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.” Continue Reading...