By Ben Lenhart
The COVID-19 pandemic is threatening many of our most cherished freedoms. We are told by the government not to travel. We are told we can’t gather for religious services. We are told we must wear masks, but we must not go to restaurants or stores. Our favorite sporting events, school activities and even graduations are cancelled. In some places, we are told we may not gather even for the most important things in life: the birth of a newborn or the passing of a loved one. At rallies protesting the lockdown, participants claim their constitutional rights are being violated and that the “illegal” government orders must be lifted. Who is right: the protestors or the government? Put another way, do the governments’ actions taking away certain rights, even if only temporarily, violate the Constitution? This article seeks to answer that question using a few real-life examples.
COVID-19 Order Blocks Church in Kansas.
As part of a COVID “stay at home” order, Kansas barred more than 10 people from attending religious services. Two churches sued, claiming violation of their religious freedoms. The First Amendment bars the federal government from (A) establishing any official state religion, or (B) restricting Americans from freely exercising their religion of choice. A Kansas trial court realized this was a hard case: yes, the churches’ constitutional rights were being curtailed, but also, yes, the COVID-19 pandemic required urgent measures to protect public health. For guidance, the Kansas court looked to the famous quarantine case of Jacobson v. Massachusetts, where a man refused a mandatory smallpox vaccination during a smallpox epidemic. Recognizing the hard balance, the Supreme Court in Jacobson acknowledged both sides of the issue: First “when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the publichealth crisis …” But second, a law purporting to protect public health, may nevertheless be invalid if it “has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In the end, the court upheld the government order requiring the vaccination.
A COVID-19 order taking away our constitutional rights may be valid if (A) that order directly advances a public health goal (such as controlling the spread of COVID-19), and (B) the same goal can’t be achieved in a narrower way that does not curtail our Constitution rights (or curtails them to a lesser degree). If (A) and (B) are not true, the court may decide to strike down the order as unconstitutional.
Applying these rules, the Kansas court sided with the churches and against the government. Noting that Kansas’ stay-at-home-order singled out places of worship for stricter measures, the court found that, while the public health goals were important, they could be achieved while still allowing the churches to hold services in a safe manner with more than 10 people. The case settled on favorable terms for the churches before it could be appealed, and so the churches largely won this fight.
COVID-19 Order Blocks Abortions in Texas.
In order to preserve medical resources during the coronavirus pandemic, a Texas order banned many non-essential medical procedures, including abortions under most circumstances. Roe v. Wade first recognized the constitutional right to abortion more than 45 years ago. Abortion providers sued, claiming the order deprived them of their constitutional rights. Much like the Kansas church case, the Texas court recognized the two competing forces: the need to protect public health during the COVID crisis versus the constitutional right to abortion. On the one hand, the court agreed that individual rights secured by the Constitution are not lost even during a severe public health crisis. There is no “emergency override” of the Constitution. On the other hand, the Texas court, said that “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.” Instead, the court fund that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” even when that means temporarily curtailing certain rights.
In the end, the lower court largely sided with the abortion providers, ordering that they be allowed to continue during the COVID crisis, but an appellate court overruled the lower court, and allowed most of the abortion ban to continue. However, before the courts could come to a final ruling, the case was resolved, and abortions in Texas were largely allowed to continue during the Covid crisis.
COVID-19 Orders Deny the Right To Travel in Many States
To protect public health, many states have ordered that people not travel unless for essential purposes. But the right to travel is one of Americans’ most cherished freedoms. A drive to the mall, or to a friend’s house, or a road trip across America—the freedom to travel “where we want and when we want” helps define America. It is also a core rights long protected by the Constitution (although its precise source is still being debated). COVID travel bans present the same “hard balance” between our safety and constitutional rights. Faced with a severe pandemic where the very movement of people can spread the disease, courts would likely approve a limited travel ban, such as one that lasted a short time and had exceptions for emergencies and essential activities. On the other hand, courts would likely strike down a travel ban that was imposed rigidly for a year or more regardless of changes in the pandemic status, and that failed to allow reasonable exceptions to the ban. Such a ban would be unconstitutional because a more limited travel ban likely could achieve the same goal—protecting public health—without such a severe denial of constitutional liberty.
The Outer Banks Travel Ban
The Outer Banks (OB) is a beloved vacation spot along the North Carolina coast. In March, it banned nonresidents from entering most of the OB but permitted residents to enter. This ban has two potential constitutional problems. First, it denies the right to travel discussed above. Second, by discriminating against non-residents, the ban may violate the so-called Dormant Commerce Clause, which generally prohibits states from favoring their own residents at the expense of out-of-staters. A huge reason why America’s economy has succeeded and grown to the largest in the world is that we have a free market among the 50 states. The constitutional framework allows commerce to flow freely across state lines. By violating this basic rule, the OB may be violating the Constitution unless it can show there is no less restrictive way to protect public health in the OB short of discriminating against non-residents.
Korematsu
The COVID-19 stay-at-home orders impose real hardships, but compare those to the hardships during World War II. After Pearl Harbor, thousands of Japanese American citizens, most of unquestioned loyalty to the United States, were sent to internment camps far from their homes based on fears that a small number would side with Japanese war effort. This was a massive deprivation of the most basic constitutional rights of American citizens. In 1944 a sharply divided court, with stinging dissents, held that the urgent Japanese threat justified this extreme measure. But history was not kind to Korematsu, and it has become one of the Court’s most heavily criticized cases.
Last year, Chief Justice Roberts said this: “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution.’”
Why was Korematsu so wrong? Both because withheld evidence showed less threat from the Japanese Americans, and because there were ways to achieve the government’s goal (such as police investigative work) that did not involve such flagrant denial our Constitution rights, the order at issue in Korematsu was unconstitutional.
Conclusion
The COVID-19 constitutional balance is hard because the things being balanced are both vitally important: stopping the spread of the coronavirus is a matter of life and death; but many lives have also been lost over the past 232 years fighting to protect the rights guaranteed to all Americans in the Constitution. The examples above shed light on whether any particular COVID-19 order is constitutional. If that order takes away constitutional rights—such as the right to travel, the right to assemble, or freedom of religion—then ask if the government can achieve the same COVID-19 health goal in some other way that does not take away those rights or involves materially less interference with those rights. If the answer is no, then the law may well be constitutional, but if the answer is yes, then the balance may tip in favor of protecting our constitutional rights and striking down the order.
[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]
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