PROTECTING RIGHTS DURING COVID-19 IS NOT ALL OR NOTHING
Gretchen Whitmer or in New York by Governor Andrew Cuomo is clear, consistent with constitutional law and legal. In other words, during a pandemic, some constitutional rights may be burdened, but only to protect the public health and promote safety.
Nevertheless, government authority is not absolute—and that’s important to keep in mind, even in times of pandemic. In fact, during times of national disaster and health crises, government may attempt to exercise unconstitutional authority or unfairly or excessively infringe on civil rights and civil liberties.
Historically, governments, including our own, have deployed protecting the public health as a justification when seeking to harm and undermine the civil liberties of vulnerable groups. From eugenics, involving the forced sterilization of poor girls and women, to racial discrimination involving water fountains, swimming pools and interracial marriage, politicians have oftentimes claimed to be in the service of public health goals when actually serving no other purpose than the perpetuation of social and racial stereotypes and discrimination.
Nearly a century ago, the commonwealth of Virginia claimed it was in a public health crisis, “swamped” by children, men and women it considered socially and morally unfit. Its solution was to impose sterilization on Virginians as young as 10 years in order to rid the state of those who “burdened” society. The sad result included the sterilizations of thousands of people in Virginia alone—a clear violation of civil rights and civil liberties.
During this pandemic, questions related to the limits of governmental authority are all the more pressing and relevant in the wake of legislatures in Alabama, Indiana, Mississippi, Oklahoma and Texas, among others, that have used the pandemic as a cover for discriminating against women by dismantling abortion access. From a medical perspective, this is all the more senseless and tragic, considering that abortions are as safe as penicillin shots and far safer than child delivery; a woman is 14 times more likely to die by carrying a pregnancy to term than having an abortion. In these instances, hampering abortion rights had nothing to do with protecting health and safety, but were simply political attempts to undermine abortion rights.
For these reasons, government infringements on civil rights and civil liberties should be driven by science, confirmed by medical evidence and tailored to address the health harms and threats. It’s not all or nothing—that’s too simplistic a view. Rather, protecting the public’s health and safety during COVID-19 requires prioritizing the public’s health while safeguarding civil liberties.
→ Michele Goodwin is professor of law and founding director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine School of Law. The views expressed in this article are the writer’s own.