Covid19 and the power of the state during a pandemic

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On March 6, 2020, the State of Pennsylvania, where I live, declared a public health emergency in light of the Covid19 pandemic [1]. In so doing, the Governor activated broad powers to respond to the public health crisis. During a declared disaster, the Governor may suspend regulations, control the ingress and egress (entry and exit) of people, seize property, control the movements of the population and utilize the police to make arrests [2]. Such powers are expansive and designed to respond to public health crises and disasters. Many states have similarly broad powers. Of note, a large number of states adopted portions of a model law created at the Center for Law and the Public's Health at Georgetown and Johns Hopkins titled the Model State Emergency Health Powers Act, which created a framework for these comprehensive powers [3].

Part of the disaster powers typically includes controlling the movement of the population. In Pennsylvania, as in many other states, the Governor has exercised this power with the stay at home order currently in place [4]. This order has been required to limit the spread of Covid19 and prevent our hospitals and medical resources (e.g., ventilators) from being overwhelmed. The order serves a very real and necessary public health purpose and is effectively preventing increased disease and death. A study by Markel et al. in the Journal of the American Medical Association in 2007 previously showed that such nonpharmaceutical interventions like social distancing and school closures significantly decreased death rates in 1918 during the great influenza pandemic [5]. Importantly, cities that delayed enacting these social distancing interventions had significantly increased death rates compared to more proactive cities. Notably, Philadelphia was one of the cities that was slow to institute such distancing measures in 1918 and had a high mortality rate compared to other cities that acted sooner. Stopping these interventions prematurely in the midst of the current outbreak would be potentially dangerous and may cause a resurgence of the disease and increased deaths.

In recent weeks, there has been an outcry by a segment of the population complaining about the stay at home order and demanding that states open immediately. Many of these citizens argue that the stay at home order infringes their rights and is unconstitutional regardless of the public health benefit. However, quarantine orders have previously been enforced by the courts and not found to be unconstitutional. Recently, the Wisconsin Supreme Court struck down a stay at home order issued by the state's health secretary [6]. However, the case hinged on whether the stay at home order issued was an “order” or a “rule.” It was determined to be a rule and thus subject to procedural requirements that were not followed, rendering it unenforceable. This case did not state that quarantine orders were unconstitutional [6]. The case was determined solely based on legal technicalities.

Other courts have confirmed the broad public health powers of states to track, test, quarantine and treat individuals [[7], [8], [9], [10], [11]]. The U.S. Supreme Court previously ruled that states have broad public health powers that may limit personal liberties [11]. In Jacobson v. Massachusetts, the Supreme Court found that the plaintiff could not refuse the state's policy regarding vaccination during a public health emergency [11]. The Court said that in “every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great danger, be subjected to such restraints, to be enforced by reasonable regulations, as the safety of the general public may demand.” [11] In ruling, the Supreme Court affirmed the broad powers of the state during a health crisis and clarified that personal liberties could appropriately be limited to promote the safety of the general public.

Recently, on May 29, 2020, the U.S. Supreme Court affirmed the power of the state during a public health emergency and its ability to restrict activity for the public good. In South Bay Pentecostal Church v. Gavin Newsom, a church in California claimed that the current public health law limiting church attendance to 25% of building capacity violated the Free Exercise Clause of the First Amendment and infringed on their freedom of religious practice. In ruling against the church, the U.S. Supreme Court cited Jacobson v. Massachusetts and noted that the state had broad discretion during a public health emergency fraught with uncertainty. Further, it noted that the Free Exercise of Clause was not violated as the church was still able to practice their faith with the social distancing restrictions [12].

Why is this? Why can personal freedom be limited in a crisis? It's the same reason you cannot yell “fire” in a crowded theatre. Your rights are limited by the damage they can cause. It may be your right to engage in free speech, but such a right is not absolute. That right is limited by the foreseeable damage you can cause. We all have the right to be free and to travel. However, if exercising this freedom would result in increased disease, death and suffering in the community during a public health crisis, the state has the right to restrain that freedom to protect the public.

References

3. The model state emergency health power's act. https://www.aapsonline.org/legis/msehpa2.pdf Available at.

4. Orders of the governor of the commonwealth of Pennsylvania for individuals to stay at home. https://www.governor.pa.gov/wp-content/uploads/2020/04/20200401-GOV-Statewide-Stay-at-Home-Order.pdf Available at.

5. Markel H., Lipman H.B., Navarro A., et al. Nonpharmaceutical interventions implemented by US cities during the 1918-19 influenza pandemic. JAMA. 2007; 298 (6):644–654. [PubMed] [Google Scholar]

6. Wisconsin Legislature v Andrea Palm et al. http://fox11digital.com/news/PDFs/WI%20Supreme%20Court%20decision.pdf Available at. (last visited May 14, 2020)

12. South Bay Pentecostal Church et al. v Gavin Newsom, 590 U.S. __ (2020) Available at file:///C:/Users/Darren%20P.%20Mareiniss/Desktop/South%20Bay%20United%20Pentecostal%20v%20Newsom%20.pdf (last visited May 30, 2020).