Over the past few weeks, the country has rapidly adjusted to a myriad of restrictions implemented at the local, state, and federal levels to address the coronavirus pandemic. While some of these are nothing more than best practices—such as handwashing, disinfecting, and sanitizing—some of the executive orders by governors and other officials raise constitutional concerns, touching on citizens’ liberty, assembly, and privacy rights.
In several states, including Alabama, Ohio, Oklahoma, and Texas, governors have issued executive orders temporarily postponing non-essential surgeries and other medical procedures in light of COVID-19, and have included abortion among those procedures. The Texas order was challenged in federal court, and the Western District of Texas judge issued a temporary restraining order allowing abortion procedures to continue. On April 7, the Fifth Circuit vacated the district court’s order, stating that it had “ignored the framework governing public health measures like [the Texas order].” In support of its ruling, the Fifth Circuit noted that, in the face of “great dangers,” constitutional rights may be restricted—including restrictions on assembly, worship, travel, leaving one’s home, and abortion. The Fifth Circuit’s full opinion is available here.
While bans on large gatherings have largely been respected across the nation, a handful of churches have refused to cancel services on religious liberty grounds. Louisiana pastor Tony Spell was arrested for holding services despite his state’s ban on gatherings exceeding 10 persons, even after maintaining that attendees remained a distance of at least six feet from others in compliance with published guidelines. Similarly, Florida pastor Rodney Howard-Browne turned himself in to authorities after an arrest warrant was issued based on his holding services in violation of his state’s “safer at home” order. Howard-Browne then acquiesced to the order by closing the church doors, but posted a lengthy statement defending his position and threatening a legal challenge to the Florida order. Shortly thereafter, Florida Governor Ron DeSantis revised his executive order to deem church services as “essential,” according to local coverage.
Additionally, privacy concerns have been raised in conjunction with Google’s COVID-19 Community Mobility Reports, which use location information gathered from users to track coronavirus movement trends. By making these reports available to the public at https://www.google.com/covid19/mobility/, some fear this information may be used against individuals in light of local and regional orders requiring people to stay at home. U.S. Senators Edward Markey and Richard Blumenthal have written to Google inquiring of the sources for these reports and Google’s intent to share this data with governments or private researchers.
As we contend with this unprecedented pandemic, the government’s emergency powers will certainly continue to be exercised, as well as challenged. For a detailed overview of emergency powers available under federal law, see “A Guide to Emergency Powers and Their Use” by the Brennan Center for Justice.