For the past week or so, those who follow the news has been treated to the experience of misinformed Tea Party wannabes protesting that the COVID 19 restrictions adopted by state and local governments are violating their constitutional rights. For those of us who have been following the courts, however, we have seen red state attorney generals winning cases against abortion providers who claim that those restrictions go too far in terms of limiting abortion.
For the most part, the restrictions at issue in these cases have been the limits placed by the various states on “elective” surgical procedures. One example of the red states winning this case came earlier this week in the Eighth Circuit (which covers much of the farm belt in the central part of this country) looking at the restrictions imposed by Arkansas. In the case, the Attorney General of Arkansas (supported by most of the red state Attorney Generals) asked for relief from the trial courts order enjoining the enforcement of this ban on non-emergency surgical abortions. While the application of the law to the case is debatable under the specific facts of the case, the Eighth Circuit was clear on the law that applies to COVID-19 orders.
The basic principle — often repeated by the courts — is that constitutional rights are not absolute. Instead, in some very narrow circumstances, the obligations of government to protect the public can overcome constitutional rights. In cases decided in the late 1800s and early 1900s when local and national epidemics were somewhat common, the United States Supreme Court held that the “liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” In particular, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” As such, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
When faced with a regulation, the courts are supposed to employ a two-part test. First, does the regulation have a real and substantial relation to the asserted health concerns? Second, if it is not related to the asserted health concerns, is the regulation a plain and palpable invasion of constitutional rights? By this standard, most of the basic rules being adopted by the states are clearly valid (and are similar to prior quarantine regulations), and the sole area for debate is whether some exceptions should be made in narrow circumstances to prevent the violation of constitutional rights.
We will only know in hindsight — if at all — whether all of the restrictions imposed during this crisis were necessary and whether they could have been relaxed sooner (or should have been kept in place longer). But what should be clear — if One America, Fox, Attorney General Barr, and President Trump would do their jobs rather than trying to encourage division — is that throughout American history governments have had the power to impose very restrictive quarantine conditions when faced with an epidemic. Keeping the astroturf protestors in the dark about the law and their history is counterproductive and actually poses a risk to health that could require prolonging the very measures that they allegedly are opposing. Now not all Republican “leaders” are engaging in this dishonest demagoguery. We do have some examples of true leadership in the Republican Party (for example, the governors of Ohio and Maryland), but too many are like Moscow Mitch and the Orange Menace with a focus on political advantage rather than serving the American people.
