Will Civil Rights, Too, Fall to Coronavirus?

CHICAGO (AP) — The orders seem prudent in the bid to thwart the spread of the novel coronavirus: Don’t go out, don’t gather with others and keep your stores closed. But growing segments of the U.S. population say state and federal governments are trampling on freedom in the name of protecting public health.

A churchgoer in New Hampshire says prohibitions against large gatherings violate her religious rights. A Pennsylvania golf course owner says that gubernatorial edicts shuttering his business amount to illegal seizure of his private property.

The Lincoln Memorial sits empty on Wednesday after officials told Washington, D.C., residents to stay home to contain the spread of the coronavirus. (AP photo/Patrick Semansky)

If civil libertarians aren’t yet sounding alarms, many have their hands hovering over the button.

“So far, we haven’t had draconian methods, like armed police blocking people’s movement in the streets, surveillance and phone tapping,” said Larry Gostin, a public health attorney at Georgetown University. “But we are seeing lockdowns of millions of citizens like we have never seen before.

“We are on the precipice of something that could transform American values and freedoms.”

Questions about the extent of governmental power to impose restrictions have not been fully resolved for a century, since New York cook Mary Mallon, a typhoid carrier, defied public health department orders to isolate. Mallon, known as Typhoid Mary, lost her legal battle for freedom and ended up effectively imprisoned for 28 years on an island cottage, dying there in 1938.

Responses are no longer as severe. But thousands of Americans are already confined to their homes under threats of fines and even jail. Businesses are losing millions of dollars a day. Workers are laid off.

One man infected with the coronavirus in Kentucky recently left a hospital and refused to quarantine; an armed county deputy was posted outside his home to ensure the 53-year-old stayed put.

“It’s a step I hoped I’d never have to take, but we can’t allow one person who we know has the virus to refuse to protect their neighbors,” Kentucky Gov. Andy Beshear told reporters.

Authority to order shutdowns and quarantines inside states rests almost entirely with states under Article 10 of the Bill of Rights, which cedes power not explicitly delegated to the federal government to states.

The federal government cannot order nationwide quarantines or business closures, courts have ruled. It does, however, have clear power under constitutional clauses regulating commerce to quarantine international travelers or those traveling state to state who are suspected of carrying an infectious disease.

At least some legal scholars believe the Constitution’s Commerce Clause may vest President Trump with powers to impose a national lockdown, but he’d likely have to resort to persuading all 50 states to agree to uniform restrictions if he ever contemplated such a move.

That doesn’t appear to be his inclination. He said this week he was hoping to lift economic restrictions as early as Easter Sunday, April 12, setting up a standoff with state officials who say they can’t risk it.

“The federal government has done guidelines. And then states can follow the guidelines, states can fashion the guidelines to fit their specific circumstances,” New York Gov. Andrew Cuomo said. “What works for New York isn’t necessarily going to work for Tulsa or San Antonio. The federal government isn’t saying we mandate anything.”

Laws spelling out what steps a state can take during a pandemic can be complex and difficult for judges to sort through. Some haven’t been updated in decades, according to the Congressional Research Service.

And they differ state to state. The maximum penalty in most states if someone violates mandatory quarantine — often backed by a court order — is no more than a year in jail. In Mississippi, it can be 10 years in some circumstances, according to the National Conference of State Legislatures.

A few Americans are already fed up and have taken their grievances to court by suing their states. But a relative trickle of legal challenges will likely become a flood if lockdowns drag on for weeks and frustrations mount. The number of dead in the United States has reached 1,042, with more than 69,000 infections, and scientists warn the peak is yet to come.

The Pennsylvania lawsuit filed on behalf of the Blueberry Hill Golf Club says Gov. Tom Wolf’s power to close businesses under state law is limited to manmade or natural disasters such as oil spills, tornadoes and mudslides. The coronavirus, it claims, doesn’t fall into those categories. Pennsylvania has reported more than 1,280 cases and at least 10 deaths.

The state court filing says the golf course has a short window that starts with an influx of golfers in spring to recoup costs of maintaining greens and fairways. With cash flow cut, it may not be able to make vital bank payments, the lawsuit states.

The owner would undertake Covid-19 prevention protocols if permitted to reopen, the complaint states, including but not limited to “requiring golfers to walk, or if golfers wish to ride in carts, require golfers to use individual carts for each golfer.”

So far, judges have rejected the few legal challenges to state restrictions. Pennsylvania’s Supreme Court refused to freeze Wolf’s sweeping shutdown orders. In response to complaints, Wolf did ease restrictions on some businesses.

A New Hampshire court issued a similar ruling in the lawsuit by the churchgoer. It upheld Gov. Chris Sununu’s ban on large gatherings, saying in the ruling that it could not imagine a more critical public objective than “protecting the citizens of this state and this country from becoming sick and dying from this pandemic.” New Hampshire has reported more than 130 cases and at least one death.

But courts have never been asked whether the unprecedented lockdowns are constitutional “and in violation of individual rights,” Gostin said.

He expects a battle all the way to the U.S. Supreme Court on that issue.

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