Field with sky and clouds.

COVID-19 in Rural America and the Indian Nations: Refocusing Development to Support At-Risk Communities

By Chris Zheng, J.D.

For many, the COVID-19 pandemic is likely to conjure scenes of once-bustling urban centers grinding to a halt. However, for the one in five Americans that live in rural communities, the reality of the pandemic has been markedly different from that of its metropolitan neighbors. The combination of insufficient resources and a particularly vulnerable population has resulted in disproportionate and devastating effects on remote communities.

COVID-19 has also exacerbated gaps in access to care for the 54 % of American Indian and Alaska Native people who live in rural towns or reservations. As such, there have been many questions as to what legal measures native groups can take to protect their communities. This piece will first address the unique public health challenges facing rural and native communities during the COVID-19 pandemic. Then, it will conclude by proposing group-specific solutions towards mitigating further harm.

Rural Risk Factors

While initial research into community transmission of the Coronavirus focused on dense population centers, it is clear that early-spared rural communities are actually more susceptible to infection than their urban counterparts. In fact, a study in April found that COVID-19 spread 57% faster in rural areas than in metropolitan areas, and another study in May designated 33% of rural counties as highly susceptible to COVID-19.

Public health experts point to several factors that cause such vulnerability. For one, rural populations often have higher rates of cigarette smoking, obesity, disability, high blood pressure, and pre-existing comorbidities, all of which increase the risk of infection and death from COVID-19. Many of these patients are also uninsured and have limited access to broadband internet, restricting tech-driven solutions. Rural communities at-large lack the capital necessary to fund pandemic recovery, resulting in inadequate access to physicians, health infrastructure, and mental health services. That third factor is especially worrisome since rural communities are already subject to increased risk for depression and suicide, now made worse by the need to social distance and isolate.

Increased attention must also be given to the demographic discrepancies in COVID-19’s effects on rural areas. The data is clear that persons of color are disproportionately affected by COVID-19, largely due to systemic discrimination in healthcare access, a reluctance to trust healthcare systems, housing instability, and education and income gaps. The risk for communities of color is substantial — most of America’s poorest areas, known as persistent poverty counties, are located in rural areas, and 60% of people who live in those counties are persons of color. This includes a sizable Native American population, which is 3.5 times more likely to be infected by Coronavirus than non-Hispanic white persons. Tragically, increased risk has translated into dramatic quantitative impacts — the CDC reports that, compared to death rates of White Americans from COVID-19, Black or African American persons have died at a rate 2.1 times higher, Hispanic or Latino persons have died at a rate 1.1 times higher, and American Indian or Alaska Native persons have died at a rate 1.4 times higher.

Complications to Care in Rural America

In dealing with the many problems that hinder effective care in rural communities, four challenges are of particular importance to policymakers’ immediate ability to fight the virus. The first is combatting the Digital Divide, a term that refers to the lack of internet access and technological hardware in many rural areas. In 2019, 37% of rural Americans did not have broadband internet connection. On tribal land, the FCC reports that above 40% of residents lack access. Not only is high-speed internet crucial to economic opportunity, education, and civic engagement, but it is also one of the most promising methods of providing safe medical care to vulnerable residents who may not be capable of visiting a doctor’s office. Thus, healthcare providers’ turn towards telemedicine is promising, but it risks exacerbating existing health disparities in rural communities.

The second challenge concerns the capacity for medical facilities to handle the influx of COVID-19 patients. Since 2005, more than 170 rural hospitals have closed, including 18 just last year. Rural hospitals’ ability to serve patients has long depended on income from emergency room visits, doctor’s appointments, and elective surgeries — all of which have declined in the wake of the pandemic. Without those crucial funding measures, hospitals may be forced to cut staff or shut down, profoundly threatening community care. Prior to the pandemic, a study found that after a hospital closure, death rates in surrounding rural communities increased by almost 6%.

