Unprecedented government restrictions being placed on public gatherings and personal behavior in the face of the coronavirus outbreak could eventually trigger civil rights challenges, but legal experts say they would be tough to win.
“The idea that you’re going to walk into court and object vehemently and successfully against known, proven public health social distancing measures that are being employed currently is not a winner,” said James Hodge, a law professor at Arizona State University. “It’s not going to succeed in courtrooms unless it is a truly egregious practice utilized by a federal or state public authority.”
The law requires governments to weigh public health concerns against individual liberty, but the novelty of the coronavirus and its often invisible transmission complicates any argument that authorities are going too far. New York Governor Andrew Cuomo declared a containment zone around the community of New Rochelle and also issued a statewide ban on gatherings of more than 500 people. Other authorities have imposed similar restrictions, which have led to closures of theaters, concert venues and sports arenas.
“Historically governments made up of politicians very often abuse their power and limit liberty,” said Norman Siegel, a former director of the New York Civil Liberties Union. “The question becomes what’s the criteria, what’s the specifics?”
In 2014, Siegel successfully challenged the imposition of a quarantine at Newark airport of a nurse returning to the U.S. from treating Ebola patients in Africa but showing no symptoms herself. To settle the lawsuit, New Jersey agreed to put in new rules for quarantines to guarantee due process and ensure they only happen when medically necessary.
But Siegel said coronavirus was different from Ebola, which generally presents with clear symptoms.
“Here you could be contagious without any symptoms,” he said. “It makes it much more difficult to fight the coronavirus.” That difficulty would justify much more aggressive measures by the government, Siegel said.
Louis Raveson, a professor at Rutgers Law School in New Jersey, said people who reject quarantine orders and other government restrictions could find themselves in the legal crosshairs.
“There may be some personal criminal liability on the part of individuals who don’t obey a court order or even a state’s order to stay home and be quarantined,” Raveson said. “We also might see civil contempt orders issued, telling people to stay home or be punished by criminal fines or imprisonment if people don’t obey them.”
Raveson said governments gain power in times of crisis. “The state has the power to overcome constitutional rights and civil rights in cases where there’s an emergency, where there’s a compelling state interest to overcome it,” he said.
Wendy Parmet, a health policy and law professor at Northeastern University in Boston, said safety was also outweighing liberty in the minds of those potentially affected by restrictions, at least for now.
“If we were to move to lock downs or domestic travel bans, I assume there would be litigation if it got too draconian,” she said. “Right now everything is shutting down, but 9/10th of it is voluntary.”
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