Madison, Wisconsin / USA - April 24th, 2020: Nurses at Reopen Wisconsin Protesting against the protesters protesting safer at home order rally holding signs telling people to go home.

Safer at Home? Yes, but Not According to the Wisconsin Supreme Court

By Beatrice Brown, Jane Cooper, and Danielle Pacia

Due to the Bill of Health production schedule, this piece is being published two weeks after it was written, on May 20th, 2020. The authors would like to affirm the importance of protests against anti-Black racism in America.

Stay-at-home orders—the primary means of managing the COVID-19 pandemic in the U.S.—face increasing opposition as protestors against these public health measures clamor for a “return to normal.” In Wisconsin, pushback against stay-at-home orders culminated in the state Supreme Court’s decision on May 13 to reverse the state’s “Safer at Home” policy.

Republican leaders of the state legislature filed suit against state Department of Health Services Secretary-designee Andrea Palm and other health officials, resulting in the case Wisconsin Legislature v. Palm. In a 4-3 ruling, the Wisconsin Supreme Court held that the “Safer at Home” order was “unlawful” and “unenforceable.” 

Ian Millhiser, writing for Vox, explains that a 1982 amendment from the Wisconsin Legislature at the beginning of the AIDS epidemic gave the health department “broad power to issue statewide orders.” However, the Wisconsin Supreme Court’s decision “effectively nullifies that 1982 amendment” by constraining the lawful, “extraordinarily broad power” given to the Department of Health Services to protect citizens during public health emergencies. 

Perhaps most shocking about the ruling is the logic espoused by Justice Rebecca Bradley during oral arguments and in her concurrence. During oral arguments, she compared the stay-at-home order to Korematsu v. United States, a landmark Supreme Court decision allowing the U.S. government to detain Japanese Americans in internment camps during the second World War. Mark Joseph Stern, writing for Slate Magazine, explains that Justice Bradley defended her invocation of Korematsu in her concurrence on the grounds that it “must be cited to explain the fundamental importance of judicial resistance to popular pressures,” even though “headlines may sensationalize the invocation” to “trigger outrage.”

How, though, is racially discriminatory Japanese internment comparable to a stay-at-home order aimed at protecting the people of Wisconsin from a deadly pandemic? The answer is that it simply is not. As noted by Mark Joseph Stern, the ruling is a blatant example of hyperpartisanship in the courts. He explains that the three dissenting justices were left to “marvel,” quoting Justice Rebecca Frank Dellet who wrote, “This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history.”

Such judicial activism is unacceptable during a pandemic. Now is not the time to quarrel on partisan lines. Now, more than ever, we need solidarity as a country to prevent needless deaths. Hyperpartisanship destroys hopes of solidarity, flying in the face of legitimate public health orders that are grounded in science. 

Public health responses should be determined by data, not by politics. Without an effective treatment for COVID-19, this means that public health efforts must focus on prevention. In fact, current gold standard public health measures include social distancing, limiting contact with shared surfaces, and contact tracing.

Prevention is, by definition, proactive; when public health responses are reactive, it is often already too late, especially since viruses spread exponentially. States that have not felt the brunt of COVID-19 should not wait to become the next New York or Italy; they should learn from these examples to protect their citizens. This includes promoting early action and ensuring that known causes of COVID-19 outbreaks, such as large gatherings and shared public surfaces, are limited.

Of course, this is made impossible in Wisconsin since the new ruling allows institutions that are not able to enforce such public safety measures to re-open, such as bars. As noted by Jordyn Noenning, without guidance on social distancing and capacity, bars in Wisconsin became packed hours after the decision was announced.

Wisconsin has nearly 11,000 confirmed cases and over 400 deaths—they are certainly far from out of the woods. Lifting stay-at-home orders before it is safe to do so undoes all of the previous progress achieved by public health measures and all but ensures that a second wave will follow.

As recently-graduated bioethics students, we are disheartened by the recent Wisconsin Supreme Court decision to defy science-driven public health measures. Good bioethics necessitates sound science coupled with normative considerations. As the pandemic’s death toll increases, bioethicists can and should become involved in the public sphere to guide public health emergency responses. 

A Presidential bioethics commission would have been well poised to help assist in the COVID-19 pandemic as well, and yet, there was never a clear attempt to establish one by this administration.

Trump is joined by only one other president since 1974 not to have had a bioethics commission. These commissions have served pivotal roles in advising the president on various bioethical issues, such as stem cell research, cloning, and radiation experiments. 

Bioethics in the public domain and policy sphere is arguably more important than ever before in the midst of this pandemic. 

As our nation continues to debate the best way to navigate the pandemic, we must ensure that community values and science drive policy—not politics—so that decisions to reopen the country remain for the good of the whole country. 

 

Jane Fallis Cooper recently graduated from the Master of Bioethics program at Harvard Medical School, during which she focused on psychological evaluations for those seeking asylum in the United States. Prior to this degree, she received a BSc (honors) in biology from Queen’s University (Canada). In the fall, she will begin law school at the University of Toronto.

Danielle M. Pacia recently graduated from the Master of Bioethics program at Harvard Medical School. Before earning her MBE, she received a BA in Bioethics from the University of Alabama, Tuscaloosa. She is the program manager of the Yale Summer Institute in Bioethics, and beginning this fall, Danielle will be working as a research assistant at The Hastings Center.

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Beatrice Brown

Beatrice (Bea) Brown is a Research Assistant for the Program On Regulation, Therapeutics, and Law (PORTAL) within the Division of Pharmacoepidemiology and Pharmacoeconomics at Brigham and Women's Hospital. She received her Master of Bioethics (MBE) from Harvard Medical School in 2020 and her BA in Ethics, Politics, & Economics from Yale University in 2019. During the 2019-2020 academic year, Bea was a Petrie-Flom Student Fellow and wrote a research paper proposing a new argument for a constitutional right to physician-assisted death by redefining what it means to heal.

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