The third challenge similarly involves rural hospitals’ need for dependable financial support. In April, the Centers for Medicare and Medicaid Services (CMS), pursuant to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), allowed applications for Medicaid advances to hospitals, subject to a 120-day repayment period. As 65% of rural hospitals operated at a deficit before the pandemic, many jumped at this critical lifeline. However, from the passage of the CARES Act onward, CMS failed to update hospitals on whether or not it would adjust the repayment deadline. As a result, hospitals found it difficult to depend on federal aid for fear of needing to repay the loans in the midst of the pandemic. This uncertainty was alleviated only on October 1st as part of the government’s continuing resolution, which extended the 120 day repayment period to 29 months to pay in full. However, as many rural hospitals have long been operating in the red and their primary channels of funding have been depleted by COVID-19, the ability for hospitals to pay back these loans, even on an extended schedule, remains uncertain.

Finally, the fourth challenge is an absence of financial institutions in rural areas, which hinders both short-term and long-term recovery efforts. Under the CARES Act, the Small Business Administration (SBA) began offering Paycheck Protection Program (PPP) loans and Economic Injury Disaster Loans (EIDL). Upon implementation, however, rural small business owners found that personal relationships with a banker were necessary to access PPP funds. This was an insurmountable obstacle for many remote communities who had not seen a bank branch in over a decade. Additionally, the SBA relied on online application systems for loan applications, which resulted in rural users on poor internet connections getting kicked off the server. Thus, for federal funding to successfully reach rural communities, additional investment is necessary to establish banking infrastructure necessary to access vital funds.

COVID’s Reach to Native Reservations

In addition to the aforementioned problems, native populations face additional unique social, economic, and legal problems. For one, many Native Americans don’t live in nuclear families, but rather in large family structures and integrated communities that can foster the spread of COVID-19. On the economic side, several tribes over the years have come to rely heavily on tourism and gaming revenue to raise funds for vital public services. However, due to COVID-19’s interruption to travel and recreation, tribal funds are running low when they are needed most.

The complicated relationship between tribes and the US government has also created issues with inconsistent information and policy implementation. Federal tracking of COVID-19 cases largely omits race and ethnicity information, making it difficult to determine the exact rate of coronavirus cases among the indigenous population. Furthermore, tribal health centers that collect data from reservations are not required to share information with the US federal government. In July, less than half of tribal health centers provided case information to the Indian Health Service. Inconsistencies in data may make it more difficult for agency determinations on which communities are most in need.

Additionally, though tribes are sovereign entities, the reach of their jurisdictions is limited. For instance, implementation of health directives can often be challenged by non-Indian landowners on reservations, and tribal directives cannot be enforced on border communities which may threaten reservation residents. For instance, members of the Navajo Nation are often forced to shop for groceries in neighboring communities due to an inadequate number of grocery retailers on the reservation, increasing exposure risk. These jurisdictional concerns require tribes to continuously justify the legality of their public health orders, which in turn may slow the execution of pandemic responses. For instance, when the Cheyenne River Sioux Tribe instituted tribal health and safety checkpoints on federal and state highways crossing their reservation, South Dakota filed suit to enjoin the action as an impermissible disruption of essential travel. The U.S. District Court for the District of South Dakota later ruled in favor of the tribe, holding that, following precedent established in Rosebud Sioux Tribe v. South Dakota, the State does not have jurisdiction over highways on reservation land. Additionally, the court upheld the Sioux’s right to exclude any non-Indians from reservation land established in the 1868 Fort Laramie Treaty. As tribes continue to face legal challenges to their public health protocols, one might sympathize with the response of Sioux Tribal Chairman Harold Frazier to South Dakota’s challenge: “We will not apologize for being an island of safety in a sea of uncertainty and death.”

Prospective Solutions: Refocusing Rural Development

To address the pain points highlighted above, the following possible solutions focus on economic recovery, community-based medical development, and technological investment. To support economies in crisis, local leaders say that additional funding streams targeting rural healthcare infrastructure, struggling waste and water systems, and minority-owned businesses are key. One method of doing so is to increase grants through the Community Development Financial Institutions Fund (CDFI). In response to banking deficiencies that inhibited PPP distribution, Congress could amend the Community Reinvestment Act to create incentives for the banking industry to invest alongside rural communities. Strategic financing can protect these areas from bank divestment and ensure economic support both during the pandemic and after. Additionally, Congress should continue to provide relief through direct payments to households as part of an ongoing program throughout the pandemic. Reports have shown that the $1,200 checks distributed under the CARES Act led to increased revenue for small businesses, especially in Southern rural communities.

