Liberty vs. Safety: Pandemic Response Raises Tough Legal Questions

By Rick Esenberg

Last week, I analyzed the potential legal issues raised by the initial social distancing orders issued by Tony Evers and other governors. This week, the Governor issued a more stringent “lock-down” style order, euphemistically entitled the “Safer At Home” order. What can we say about this?

As I explained previously, any challenge to an order designed to restrict movement in the face of disease would have to contend with a long history of cases supporting short-term quarantines to control infectious diseases. The persuasiveness of these older cases to a current court would be strengthened by the dire predictions associated with the novel coronavirus but weakened by the breadth and duration of the order. Quarantines are usually limited in scope — involving the isolation of individuals and small groups — and duration. The restriction orders being put in place now are either relatively lengthy (Evers’ order is in effect for thirty days) or indefinite in duration.

Evers’ order is an extraordinary document. Like similar orders issued in the past few days by other governors, I have never seen anything like it. The governor orders Wisconsinites to stay at home. They may not host or visit friends or family who do not live with them, no matter how small the group or close the relationship. As the Governor said at a press conference, “no sleepovers, no play dates, and no dinner parties with friends and neighbors.” While there are many exceptions to the lock-down imposed by the order, almost all are subject to “Social Distancing Requirements” which, among other things, specify how long you must wash your hands and how a cough must be covered. Cough into your hands (rather than your elbow or sleeve) and you are subject for imprisonment for up to thirty days.

While there are a number of exceptions and they are so loosely drafted that many businesses will be able to argue that they can remain open, the order exerts plenary control over our economy. Everyone must close except for those businesses which the state affords a dispensation. That there are, as near as I can tell, quite a few of them does not undercut the gob smacking presumption of the order. It assumes the power to exercise unlimited control of private entities.

Even our most basic and fundamental liberties are substantially impaired by the order. There are exceptions for an excursion to the pet store, but not for political canvassing or meetings. Grocery stores can be full of people subject to certain restriction, but religious gatherings must limit themselves to fewer than ten (even in the grandest of cathedrals) and must comply with Social Distancing Requirements “as much as possible.”

As we explained last week, all of this raises profound constitutional questions and could be challenged in a variety of ways. But because constitutional rights are not absolute, a court asked to pass on the constitutional validity of any of these restrictions would have to engage in some type of balancing test. Some types of claims might require a form of balancing that is called “strict scrutiny.” For claims involving freedom of speech, certain family rights, the right of assembly and (under Wisconsin’s constitution) the freedom of religion, the government would have to show that the restrictions are necessary to achieve a compelling state interest and are narrowly tailored to serve that interest. For other claims involving due process and certain forms of equal protection, the government would only have to show that the restriction was rationally related to a legitimate state interest. Particularly if strict scrutiny is involved, the government would have to prove the weight of the interest that it seeks to advance and the connection between it and the restriction being challenged.

If a plaintiff were to challenge the order’s broad prohibition on public assemblies, a court might ask if such a ban is necessary to achieve an interest that is critically important (“compelling”) and no less restrictive than required to serve that interest. But, in the context of the coronavirus, this is where the constitutional analysis starts to break down. There is no question that preventing spread of the virus is compelling. But are these particular restrictions necessary for that purpose and narrowly tailored to achieve it?

Too much uncertainty

If this were the end of the matter, the order — or at least the more stringent restrictions introduced over the past week and a half — would almost certainly be declared unconstitutional. But it is not. The state will argue that experience elsewhere and simulations that show catastrophic spread of the virus support its argument that the restrictions are both necessary and narrowly tailored. In particular, it relies on a model developed by researchers at Imperial College in London which purports to “show” that there may be 2.2 million deaths in the US without aggressive social distancing measures (and, alarmingly, 1.1 million with the measures in place unless they are continued until a vaccine is developed). Governor Evers and his administration has somehow extrapolated from this work (and, perhaps, similar claims) to assert that, without this order, 20,000 Wisconsinites could be infected within two weeks and 1000 of us might die.

This is frightening and certainly warrants a serious response. But models like this are only as good as the assumptions they employ and the data they are based upon. While there are areas that have seen alarming increases in confirmed cases, there are others that have not. We know that COVID-19 can spread rapidly, but, given the novelty of SARS-CoV-2, there is limited data from which to create a model that can be applied across differing populations and locations. It is no criticism of the scientists involved to say that they can offer little more than educated guesses. No one could do better. Stanford epidemiologist John Ioannidis complains that the data we have is “utterly unreliable” — what he calls an “evidence fiasco.” If he’s right, modeling simply isn’t possible. David Katz, an expert in public health at Yale, calls restrictive orders like this “open warfare” when a “surgical strike” is required. Nobel laureate and Stanford biophysicist Michael Levitt argues that the “real situation is not as nearly as terrible as they make it out to be.” This is not to say that the models are wrong. It is to suggest that there is much we don’t know.

You can see the problem for constitutional adjudication. Normally, evidence that is uncertain or speculative could not justify the restriction of fundamental rights; government action based on it could not withstand strict scrutiny. But lawyers have a saying: ‘Hard cases make bad law.’ A case can be hard for many reasons. In the present circumstances, the level of fear and uncertainty surrounding the pandemic would make most challenges difficult. The risk of a very bad outcome — and the present difficulty in assessing its probability — present daunting challenges to any litigator who would seek to challenge the restrictions at this current moment.

But that doesn’t mean that the proper response to orders like the one enacted by Governor Evers is unquestioning quiescence. Even if you ultimately conclude that these restrictions are justified, a broad and lengthy restriction on constitutional liberties — an order that you may not see family, can’t work and are prohibited from worship or gathering with your fellow citizens — based on what might happen ought to at least trouble you. If we accept them, we ought to do so provisionally and with ongoing scrutiny of the need for them to continue.

Even if we accept the more dire forecasts for COVID-19 or they, God forbid, turn out to be true, all agree that restrictive orders like these are not necessarily efforts to suppress the virus but attempts to slow or mitigate its spread to avoid overwhelming the health care system. And that is the objective that must justify the restrictions. Under such circumstances, it is reasonable to ask whether the level of restriction is narrowly tailored to the goal of mitigation or “flattening the curve.”

But an order like this is in unavoidable tension with our Constitution and with the very foundation of the American project. It must be limited in duration, narrow in its application and requires extraordinary justification at every step of the way. John Philpot Curran said, “the condition upon which God hath given liberty to man is eternal vigilance.” Questioning the scope of the order and the length of its duration as new information is available is the vigilance that liberty requires.

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