Constitution Has Answers for Balancing Health and Liberties Amid COVID-19, Experts Say
Three experts in the areas of constitutional law, environmental law and public health write in a new essay that one of America's founding documents provides the framework for finding common ground to fight COVID-19.

By Kyle Mittan, University Communications
July 29, 2020

As COVID-19 affects every aspect of American life, it has also emerged as a politically polarizing issue, and measures to mitigate the disease's spread have brought about debates on balancing public health and civil liberty.

Three University of Arizona experts weighed in on how norms and values defined in the U.S. Constitution could guide pandemic-related law and policy. A working draft of their essay was released on the Social Science Research Network in late June as part of Arizona Legal Studies, a series of working papers by faculty and students in the James E. Rogers College of Law.

The paper will later be submitted for journal publication.

The paper was authored by Regents Professor of Law Toni Massaro, who holds the Milton O. Riepe Chair in Constitutional Law and is dean emerita of the law college; professor of law Justin Pidot, co-director of the college's Environmental Law Program; and Regents Professor of Medicine Dr. Marvin Slepian, associate head of the Department of Biomedical Engineering, and a member of university's Sarver Heart Center and BIO5 Institute. Slepian is also pursuing a UArizona law degree.

The three authors discussed specific constitutional values that could guide COVID-19-related policy, why balancing civil liberty with public health has become so challenging in this pandemic and what we can learn from previous health-related legal decisions.

Q: Why is bridging political divides so important in addressing COVID-19?

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Justin Pidot
Justin Pidot

Pidot: Acting together is our best hope, really our only hope, to save lives and minimize the economic consequences of the pandemic. The consequences of disunity are high.

People who won't comply with public health measures – for example, by refusing to wear facemasks – will increase the health risk to the community. This will also sap other people's confidence that they can leave home safely. People who remain home will undermine economic recovery.

If you look behind the political rhetoric, Americans also broadly share a common goal. We all want to safely return to our families, jobs, schools, grocery stores, favorite restaurants, pubs, beaches, parks and all of the other places that make up our lives.

In other words, we are all in this together, and when you get right down to it, we want the same thing.

Q: What values laid out in the Constitution could provide the framework for policies to address the pandemic?

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Toni Massaro
Toni Massaro

Massaro: The constitutional values are principally derived from the Bill of Rights, due process and equality. These are widely shared values, which might enable them to garner broader public acceptance.

First is rationality, which here means that the conditions for returning to normal life should be based on best available research and knowledge about the virus and its risks – a "science forward" approach. Ideally, policy planners would have a scientist with expertise in virology to help them shape the policy and explain to the public why the policy is sound and necessary for human health. Also, the means chosen to advance the science-forward ends must be reasonable.

The second norm is to assure the policy has procedural integrity. People have a right to expect fair notice of the new requirements, and a meaningful opportunity to be heard about their application to them. For example, employees should be given a chance to explain why a return to the worksite may be infeasible given their personal health or other responsibilities.

The third norm is an American, shared respect for fundamental liberties. Special care should be taken to assure that fundamental liberties are restricted only as necessary. For example, if contact tracing is essential to effective virus management – and this has long been a tool used for pandemics – then the tools should protect personal identity as much as possible while still serving the public health end of locating people who test positive for COVID-19. That is, the pandemic policies should be science-forward and rights-sensitive.

In constitutional law parlance, we say the rules should be "narrowly tailored" to avoid, as possible, invasions of the core values. Examples of core values include freedom of speech and association, freedom of religion, privacy, family rights, reproductive rights and so on. You already know what these special zones are, even if you are not a law-trained person. But you also know not even fundamental rights are absolute. You cannot cry "fire!" falsely in a crowded theater. You cannot swing your arm to connect with my nose. This is because we are not alone in our liberty, as COVID-19 makes clear. We need to cooperate, and we owe duties to others.

Finally, we all value equality. COVID-19 policies thus must be mindful of the disparate impact of the virus. Some populations and communities are more at risk and less able to protect themselves. Equality here thus means the policies need to protect these vulnerable groups, and greater resources may need to flow to these groups so compliance with protocols is possible. If a major rule is "wash your hands often," then planners need to assure that clean water is available. If social distancing is necessary to disease containment, then we need to address crowded or mandatory living situations that make this impossible. But it also means like people should be treated alike. Restrictions should be tailored to address risks in ways that respect that basic equal treatment norm.