To address deficient hospital access, legislators need to protect rural hospitals that are still operating. In the coming years, state and local governments will need an estimated $915 billion to cover shortfalls. Thus, at the very least, Congress should create more grant options with longer time horizons accounting for the pandemic. Even further, the American Hospital Association recommends Medicaid loan forgiveness and extending the current delay on cuts to the Medicaid Disproportionate Share Hospital (DSH) Program through FY2021. This would eliminate the uncertainty that prevents hospitals from taking full advantage of grant funds, translating into larger capacity for patient care.

Other possible solutions to increase access to medical care include expanding Collaborative Practice Agreements (CPAs) which create relationships between pharmacists and physicians to expand the services which pharmacists may administer. By doing so, pharmacists can be integrated into ambulatory care clinics and create on-the-ground planning for future vaccine distribution. Where rural communities are currently facing physician shortages, broadening pharmacists’ practice could help to alleviate demand. Another possible avenue is expanding authorities under the Right to Try Act for rural hospitals to allow for the compassionate or off-label use of drugs, thus circumventing Random Clinical Trials (RCT). The rationale is that, while urban hospitals are able to conduct clinical trials that provide seriously ill patients with the opportunity to use experimental drugs, rural hospitals do not have the funding or capabilities to do RCTs, forcing their desperate patients to wait through a long and arduous drug approval process before they can get treated.

Finally, rural communities need support in bridging the Digital Divide. More work needs to be done towards expanding high-speed Internet access, possibly by making internet access a utility. In the shorter term, federal, state, and local budgets can be directed towards fixing the hardware gap by funding free computer programs, home routers, antennas, and broadband towers. Some communities have seen success by installing Wi-Fi hotspots on busses and parking them outside rural communities. Hospitals pivoting towards telemedicine can also ensure care for all their patients by creating free cellphone programs for those in need and establishing care locations where patients can drive and park to complete telemedicine appointments on stable high-speed internet.

Responses and Solutions specific to Native Communities

Indigenous Nations have been largely successful in using their sovereign authority to establish public health orders and should continue to use their judgement to do so, supplemented by use of their legal right to exclude. For instance, the Navajo issued weekly curfew hours from 8:00PM MDT-5:00AM MDT and a 57-hour weekend shelter-in-place lockdown for the first two weekends of October. The Rosebud Sioux in May announced a plan to create the largest Tribally-owned bison herd and processing facility in the country to increase tribal food independence and alleviate shortages caused by COVID-19. Finally, the Mille Lacs Band of Ojibwe used its rights under the Indian Gaming Regulatory Act to close its casinos for 77 days. These examples represent the vast range of possibilities for tribes to use their legal authority established by a patchwork of federal law and treaties to respond to the pandemic.

Within that legal framework, a prescriptive solution to increase efficacy of future public emergency response is for federal, local, and tribal governments to create Mutual Aid Agreements (MAA) which create formal arrangements on how governments will reimburse aid, assign liability, license emergency responders, accept insurance policies, share data, coordinate public messaging, and resolve disputes. For instance, in Washington, seven tribes and three local health departments created an MAA to assist and share resources during a public emergency. The formation of these agreements establishes pandemic plans which can be quickly executed for the safety of tribal residents.

Finally, the federal government needs to provide substantially more support in economic aid to fulfill its trust and treaty responsibility to tribes. Federal resources can be directed towards establishing or bolstering clean water and sanitation services which are critical to fighting the virus. Additionally, the Department of Health and Human Services should increase the current $80 million fund for tribal COVID-19 response while extending Imminent Threat Funding established by the CARES Act. However, increasing funding alone is not a panacea; more must be done to ensure access to those funds. As of June of this year, Congress had obligated only $614 million of the $1.1 billion promised to the Indian Health Service through the CARES Act, due to complicated requirements for bilateral amendment processes which drastically slowed down funds distribution. Thus, the federal government should amend the lengthy bilateral amendment process and streamline competitive grant applications to immediately free up allocated funds to tribes in need.

