an encouraging level? If so, what level should that be?
Quarantine Law
The difficulty we face is that all of our major guideposts are designed for much different situations. The nature and behavior of earlier infectious diseases was such that coercive public health measures could be targeted based on individual risk—for example, whether a person might have, or have been exposed to, the disease. The numbers of such people might be large, but still it was feasible to identify, isolate, quarantine, and contact-trace them. Classic infectious diseases have more obvious symptoms or are harder to spread, and so, in modern times, community-wide limits on fundamental civil liberties have not been needed, until now.
The way that the novel coronavirus presents, spreads, infects, and affects people, however, has required blanket restrictions without regard to known exposure or potential infection. As a result, the principles of procedural due process and individual risk assessment that underlie conventional quarantine policy have little relevance to COVID’s restrictions. We are all considered “at risk.”
Curfew Law
Due process still has some relevance to broad social policy, but mainly in the limited fashion known as “substantive” due process. The substantive principles in existing quarantine law are important, but they primarily address only individual risk. Therefore, we look instead to curfew law as a better source of guidance. We are thinking of the limited and extraordinary forms of curfew imposed during civil unrest or natural disasters, rather than any low-level ongoing curfew laws that, similar to truancy laws, apply only to juveniles. Broad curfews, like stay-at-home and social distancing orders, apply to communities across the board, regardless of individual circumstances, in order to guard against a shared public risk.
When curfew laws are challenged, courts analyze them in terms of substantive rather than procedural rights. Substantively, curfews threaten both the freedom of assembly protected by the First Amendment and what’s referred to as the “right to travel” — a substantive form of liberty interest protected by the 5th and 14th Amendments. In adjudicating these challenges, courts give broad deference to government authorities, recognizing that more exacting scrutiny could place undue demands on officials who must respond quickly to dire emergencies with only limited information.
Thus, courts almost never find that emergency curfews illegal. Instead, in upholding curfews, courts usually note simply that a serious threat to public safety or order existed. Sometimes, courts will also point to a curfew’s limited and graduated nature, such as it lasting only a brief period, or plans in place to relax or narrow it as conditions improve. But, above all, curfew law highlights the substantial leeway that courts give the government in exigent circumstances. As one appeals court put it, whether harsh restrictions are “absolutely necessary in order to prevent a serious civil disorder is clearly an important question for political debate, but not, we think, a question for judicial resolution.”
Widespread Testing
Viewing COVID restrictions, then, as much more a public policy than a legal question, the focus becomes not so much what will courts sustain or strike down, but instead what makes good sense to the public and is supported by solid science.
Space does not allow full development of various approaches, but, as we’ve noted elsewhere, there is emerging consensus among various experts and thoughtful analysts that the key to appropriately balancing civil liberties with public health protections is much more widespread testing – both to determine who has the disease, and also to determine who has recovered from it and therefore is either immune or at greatly reduced risk, at least for some period of time.
Identifying people most likely to transmit infection in the near term provides individualized risk assessment that could protect the public through more targeted restrictions. And, identifying those who have acquired immunity could free them to return to work, school, worship or other important activities.
To be sure, we still lack the materials and technology needed for widespread testing and surveillance. But advances are moving quickly. Some people would find testing itself to be an intrusion, but considering this pandemic’s magnitude, required or strongly encouraged testing could reduce or prevent the need for much greater intrusions.
Graduated unwinding and, if needed, re-imposition of restrictions inevitably entails compromises between disease control and protection of civil liberties. Approaches that, in ordinary times, would be beyond the pale, today, seem like a fair price to pay for safely and equitably resuming a semblance of normal life.
