This piece was written on May 13, 2020 amid a rapidly evolving situation. The post reflects the state of knowledge at the time of writing.
In France, a state of sanitary emergency was declared for a period of two months starting on March 23rd, 2020 in order to allow the authorities “to deal with the major health threat” created by SARS-Cov-2.
In many ways, this regime resembles the State of Emergency regime which currently exists in French law (Emergency Powers Law of April 3rd, 1955). However, it seems the public authorities wished to instate, at least symbolically, a different regime from the ones imposed in times of terrorism or armed conflict.
The state of sanitary emergency statute, codified in the Public Health Code, instituted a special legal regime under which those holding executive powers (Prime Minister, Minister for Health, Regional Prefects and Mayors) are exceptionally authorized to adopt regulations that can be quickly adapted to changing circumstances (through decrees, local by-laws, and individual decisions, depending on their author). It has been extended until July 10th, 2020 through a statute published on May 12th, following a Constitutional court review and after approval by both legislative chambers.
Initially providing for the strict confinement of the population, the measures adopted under these statutes have evolved since March 2020 (see for example Decree 2020-293 of March 23rd, 2020 and Decree 2020-548 of May 11th, 2020).
The first statute authorized the executive to adopt measures that may restrict an individual’s freedom of movement, freedom to conduct business, and/or the right of assembly (Title II). It also addressed a number of issues not directly related to public health: the current functioning of representative democracy (Title I postponed the second round of municipal elections), and a large collection of socioeconomic issues such as social protection and labor law issues, and the functioning of the court system (Title III).
The current statute is intended to create the framework for the authorities to progressively lift the confinement measures. It relaxes many of the limitations enacted and introduces new measures in order to control the epidemic, all the while placing more confidence in civic responsibility.
As such, it defines, on the one hand, the conditions when individuals should quarantine and, in very specific situations, justifications for the state to hold individuals on COVID-related health grounds. On the other hand, it sets up a tracking system authorizing the collection and sharing of data on persons infected with COVID-19, as well as those having come into contact with them.
With regard to these two groups of measures, the Constitutional court considered that some elements were in violation of, inter alia, the constitutional rights to an effective remedy and to privacy.
Firstly, it considered that decisions to quarantine or isolate persons for a period over 12 hours a day should be authorized by a judge. Secondly, it considered unconstitutional the inclusion of social services in the list of persons who will have access to the data collected for the contact tracing system. Finally, it should be noted that the “digital tracing” project currently being considered in order to identify persons who have come into contact with the virus using Bluetooth technology is still under review and should be discussed in Parliament at the end of May.
The measures adopted since March in order to guarantee the protection of health have impacted civil liberties and fundamental rights.
Unsurprisingly, the limitations on the movement of persons, the restrictions concerning the opening of non-essential shops, public meeting spaces, public services, and the reorganization of healthcare services and the concentration on essential medical interventions have had an even more important impact on vulnerable populations.
For instance, there has been an increase in violence against women and children due to insufficient emergency accommodation and the inadequacy of support offered to women. Concerning sexual and reproductive rights, after initial hesitations, it was decided not to extend access to abortion exceptionally from 12 to 14 weeks, but only to modify the access to abortion medication that can be prescribed and taken remotely, which is now available between weeks 7 and 9 of gestation.
With regard to migrants, homeless persons, and/or those in precarious economic situations, criticisms have been made concerning the impossibility to access social and legal services, the inadequacy and the unsuitability of provided accommodation, and difficulties in accessing food supplies.
Judicial control of the legality of these measures has, so far, been cautious. Many of the decisions delivered rapidly by various courts do not seem to have taken into account the realities of the health emergency. For instance, while levels of overpopulation in prisons are very dangerous during pandemics, the Conseil d’Etat considered that it could not take a view on the possible release of prisoners, but that it was satisfied with the health measures imposed in those settings.
In another case, the Conseil d’Etat deemed the care and treatment persons in retirement homes were receiving satisfactory, despite the high number of deaths in retirement homes. That said, the court did recently conduct a thorough analysis of the situation of asylum seekers, requiring the State to resume the processing of asylum applications, which had been de facto suspended since March. Unlike its decision of April 9th, the Conseil d’Etat came to the conclusion that there had been a serious and illegal breach of the right of asylum.
While the current health crisis in France has certainly exposed the existing weaknesses of its health system and the authorities’ capacities to halt the epidemic, as well as the negative impacts of socioeconomic inequalities on individual health, it has also pushed to the forefront the protection of health as a constitutional value.
Stéphanie Dagron is a professor of law at the University of Geneva and a member of the WHO Research Ethics Review Committee.