Americans Are Suing to Protect Their Freedom From Infection
Once, people were asking to be exempted from measures that kept the public safe. Now the reverse is happening.By Wendy E. ParmetAs the pandemic stretches on, a new era of COVID-19 litigation has begun. At first, America’s pandemic litigation followed a familiar script: Religious worshippers, business owners, and anti-government populists protested against public-health orders, and asked courts to either declare them exempt or scrap the orders altogether. This time, state governments are blocking public-health measures, and plaintiffs are asking courts to force their states to protect them.
The first round of COVID-19 litigation began in March 2020, as states scrambled to control the rapidly spreading coronavirus. During this period, states ordered businesses and religious institutions to close, limited gatherings, banned elective medical procedures, and in some instances, blocked interstate travel. Later, states mandated masks and stayed evictions. More recently, some have mandated vaccinations at state universities, in health-care settings, and even, as in New York, at restaurants and theaters.
Not surprisingly, opponents of these measures have gone to court, bringing more than 1,000 cases in different jurisdictions across the country. The challengers have raised almost every constitutional and statutory claim imaginable. They argued, in some cases with the support of the Trump administration, that public-health orders had limited their rights to free speech, free assembly, worship, and travel. They claimed that public-health orders had violated equal protection and due process and exceeded the executive authority of whatever official issued the order.
Initially, most courts rejected such challenges, stressing the need to defer to public authorities during a pandemic. Early on, the Supreme Court also signaled that it was in no mood to override public-health measures. In May 2020, in South Bay United Pentecostal Church v. Newsom, the Court by a 5–4 vote refused to block California’s ban on in-person worship. The majority did not issue an opinion, but in a concurring opinion, Chief Justice John Roberts explained that “our Constitution principally entrusts ‘the safety and health of the people’ to the politically accountable officials of the state.”
In the months following South Bay, most courts, with notable exceptions, continued to ...
https://www.theatlantic.com/ideas/archi ... ra/619914/