Q: Why has it become so seemingly difficult for Americans to find the balance between civil liberties and public health in this crisis?

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Marvin Slepian
Marvin Slepian

Slepian: First off, stress, fear and risk unfortunately make people think more of themselves or their personal liberty and less of the impact on others or the collective good, whether it's being told to stay home and not work, to not congregate and socialize, or to cover their face and wear a mask.

Second, lack of understanding. Most people have limited to no understanding of how viruses work – not knowing the differences between viruses versus bacteria, differences in transmission, growth, means of prevention, means of eradication, effects of medications, et cetera. Lack of education as it relates to health – and public health measures in particular – results in uninformed personal decision-making.

Third, lack of learned counsel and leadership, compounded by an inadequate overall public health infrastructure, has let randomness, political influence and loud and often inaccurate voices fill the void. This has created a misaligning milieu, rather than an organizing, stewarding environment facilitating alignment of all stakeholders.

What is really needed is to put freedom or liberty in ethical and constitutional perspective, realizing that one's liberty only operates and extends to the edge of impacting another's – particularly when this liberty may lead to another's death.

Q: You write in the essay that "pandemics provide sufficiently compelling reasons to restrict" some liberties. How do you make that case for people who may completely disagree?

Pidot: Education is part of the answer. The scientific and medical community understand a lot about this disease and what we can do to protect ourselves from it. We need our leaders to communicate this information clearly and without spinning it. If people understand the risk that COVID-19 poses to their health and the health of their loved ones, that will help.

Acknowledging the ways in which public health policies impinge liberty is another part. We won't get anywhere by pretending that public health measures don't impose real costs on people. It's easier for people to tolerate those costs if the sacrifices they are being called upon to make are recognized and validated.

Finally, we need to ask people who oppose public health measures to think practically about what they want. Most Americans who think this way want desperately to return to "ordinary life." But returning to our communal lives requires other people to participate, too, and that will require compromises.

Q: The essay mentions a 1905 Supreme Court decision that upheld mandatory vaccinations during a smallpox outbreak. What implications does that decision have for this pandemic?

Massaro: The case was Jacobson v. Massachusetts, and the nuanced framework the U.S. Supreme Court set forth there still matters and still is being cited today. Justice Harlan explained that the court recognizes the authority of a state to enact quarantine laws and "health laws of every description."

He added: "There are manifold restraints to which every person is necessarily subject for the common good. ... Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."

This is obviously true in a pandemic. Our liberties exist within a social compact that aims to promote the common good, including public health. Again, we sink or swim together. Put another way, as another justice said, "Our Constitution is not a suicide pact."

That said, policies must be rights-sensitive. The Constitution is not suspended in a pandemic. Again, Justice Harlan's words are relevant today: "There is … a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government – especially of any free government existing under a written constitution, to interfere with the exercise of that will."

We think the Jacobson balance between science-based restrictions and respect for fundamental liberties is intuitive. It also is still the law.

We argue these are sound principles to apply even in private settings, where policymakers are not subject to constitutional constraints.

So, we encourage all who craft and must enforce health-related conditions on our returns to work, school, and other places where we wish to congregate to invoke these norms, be guided by them, and make them visible to the people affected by the conditions they impose.

Q: Are there particular groups that this essay is intended to reach, and what impact do you hope it might have?

Massaro: We hope to reach policymakers at all levels – from government to private businesses and other private associations. But we also are speaking to all who are affected by the pandemic policies. In other words, all Americans.

Our willingness to adhere to rational public health measures now may enable us all to resume our collective lives – and exercise our freedom of association – sooner. We all look forward to that day. But for now, we need to fight this thing together.

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Researcher contacts:

Toni Massaro
James E. Rogers College of Law
520-626-2687
massaro@email.arizona.edu

Justin Pidot
James E. Rogers College of Law
520-621-5576
jpidot@email.arizona.edu

Marvin Slepian
Department of Medicine
520-661-8241
slepian@email.arizona.edu

Media contact:

Kyle Mittan
University Communications
520-626-4407
mittank@arizona.edu