Americans Are Suing to Protect Their Freedom From Infection

Once, people were asking to be exempted from measures that kept the public safe. Now the reverse is happening.

An illustration of red scales of justice balancing two coronaviruses.
Getty; The Atlantic

About the author: Wendy E. Parmet is the Matthews Distinguished University professor of law and director of the Center for Health Policy and Law at Northeastern University.

As the pandemic stretches on, a new era of COVID-19 litigation has begun. At first, America’s pandemic litigation followed a familiar script: Religious worshippers, business owners, and anti-government populists protested against public-health orders, and asked courts to either declare them exempt or scrap the orders altogether. This time, state governments are blocking public-health measures, and plaintiffs are asking courts to force their states to protect them.

The first round of COVID-19 litigation began in March 2020, as states scrambled to control the rapidly spreading coronavirus. During this period, states ordered businesses and religious institutions to close, limited gatherings, banned elective medical procedures, and in some instances, blocked interstate travel. Later, states mandated masks and stayed evictions. More recently, some have mandated vaccinations at state universities, in health-care settings, and even, as in New York, at restaurants and theaters.

Not surprisingly, opponents of these measures have gone to court, bringing more than 1,000 cases in different jurisdictions across the country. The challengers have raised almost every constitutional and statutory claim imaginable. They argued, in some cases with the support of the Trump administration, that public-health orders had limited their rights to free speech, free assembly, worship, and travel. They claimed that public-health orders had violated equal protection and due process and exceeded the executive authority of whatever official issued the order.

Initially, most courts rejected such challenges, stressing the need to defer to public authorities during a pandemic. Early on, the Supreme Court also signaled that it was in no mood to override public-health measures. In May 2020, in South Bay United Pentecostal Church v. Newsom, the Court by a 5–4 vote refused to block California’s ban on in-person worship. The majority did not issue an opinion, but in a concurring opinion, Chief Justice John Roberts explained that “our Constitution principally entrusts ‘the safety and health of the people’ to the politically accountable officials of the state.”

In the months following South Bay, most courts, with notable exceptions, continued to uphold the majority of public-health orders. The Supreme Court, however, appeared to reverse direction after Justice Amy Coney Barrett joined the Court following Justice Ruth Bader Ginsburg’s death. On November 25, by a 5–4 vote, the Supreme Court in Roman Catholic Diocese of Brooklyn v. Cuomo ruled that New York orders setting capacity limits for in-person worship violated the First Amendment’s protections for the free exercise of religion. In strongly worded concurring opinions, several justices made clear that the time for deference—at least in religious-liberty cases—had passed.

Since then, the Supreme Court has issued several other decisions upholding religious-liberty challenges to public-health orders, even when the orders did not explicitly target religious worship. In addition, last week, by a 6–3 vote, the Court blocked the CDC’s revised eviction moratorium, ruling that the agency had exceeded the scope of its statutory powers. In an unsigned opinion, the Court suggested that the CDC’s authority was limited to actions that “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.”

Decisions restricting public-health orders hamper the government’s capacity to fight the fourth wave of the pandemic. The Court’s eviction decision threatens to leave an estimated 1.5 million individuals homeless, even as COVID-19 cases surge. The religious-liberty cases, for their part, have raised new legal questions, for example, about the need for religious exemptions to vaccine mandates. They have also endorsed the view—espoused by some Republican governors and many conservative commentators—that public-health orders threaten individual liberty.

Yet even as cases challenging public-health orders continue to work their way through the courts, a new round of litigation has begun. In recent months, several states have passed laws curbing public-health powers. For example, Ohio has enacted legislation limiting the duration of a public-health emergency declared by the governor to 90 days, unless the legislature extends it. Nine state legislatures have banned proof-of-vaccination requirements. Arkansas and North Dakota have passed laws banning mask mandates in schools. In addition, several governors, such as Greg Abbott of Texas, have used their executive powers to restrict the ability of local governments, schools, and businesses to mandate masks and vaccines. All told, at least eight states prohibit mask mandates in schools.

These new anti-mandate measures are now facing court challenges of their own. Some of the claims argue that officials have violated the authority given to localities under the state constitution. For example, an Arkansas judge last month ruled that the state’s ban on mask mandates infringes upon the powers granted to local and judicial officials under the state constitution. More recently, the Texas Supreme Court allowed a lower-court decision blocking Abbott’s ban on mask mandates in schools to remain in effect pending further litigation, and a Florida circuit court ruled that Governor Ron DeSantis lacked the power to bar school districts from mandating masks in public schools.

The most interesting cases to date, however, have been brought on behalf of children with disabilities who claim that the anti-mask measures violate federal laws prohibiting discrimination against people with disabilities. The theory is that by failing to allow schools to take reasonable steps such as mandating masks to make schools safe for children who are at high risk of complications from COVID-19, the states have violated students’ civil rights. The Biden administration appears to endorse this view. Recently, the Department of Education has begun an investigation into whether laws restricting mask mandates in schools in Iowa, Oklahoma, South Carolina, Tennessee, and Utah violate the rights of students with disabilities.

By focusing on students’ rights to be safe at school, this new round of litigation seeks a very different type of freedom than plaintiffs sought in the earlier round. Now, instead of demanding the freedom from health measures, plaintiffs are seeking the freedom that, in a pandemic, only health measures can provide.

These new cases offer the courts an important opportunity to correct the simplistic view of freedom evident in the initial round of litigation. Still, in a well-functioning polity, we would not need litigation to ensure that children can remain healthy at school. Public-health measures would be less contentious and less often litigated. Although courts have a crucial role to play, especially in protecting the rights of the most vulnerable individuals, judges generally lack training or experience in public health. They are not well equipped to make public-health policy, which is what they have been doing, far too frequently, throughout the pandemic.