COVID-19, one of the most formidable viral foes that the world has faced in a century, has caused more than 4.5 million deaths. The United States and nearly every other country besides were correct to declare it a public-health emergency. But now federal, state, and local officials are grappling with when to end the temporary emergencies declared in early 2020, in many cases with the expectation that they’d last just weeks. The U.S. Department of Health and Human Services, which has been renewing its emergency order every 90 days, told governors earlier this year that its crisis footing would likely continue for at least the entirety of 2021.
How will we know when this crisis is over? There is no consensus. In fact, elected officials, health experts, and issue advocates disagree all the time about what even constitutes a public-health emergency or crisis. Is “COVID-19 misinformation” an example? A narrow majority of the San Diego Board of Supervisors says so. Is pornography? Sixteen state legislatures say so. Is climate change? Abortion? Laws limiting access to abortion? The list hardly ends there. Ongoing campaigns treat vaping, racism, opioid use, campus sexual assault, youth suicide, air pollution, alcohol abuse, and more as public-health emergencies.
Those are all issues that may warrant public-health interventions, such as sending heroin addicts to treatment, reducing suicides with free counseling, or asking pediatricians to warn parents about the dangers of unsecured guns in the home. But declaring a public-health emergency or crisis means more than simply taking a public-health approach to a problem. In a public-health emergency, civil liberties as core as freedom of movement can be abrogated. And deliberative democracy is degraded or suspended in favor of greater power for executives, such as Donald Trump, Joe Biden, Andrew Cuomo, and Ron DeSantis, or unelected bureaucrats, such as the presidential adviser Anthony Fauci and the L.A. County Department of Public Health Director Barbara Ferrer. Even when a public-health emergency is warranted, authoritarian abuses can follow. To declare an emergency often or with no limiting principle or criteria for returning to normal invites abuse, and can make conflict hard to resolve, because what constitutes legitimacy is disputed.
For example, states are divided as to whether, at this stage of the pandemic, local officials should be able to impose mask mandates or order public employees to be vaccinated against COVID-19. When striking down the CDC’s eviction moratorium, the Supreme Court wrote, “It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
So what exactly should count as a health emergency in the future? The law professor Lindsay F. Wiley, the director of the health law and policy program at American University, argued earlier this year for a narrow definition. “Unlike more general emergency and disaster declarations,” she writes, “these authorities should be contingent on a demonstrated threat of a serious communicable disease with epidemic potential—one that is believed to be caused by a novel or previously controlled infectious agent that is readily transmissible from person to person and likely to cause a large number of deaths or serious disabilities.” A multinational Ebola outbreak qualifies. Vaping doesn’t.
Wiley’s restrictive standard is prudent. In an American Ebola outbreak, a speedy, effective response could mean the difference between a handful of deaths and many thousands, and deliberative democracy as it normally functions might be incapable of combining the speed, subject-area expertise, and execution required to stamp out the pathogen. But powerful factions on today’s right and left are perpetually seduced by the prospect of imposing their favored policies by fiat, seeking to sidestep public opinion and democratic deliberation by exploiting emergency rules.
When this tactic succeeds, it throws democracy itself into crisis.
Abortion policy is one instructive example. When civic institutions are functioning normally, the faction that wants to prohibit all or most abortions in the United States has little prospect of succeeding. Too many Americans believe such a ban would infringe too much on reproductive rights.
But under the distinct logic of a public-health emergency, abortion could be prohibited anyway, or so Bruce Blackshaw and Daniel Rodger argued earlier this year in the journal Bioethics. As they point out, the implicit moral theory of public-health emergencies is that the utilitarian benefit of saving many lives at the population level justifies some curtailment of individual rights. During the coronavirus pandemic, they note, freedom has been severely constrained. And now many people support vaccine mandates, though such measures would infringe on rights to medical privacy and bodily autonomy. “Abortion is of similar gravity in terms of the numbers of deaths,” the authors argue. “If fetuses are considered to be persons,” they continue, “abortion constitutes a significant public health crisis. Consequently, widely accepted public health ethical principles justify overriding individual rights to bodily autonomy in order to prevent maximal harm to the population of fetuses.”
Of course, different factions contest whether an embryo or a fetus is fully a human life or only a precursor to it. But banning abortion via public-health emergency should fail regardless, no matter the death toll, because abortion deaths are not a “health emergency”—by which I mean they are not an imminent and unexpected danger that requires unusual speed and expertise to address. Elected officials and members of the public have had ample time to ponder and debate abortion. No new, unforeseen circumstances justify removing it from our normal civic processes.
To change policy, one must convince citizens, win over legislators, or prevail in court—not persuade one like-minded official to declare an emergency, only to have a pro-abortion-rights successor reverse everything by declaring, “Lack of access to abortion is the real emergency.” Imagine the civic chaos that would follow if abortion were adjudicated in that manner.
Or consider guns. Earlier this year, New York Governor Andrew Cuomo (who has a wildly inflated opinion of his sometimes-disastrous response to COVID-19) declared gun violence a public-health crisis in his state. “If you look at the recent numbers, more people are now dying from gun violence and crime than COVID,” he declared. “Just like we did with COVID, New York is going to lead the nation once again with a comprehensive approach to combatting gun violence.”
Combatting gun violence is a worthy goal. And in declaring the emergency, Cuomo announced certain steps that I happen to favor, such as requiring police departments to release incident-level data on shootings and investing in jobs programs for at-risk youth. But gun policy ought to be decided through normal democratic processes, not emergency declarations, because Americans have had ample time and information to consider the matter.
We all have issues that we wish Congress or our state governments would prioritize or address with the policy we “know” to be better. But marshaling emergency powers to get around deliberative democracy is corrosive and likely to make the status quo more, not less, dysfunctional. Every time politicians say “We should treat this like a public-health emergency,” the public should reflect on whether their intention is to wield power they couldn’t otherwise get. Even during an emergency, officials should not deploy their extraordinary authority in ways that the polity would reject if it had more time and knowledge. How the people are represented may be temporarily altered. The ideal of government by the people should not be.
And just as government officials shouldn’t expect to apply emergency powers except sparingly and in genuine crises, they should also recognize that those powers cannot go on forever. The longer that the coronavirus pandemic stretches on, the less the use of emergency powers to address it can be justified, because at some point legislators catch up enough to reassume responsibility.
The Delta variant may have “changed the war” against COVID-19, as the CDC famously declared, but we’re past the point where scientific expertise is the main skill set America requires. As Michael Brendan Dougherty put it in National Review, “Governors and presidents cannot set policy just by ‘following the science.’ Science has no legitimate way of assessing the public’s tolerance for certain measures and intrusions. Nor does it have the ability to weigh competing and contrary claims of political and economic liberty against public-health priorities."
Such are the inescapably political questions Americans must face in a future where COVID-19 looks likely to become endemic, but vaccines offer strong protection against serious illness and death. The virus may always remain in our midst. The practice of meeting its challenges by exercising power outside the normal channels of deliberative democracy must not.