A Stronger Rural America

Rural communities and Indigenous Nations still face an uphill battle as COVID-19 cases continue to rise. However, with strategic investment and creative programming, the resiliency of rural communities will continue to build, and even the most remote residents will be safer for it.


Thank you to Professor Robert Anderson for his generous guidance on tribes’ COVID-19 responses.


This post was originally published on the COVID-19 and the Law blog.

Chris Zheng graduated from Harvard Law School in May 2021.

a pill in place of a model globe

Preparing for Antimicrobial Resistance: Vision and Social Science Mission of the INAMRSS Network

By Timo Minssen, Kevin Outterson, Susan Rogers Van Katwyk, Pedro Henrique D. Batista, Clare Chandler, Francesco Ciabuschi, Stephan Harbarth, Aaron S. Kesselheim, Ramanan Laxminarayan, Kathleen Liddell, Michael T. Osterholm, Lance Price, Steven J. Hoffman

NB: The below contribution is an extended version of our editorial that was recently published in the Bulletin of the Word Health Organization.

The COVID-19 pandemic has raised awareness of the urgent need to improve the design of health systems, as well as the practical implementation of new strategies and technical solutions to better prepare for future pandemics. These preparations must also consider harms secondary to the pandemic, including the resulting effects on antimicrobial resistance (AMR).

While drug-resistant infections pose a well-known and severe threat to human and animal health, the COVID-19 pandemic is compounding this already problematic situation.

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Bill of Health - young mother with her baby working on a computer, caregiver, work from home

Telework for Caregivers: A Gap in Employment and Disability Law

The pandemic has exposed a gap in our employment and disability laws—a lack of care for caregivers. The workforce is filled with employees who take on roles as caregivers at home, such as parents looking after children with cancer, husbands or wives helping their spouse after a surgery, and adult children watching parents with dementia. These caregivers may want or need to work remotely while performing their caregiving duties, but they are not entitled to this accommodation under federal law. As a result of the pandemic, the class of caregivers has expanded—countless workers need to work from home to protect a loved one who is immunocompromised or who has an underlying medical condition that puts them at higher risk of severe illness from COVID-19. The pandemic has also made clear that telework is feasible—nearly half of employees currently working from home want to continue working remotely post-pandemic, and some employers have even announced that they plan to allow telework permanently for many employees. As workplaces reopen, employees with vulnerable loved ones may look for a legal entitlement to telework, to little avail. The moment is ripe for legislation—not just for those who need to stay home to avoid exposing a vulnerable loved one to the virus, but for all caregivers.

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Centers for Disease Control and Prevention. Georgia, Atlanta USA March 6, 2020.

The Politics of CDC Public Health Guidance During COVID-19

A version of this post first ran in Ms. Magazine on October 28, 2020. It has been adapted slightly for Bill of Health. 

By Aziza Ahmed

In recent months, public health guidance from the U.S. Centers for Disease Control and Prevention (CDC) has become a site of political reckoning.

The agency has taken an enormous amount of heat from a range of institutions, including the executive and the public, during the COVID-19 pandemic. The former has sought to intervene in public health guidance to ensure that the CDC presents the President and administration’s response to COVID-19 in a positive light. The latter consists of opposed factions that demand more rigorous guidance, or, its opposite, less stringent advice.

Importantly, these tensions have revealed how communities experience the pandemic differently. CDC guidance has produced divergent consequences, largely depending on demographics. These differences have been particularly pronounced along racial lines.

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Grocery store.

COVID-19 Highlights the Vital Connection Between Food and Health

By Browne C. Lewis

Together, food insecurity and COVID-19 have proven to be a deadly combination for Black and Brown people.

Data published by the Centers for Disease Control and Prevention indicates that COVID-19 hospitalization rates among Black and Latino populations have been approximately 4.7 times the rate of their white peers. The CDC suggests that a key driver of these disparities are inequities in the social determinants of health.

