Lindsay F. Wiley, J.D., MPH, is a professor of law and director of the Health Law and Policy Program at American University Washington College of Law. With Lawrence O. Gostin, she is the co-author of Public Health Law: Power, Duty, Restraint (3rd ed., 2016) and Public Health Law and Ethics: A Reader (3rd. ed., 2018).
The social distancing strategy state and local leaders have employed in the absence of federal support for widespread testing and tracing is not the same as isolation and quarantine of those known to be infected or exposed. People with known infections or exposures may be ordered to stay at home without any exceptions. Social distancing among the general population is a distinct public health strategy and—as a growing number of recent court decisions have failed to acknowledge—it is authorized by distinct legal authorities. The bad news is that because some degree of movement must be permitted, social distancing alone cannot achieve complete containment of the virus. The good news is that 100% compliance is neither expected nor necessary for social distancing to work as a mitigation strategy. Slowing the spread of infection through social distancing requires a substantial overall reduction in non-household contacts compared to baseline. It does not require perfection.
The statutory provisions state and local officials point to as authorizing (and establishing guardrails for) mandatory orders to increase social distancing among the general population were not drafted in specific terms. Coronavirus emergency orders prohibiting all non-essential, on-site business operations and ordering people to stay at home except for essential work and errands rely on broad authorities that vary from state to state. Wisconsin’s secretary of health and human services is authorized to “implement all emergency measures necessary to control communicable diseases,” for example, while Pennsylvania’s governor is authorized to control “the movement of persons,” and “occupancy of premises” within a declared disaster area.
In the early weeks of the coronavirus pandemic, state and local officials exercised broad discretion available to them under state statutes and local ordinances to make a multitude of minutely detailed decisions in a situation with many unknowns and no clear precedent. Exceptions were, to some extent, rooted in an understanding about which activities cannot be prohibited without causing a loss of life or limb. Some states, such as Pennsylvania, defined exemptions in terms of “life-sustaining” functions, but that description didn’t match the reality of a list that included dry cleaners, general merchandise stores, and steel mills.
Legal challenges to mandatory social distancing were inevitable. The claims raised by plaintiffs challenging coronavirus orders on religious liberty and other grounds have varied, but they share common themes. Some have criticized the seemingly arbitrary nature of what’s permitted and what’s prohibited. Some have characterized prohibitions on church services while shoppers are permitted to “gather” in essential shops as discriminating on the basis of religion. Some have argued that the broad discretion state officials have employed to delineate restrictions and exceptions can only be exercised by the legislative branch.
The outcome of some recent court decisions in favor of the plaintiffs may be partially explained by the fact that many cases are now being decided shortly before the date on which officials have said they will lift the challenged restrictions. Courts may be more comfortable granting less deference to the executive branch when the defending official has already announced that the challenged restriction will soon be unnecessary. Moreover, as the long duration of this crisis becomes clear, a growing number of courts are ruling that the time has come for state legislatures to weigh in.
Whatever the explanation for their outcome, judicial decisions on emergency orders provide useful guidance to elected officials and legislators.
Court rulings equip executive officials with guidance to draft more carefully tailored orders for the next flare-up. For example, orders defining prohibited “gatherings” in more specific terms, tailored based on the best available evidence about how the virus spreads, would be less likely to trigger adverse court rulings than orders explicitly prohibiting faith-based gatherings. Gatherings should not be defined by how many people are present in a facility in a snapshot moment. Rather, the highest risk of substantial transmission appears to be close contact in a confined space for a sustained period of time. This is why religious services in which congregants spend an hour or more together in an enclosed space present greater risk than shopping at a store, where customers pass through the space transiently.
Court rulings will also guide the eventual efforts of legislatures to reform statutes governing the emergency and infectious disease control powers delegated to executive-branch officials. Infectious disease control and public health emergency statutes are largely focused on containment measures, such as isolation of the infected and quarantine of those reasonably believed to have been exposed. Social distancing strategies have received far less attention from state lawmakers, though some have included authorities to forbid “public gatherings in schools, houses of worship, and other places,” consistent with pre-pandemic plans. Widespread, long-term orders to shelter in place really were not given much consideration in pre-pandemic plans, so it’s no surprise state statutes don’t specifically address them. That was a mistake. If long-term orders to shelter in place are a public health necessity under at least some circumstances, then state laws should be reformed to set forth the conditions under which they are authorized and the safeguards applicable to their use, similar to the laws governing quarantine and isolation of individuals.
These reform efforts—whether they manifest in new emergency orders issued in response to a flare-up next week or new statutes adopted between this pandemic and the next one—should take the value many Americans place on religious association into account. The value of religious association should be balanced against the public health needs of the broader communities in which religious worshipers and institutions are embedded. Faith-based organizations should also prioritize the safety of their employees and congregants. Health officials should work with faith-based organizations to promote safer alternatives to crowded in-person services. Some degree of risky behavior is likely to occur even if it is prohibited by law. Reducing the harm from that behavior—rather than pursuing an abstinence-only strategy—should be a public health priority. Social distancing does not require perfection, but it does require widespread and willing compliance. Maintaining the public’s trust and cooperation over the long duration of a pandemic requires clear communication regarding the rationale behind restrictions and recommendations that meet people where they are.