Generating legal cohesion across US responses to COVID-19

Just seven months into the COVID-19 pandemic and America’s public health performance is progressively morbid. The U.S. accounts for about 4 percent of the global population, but over 23 percent of known SARS-CoV-2 infections and deaths. As the European Union and other countries tamped down infections this spring, the U.S. experienced an escalation of cases in 43 states and territories this summer. 

Manifold factors are to blame — insufficient testing, screening, contact tracing, ineffective planning and coordination of vital health resources; overwhelmed health care systems; Americans’ apathy and public health resistance; and rush to re-open the economy and polarizing national and state leadership. 

Legal failures are a primary cause as well. Since the 9/11 terrorist attacks, federal and state governments have substantially reformed their public health emergency laws. Yet, the country seems adrift without a cohesive legal strategy to take on COVID-19, engaging instead in inconsistent and contradictory legal responses guided more by politics than science. 

Fragmented emergency legal responses to COVID-19 reflect Americans’ mixed priorities. They clamor for public health measures but bristle over their economic and social impacts. They demand access to testing, screening, or treatment but resist wearing facemasks in public. Americans understand the need for social distancing, yet argue for rights to assemble for religious, political, or other purposes. Reconciling these competing interests generates inter-jurisdictional legal inconsistencies, especially concerning social distancing and travel limitations.

At the inception of the pandemic in the U.S. in late February, most governors issued varied stay-in-place orders (SIPOs), which greatly helped reduce rates of infections and hospitalizations. Between 250,000 and 370,000 COVID-related deaths were averted through SIPO implementation in 42 states and D.C. 

Yet, these interventions also carried heavy social and economic tolls, sparking extensive litigation. President Trump repeatedly supported SIPO protests and pushed states to re-open. As state-wide mandates were relaxed or negated, non-essential businesses re-opened, people re-engaged, and COVID-19 cases spread rapidly. States, including Arizona, California, Florida, and Texas, have rescinded re-opening efforts.

Disparate travel limits or quarantine measures from Alaska to Vermont divide the nation. In March, Rhode Island temporarily attempted to close its border to New Yorkers as COVID-19 ravaged New York City. In June, Connecticut, New Jersey, and New York imposed a two-week quarantine on travelers from hotspot states. Lacking uniformity and proof of efficacy in limiting spread, state-based travel, and quarantine measures exceed constitutional boundaries.

Uniform national responses cannot prevail as long as emergency public health laws reflect political preferences over scientific evidence. Overcoming political interferences with evidence-based responses entails public health law and policy approaches that rise above political gesturing and economic pressures consistent with three unifying themes:

Constitutional foundations

In an unprecedented crisis, when extended emergency declarations alter the legal landscape, constitutional interpretations are precarious. Arguments against public health interventions purport false premises (e.g., right to work claims) or misconceptions of absolute interests (e.g., rights to bear arms, assemble, or free exercise). While most courts appropriately balance individual and communal interests in emergencies, some suggest that constitutional principles be set aside. In reality, no health emergency justifies circumventing the rule of law. The Constitution permits strong, temporary interventions that are evidence-based and proportionate to curbing COVID-19 infections and deaths. 

Best practices grounded in science and safety

Scientific and epidemiologic findings underlying the pandemic are continually evolving. Current evidence supports preventive actions, including social distancing, face masks, personal hygiene, and widespread testing/contact tracing. Evidence alone, however, is insufficient. Laws must facilitate consistent policies and risk avoidance behaviors. In the U.S. federalist system, divergences among state-based interventions are inevitable. Yet, as seen overseas, inter-jurisdictional assimilation is achievable through a governmental commitment to effective public health interventions allowing for safe economic and social activities.

Fairness and equity in meeting societal needs

The pandemic has highlighted and exacerbated extensive inequities. Access to public health and medical services, and corresponding negative outcomes, are stratified based on socioeconomic status, race/ethnicity, disability, and other dimensions. Multiple states’ crisis standards of care plans, for example, have been criticized for disfavoring persons with disabilities. As inequities surface, so must legal solutions to achieve a fairer allocation of health and social services.

Our approach prioritizes the government’s duty to protect public health while sustaining safe economic activities and promoting social values. COVID-19 policies are understandably politically polarized, given economic threats. Americans’ livelihoods are clearly at stake. Yet while temporary setbacks and economic losses may be remedied, lost lives can never be reclaimed.

James G. Hodge Jr. is the Kiewit Foundation professor at Arizona State University. Lawrence O. Gostin is a university professor at Georgetown University Law Center. Hanna N. Reinke is a Senior Legal Researcher at Arizona State University.