Healthy People 2020 defines social determinants of health as “conditions in the environments in which people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks.” The lack of access to good quality food is one of the main social determinants of health. People who eat unhealthy food are more likely to have diet-related medical conditions, like hypertension and diabetes, that make them more susceptible to developing severe or fatal COVID-19.

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Bill of Health - White sign at Church reading "all church activities cancelled," covid-19, lawsuits

Stay-at-Home Orders and Religious Freedom: How Courts Balance the Free Exercise Clause and State Emergency Powers

In the wake of the initial impact of COVID-19, state governments rushed to respond to breakouts. The resulting executive orders led to widespread shutdowns that attempted to balance the reduction of contact between people and the institutions needed to sustain the population. While at first many accepted the necessary shutdowns, it didn’t take long for businesses and institutions deemed “non-essential” to begin to challenge their states’ stay-at-home orders. Chief among initial challengers were churches and religious organizations arguing that these restrictions were burdening their congregants’ First Amendment right to exercise their religion.

The battle over stay-at-home orders, for religious organizations, has been over the power of the government to restrict religious gatherings. Regardless of the content of the ordinance, religious organizations all over the United States have challenged restrictions on their ability to meet. One church in Kentucky, for example, fought against a city restriction against drive-in service meetings; a group of Jewish overnight camps have fought against city restrictions against overnight camps, claiming the order has disparate impact against Jewish overnight camps; still other churches have gone so far as to argue that any caps on religious gatherings are unconstitutional to the extent that they differ from restrictions on grocery stores and other essential businesses. The arguments and challenged orders have differed from state to state, and courts have disagreed on what activities are comparable to that of religious gatherings. Nevertheless, one consistent argument emerges from these challenges, and despite two 5-4 Supreme Court rulings on temporary injunctions (which may well change if Judge Barrett is confirmed to the Court), seem to split on how the Free Exercise Clause affects restrictions on religious gatherings.

In evaluating challenges to stay-at-home orders, this blog post will focus primarily on how federal district courts, circuit courts, and the Supreme Court, have ruled on preliminary and temporary injunctions.

The most consistent claim put forth by religious organizations is that restrictions on religious gatherings violate the Free Exercise Clause of the First Amendment, incorporated to the states through the Fourteenth Amendment. More specifically, these religious organizations claim that the restrictions placed on mass gatherings are unconstitutional as applied to religious gatherings because they are not neutral or generally applicable. They argue that the restriction cannot be neutral because it excludes similar activities/businesses, including grocery stores and other essential businesses. For example, in Antietam Battlefield KOA v. Hogan, Civil Action No. CCB-20-1130, 2020 U.S. Dist. LEXIS 88883 (D. Md. May 20, 2020), plaintiffs argued that the executive orders issued by Maryland Governor Hogan restricting religious gatherings were unconstitutional because they discriminated against religious gatherings but not against large gatherings in stores such as Lowe’s or Walmart. Similarly, in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), the plaintiffs there claimed that Kentucky Governor Beshear’s executive order discriminated against religious organizations by ordering all mass gatherings to shut down, but making exceptions for: “laundromats, accounting services, law firms, hardware stores, airlines, mining operations, funeral homes, landscaping businesses, and grocery stores.” All challenges to state restrictions on religious gatherings have contained identical arguments.

When analyzing these challenges, courts first look at whether the order is neutral and generally applicable. In Employment Div. v. Smith, 494 U.S. 879 (1990) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court has held that Free Exercise Clause does not require the government “to exempt religious practices from valid and neutral laws of general applicability.” A law is considered neutral if it “proscribes conduct without regard to whether that conduct is religiously motivated or not.” See Antietam Battlefield KOA, 2020 U.S. Dist. LEXIS 88883, at *19-20. If a law is not neutral and generally applicable, then courts apply strict scrutiny to see whether it can be justified by a compelling interest and is narrowly tailored to advance that interest. Roberts, 958 F.3d at 413 (quoting Lukumi, 508 U.S. at 553).

