On March 19, 2020, Governor Wolf ordered all non-life-sustaining businesses in Pennsylvania to close physical locations as of 8pm that day.
In doing so, the Governor stated that “To protect the health and safety of all Pennsylvanians, we need to take more aggressive mitigation actions.” He went on to say that, “This virus is an invisible danger that could be present everywhere. We need to act with the strength we use against any other severe threat. And, we need to act now before the illness spreads more widely.”
Strong words, and they only got stronger. Over the course of a few weeks Governor Wolf started by ordering all residents of certain heavily-effected PA counties to stay at home, permitting travel only for life-sustaining activities, then some time later he added a few more counties to the list, then eventually ordered all residents of PA to stay at home.
In the first year of law school, and in many undergraduate courses, students learn that government action has many limitations, perhaps most important of which is the concept of Due Process of Law. The formula is as simple as this on paper and provide a prism through which our analysis of quarantine enforcement shall pass through.
The Constitution and the Bill of Rights describe the rights that American citizens have and that those rights pre-exist government. The purpose of our government is not to provide those rights. The purpose of our government is to protect those rights. As you might imagine, in order to protect your ability to exercise your rights, the government has to protect your life first. You cannot exercise your rights if you are dead after all. That being said, those rights that citizens have are fundamental, and inalienable. Government protects those rights, and shall make no law infringing upon them without due process of law. Where the government seeks to infringe upon a fundamental right, it may do so but only under extremely limited circumstances. The circumstances are that the action the government takes must be for the purposes of advancing a compelling government interest. Not only that, but the action that the government takes must be narrowly tailored in furthering that compelling government interest. The protection of Americans’ lives is a compelling government interest, but the action the government takes in protecting their lives cannot infringe on their freedoms without narrowly tailoring their actions to furthering the protection of citizens’ lives. Whether something is narrowly tailored can fall on a number of different factors. Action is not narrowly tailored where the action is either over or under inclusive in how it furthers the compelling interest.
Surely the Governor and his staff put a lot of time and effort into the order, but after the order was made, one big question remained; What will the enforcement of these stay at home orders look like? And more thematically, whether the actions of enforcement the government decides to take are actions that the government is actually allowed to take?
In York County, PA you can get a good answer to the first question from Natasha Long and Bernardo Teran. For them, the answer was a summary non-traffic citation. For many others, the answer is this;
“we just can’t afford to keep you on anymore, call us when this is over”.
Most would agree as a general matter that as of today, America finds itself in a position that it simply has not been in before.
But on the other hand, maybe we have been in a similar position before.
On January 20 of 2020, the CDC confirmed that a man in Washington state who had recently visited Wuhan, China was the first person the United States to test positive for COVID-19. As of this writing almost three months later the death toll for Coronavirus in the United States stands at approximately 23,000.
In just the month of October in 1918, the Spanish Flu killed 100,000 Americans. The total US population at the time was about 100,000,000. By the end of the pandemic, approximately 675,000 people had died in the US. 50,000,000 died worldwide. Life expectancy in the US dropped 12 years.
Just like now, as the pandemic spread, many regulations were put in place through the power of local health departments. And what did they do?
“In the United States, the Committee of the American Public Health Association ( APHA) issued measures in a report to limit large gatherings. The committee held that any type of gathering of people, with the mixing of bodies and sharing of breath in crowded rooms, was dangerous. Nonessential meetings were to be prohibited. They determined that saloons, dance halls, and cinemas should be closed and public funerals should be prohibited since they were unnecessary assemblies. Churches were allowed to remain open, but the committee believed that only the minimum services should be conducted and the intimacy reduced. Street cars were thought to be a special menace to society with poor ventilation, crowding and uncleanliness. The committee encouraged the staggering of opening and closing hours in stores and factories to prevent overcrowding and for people to walk to work when possible (JAMA, 12/21/1918).”
https://virus.stanford.edu/uda/fluresponse.html
With 100 years of experience to go on, America of 2020 is in an exponentially better position to combat the spread of a pandemic. For example,
“In 1918, the tools to fight the pandemic were limited. Viruses had not yet been identified, there were no vaccines to protect against the flu, no antivirals to reduce symptoms, and no antibiotics to treat complications like bacterial pneumonia. Control efforts worldwide were limited to methods such as quarantine, hygiene, use of disinfectants, and limits on public gatherings.”
https://www.lung.org/blog/centennial-of-a-pandemic
As outlined in our due process template, laws must serve a purpose and they must serve the greatest purpose where they seek to infringe the fundamental rights of Americans. In 1918 the government sought to regulate public life in many of the same ways it attempts to do so now. In fact, you could probably copy and paste the above passage into an article from this morning and nobody would question it.
So, we have seen this before. And by all measures, we were better prepared than last time. Then how could we feel so blindsided by this all?
I’m not sure of the answer to that question, but for those working in criminal defense in PA, the questions that are relevant to us are the ones posed earlier; what will the enforcement of these stay at home orders look like? And whether the actions of enforcement the government decides to take are actions that the government is actually allowed to take?
These questions as well as the due process template included earlier will guide the discussions for this Quarantine Enforcement series.
Additional recommended reading:
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