Newsweek - - Periscope - By Michele Good­win

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.

THE RIGHT TO AS­SEM­BLE Protest­ing against a pol­icy of co­erc­ing women into be­ing ster­il­ized at County USC Med­i­cal Cen­ter in Los An­ge­les, circa 1974.

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