Circuit Splits

As Easter approached, several religious organizations across the country filed challenges and requests for emergency injunctions seeking to enjoin orders that restricted religious gatherings. By the end of the month, a circuit split had emerged on how to handle the religious objections to stay-at-home orders. On May 9th, in Roberts v. Neace, the Sixth Circuit granted an injunction enjoining the governor of Kentucky from enforcing orders prohibiting in-person services against the Maryville Baptist Church. The order at issue prohibited any in-person meetings but made several exceptions for “life-sustaining services.” The court found that the order had too many exceptions, making it neither neutral nor generally applicable. The court also disagreed with the complete prohibition of in-person meetings, stating that “[i]f the problem is numbers, and risks that grow with greater numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time.”

On May 16th, the Seventh Circuit rejected a motion for injunction pending appeal seeking to enjoin enforcement of an Illinois order limiting in-person gatherings to ten persons. In Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 U.S. App. LEXIS 19049 (7th Cir. May 16, 2020), the court pointed out that the order treated religious gatherings the same as similarly situated activities such as “concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods.”

On May 22nd, in First Pentecostal Church of Holly Springs v. City of Holly Springs, 959 F.3d 669 (5th Cir. 2020), the Fifth Circuit approved an injunction enjoining the city of Holly Springs from enforcing the governor’s executive orders. The court did not discuss why they were granting the injunction but stated that they did so with the understanding that the church would “satisf[y] the requirements entitling similarly situated businesses and operations to reopen.” On the same day, the Ninth Circuit rejected a similar motion in South Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020). In a short opinion, the court found that the order did not single out religious activities and therefore did not violate the First Amendment.


Supreme Court Decisions

The Supreme Court has ruled on two applications for injunctive relief sought by churches to enjoin state restrictions on religious mass gatherings due to the COVID-19 pandemic. In the first application, South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), an appeal from the Ninth Circuit case discussed above, plaintiffs argued that California’s 100-person capacity on houses of worship violated the Free Exercise Clause because it capped religious gatherings but not similarly situated activities, such as retail. The Court rejected this argument by a 5-4 vote. Chief Justice Roberts, concurring in the denial of the application, found that California’s guidelines placed “similar or more severe restrictions … to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Justice Roberts went on to note that decisions regarding reopening are “dynamic and fact-intensive matter subject to reasonable disagreement,” and that officials’ broad latitude during crises such as the current pandemic “should not be subject to second-guessing by an unelected federal judiciary which lacks the background, competence, and expertise to assess public health.”

The Court heard another case from the Ninth Circuit concerning a similar restriction later in the summer. In Calvary Chapel Dayton Valley v. Sisolak, 2020 U.S. App. LEXIS 108804 (July 24, 2020), the Court rejected another application for injunctive relief enjoining Nevada’s restriction on religious gathering. The Supreme Court issued a short, one sentence declaration, with no concurrence explaining how it reached its decision. This lack of explanation is important to note, as the restrictions at issue in Calvary Chapel were quite distinct from the one in South Bay. First, Calvary Chapel’s restriction on houses of worship limited attendance to 50-persons in the entire building as opposed to the 100-person cap in South Bay. Furthermore, while South Bay’s order restricted what the Court saw as “similarly situated” mass gatherings, the Calvary Chapel order permitted two of those gatherings to have more than 50 people in the building. Despite those distinctions, Chief Justice Roberts was not moved to decide differently, nor did he feel the need to clarify why this more stringent and seemingly arbitrary restriction was nevertheless permissible.

While these rejections are not binding on the lower courts, see Harvest Rock Church, Inc. v. Newsom, No. 20-55907, 2020 U.S. App. LEXIS 31226, at *5 (9th Cir. Oct. 1, 2020), they provide guidance on how circuit courts and district courts should be analyzing these types of requests. The language in the Chief Justice’s concurring opinion and the majority’s silence on the differences between the California and      the Nevada order seems to imply that the Court sees the executive      as having very broad latitude to enact reopening plans. While many courts have adopted the Supreme Court’s leniency to restrictions, it remains unclear to what extent orders can differentiate between religious gatherings and similarly situated activities.

Surveying the current case law, it is clear that federal courts have adopted the Supreme Court’s lenient deference to restrictions. Although not binding, Chief Justice Roberts’ concurrence in South Bay seems to have persuaded most courts to leave in place orders that treat religious gatherings similarly to like activities. Orders that limit the attendance of mass gatherings (even to ten people) and treat religious gatherings like similarly situated activities will typically be upheld. The lack of explanation in Calvary Chapel, however, leaves some uncertainty as to: 1) which activities are similarly situated to religious gatherings (the dissents in both South Bay and Calvary Chapel expand the list of what they find to be similar activities); 2) to what extent states can treat religious gatherings differently; and 3) when, if ever, should religious freedom defeat the government’s power to impose restrictions during a public health emergency.

The order at issue in Calvary Chapel treated religious gatherings differently from movie theaters and gyms, yet the injunction was still denied (without explanation). At the same time, Roberts v. Neace continues to be controlling in the Sixth Circuit, empowering courts in the circuit to continue striking down executive orders when they fall short of the standard in Roberts. Since the Supreme Court’s decision in South Bay, one district court in Kentucky has done just that. See Ramsek v. Beshear, No. 3:20-cv-00036-GFVT, 2020 U.S. Dist. LEXIS 110668, at *34 (E.D. Ky. June 24, 2020) (enjoining the Kentucky Governor’s blanket-ban on mass gatherings). It remains to be seen how the remaining uncertainty will play out in other circuits.

Beshoy Shokarilla graduated from Harvard Law School in May 2022.

This post was originally published on the COVID-19 and the Law blog

Washington, USA- January13, 2020: FDA Sign outside their headquarters in Washington. The Food and Drug Administration (FDA or USFDA) is a federal agency of the USA.

COVID-19 and the FDA Emergency Use Authorization Power

By Anne Kapnick

The Food and Drug Administration (FDA) is responsible for protecting public health by regulating the production, distribution, and consumption of food, cosmetics and drugs.[1] In the healthcare arena (the focus of this post), the FDA strives to ensure the safety, efficacy, and security of drugs, biological products, and medical devices.[2] The FDA also ensures that the “public get[s] the accurate, science-based information they need to use medical products and foods to maintain and improve their health.”[3] This blog post provides an overview of the FDA’s emergency authorization powers, analyzes the extent of their usage in the COVID-19 pandemic, and concludes by flagging potential concerns regarding the FDA’s management of this vast power.

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Janitor mopping floor in hallway office building or walkway after school and classroom silhouette work job with sun light background.

Overworked, Overlooked, and Unprotected: Domestic Workers and COVID-19

By Mariah A. Lindsay*

The COVID-19 pandemic has disproportionately affected communities already facing multiple oppressions, including women, people of color, people living with low incomes, and immigrants.

This post focuses on the impacts of the pandemic on a group that encompasses many of these identities: domestic workers, such as home health care workers, house cleaners, and child care workers.

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a crowd of people shuffling through a sidewalk

COVID-19 Immunity as Passport to Work Will Increase Economic Inequality

By Ifeoma Ajunwa

As scientists develop increasingly accurate tests for COVID-19 immunity, we must be on guard as to potential inequities arising from their use, particularly with respect to their potential application as a prerequisite for returning to the workplace.

A focus on immunity as a yardstick for return to work will only serve to widen the gulf of economic inequality, especially in countries like the U.S., which has severe racial health care disparities and uneven access to effective healthcare. This focus could also serve to diminish societal support for further understanding and curtailing the disease.

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Syringe and money.

Why the Government Shouldn’t Pay People to Get Vaccinated Against COVID-19

By Ana Santos Rutschman

As several pharmaceutical companies approach the U.S. Food and Drug Administration (FDA) seeking authorization to bring COVID-19 vaccines to market, concerns about vaccine mistrust cloud the prospects of imminent vaccination efforts across the globe. These concerns have prompted some commentators to suggest that governments may nudge vaccine uptake by paying people to get vaccinated against COVID-19.

This post argues that, even if potentially viable, this idea is undesirable against the backdrop of a pandemic marked by the intertwined phenomena of health misinformation and mistrust in public health authorities. Even beyond the context of COVID-19, paying for vaccination is dubious public health policy likely to backfire in terms of (re)building public trust in vaccines.

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