OPINION

COVID-19 and the About-Face of Legal Elites.

Law professors and left-leaning lawyers argue for strict lockdowns and quarantines during COVID-19, but those same lawyers didn't always make pro-lockdown arguments.

American legal elites have performed an about-face in their views on quarantine law. Before 2020, a large number of law journal articles argued that quarantine and lockdown unconstitutionally restricted personal liberty and were not effective at preventing the spread of disease. But, after governments began imposing quarantine and lockdown during COVID-19, the authors of these same articles began supporting the very restrictions they had once regarded as unconstitutional and ineffective.

‘Quarantine is rarely an effective public health strategy, and no evidence exists that it has proven effective in reducing morbidity and mortality in the U.S. in the last half-century,’ — Professor Wendy Parmet, Northeastern Law School, 2018.

For example, one of the most prolific scholars on quarantine law is Professor Wendy Parmet of Northeastern Law School. Parmet has been publishing on quarantine law since near the beginning of her career in the early 1980s. Before March 2020, Parmet was critical of strict quarantine measures, warning that quarantines undermined freedom. In 2018, Parmet wrote that the law of quarantine itself had been “quarantined” from the Constitution because quarantine laws did not sufficiently protect constitutional rights. Parmet wrote that quarantines “run counter to the high regard that Americans place on autonomy … quarantine is rarely an effective public health strategy, and no evidence exists that it has proven effective in reducing morbidity and mortality in the U.S. in the last half-century.”

In 2009, Parmet criticized what she called the “dangerous-patient perspective,” where society stigmatizes certain infected individuals as “dangerous” and views these individuals as the cause of disease transmission. This perspective, Parmet argued, leads society to use quarantine to unduly violate individual rights “while neglecting broadly based epidemics and the conditions that foster them.” As recently as February 2020, Parmet wrote, “We should be wary of an aggressive government response to coronavirus,” and “harsh measures tend to scapegoat already marginalized populations.”

But, Parmet, like many of her left-leaning colleagues, has changed her tune. In May 2020, Parmet wrote an article entitled “Rethinking Freedom,” in which she argued for increased restrictions due to COVID-19. Parmet stated:

“The intrusion of stay-at-home orders have quickly been seen as a violation of these rights and an affront to the Constitution. Liberty is more complex than this simplistic conception. … when the history of the pandemic is written, our one-sided view of liberty and the devaluation of public health that followed from it may well claim a starring role in the neglect that exacerbated the pandemic’s impact in the U.S.”

In a June 2020 interview with Georgetown University Press, after the Wisconsin Supreme Court declared the state’s lockdown unconstitutional, Parmet criticized the Supreme Court justices who considered Wisconsin’s health restrictions to be a fundamental violation of liberty. On November 29th, 2020, after the U.S. Supreme Court ruled New York’s restrictions on religious gatherings unconstitutional, Parmet tweeted, “SCOTUS will still be undermining public health law tomorrow.”

Lockdowns, empty streets.

Lockdowns, empty streets.

Another widely published author on quarantine law is Wendy Mariner. Mariner is a professor of law and public health at Boston University and was once the American Bar Association’s Section Representative to the Uniform Law Commission Study Committee on Declarations of Quarantine. In that capacity, Mariner’s role was to help draft recommendations for state legislatures in enacting quarantine laws. At the time, Mariner warned that  “We should be careful about declaring emergencies, because emergencies permit exceptions to the rules. If the risk of an emergency continues indefinitely, then the exceptions become the rule, and the rule of law itself is compromised.”

In a 2009 article, Mariner, along with Parmet and colleague George Annas, argued that during a pandemic, the government should trust people to voluntarily isolate themselves and take other action to protect themselves and others from disease. They asserted that forced quarantines engender distrust and violate personal liberty:

“The public’s health is best protected when government treats people like clients rather than enemies of public health. People do not want to get sick, and they do not want to make other people sick. Given accurate information and the means to protect themselves from disease, almost everyone will take appropriate precautions. To be sure, there will always be a few who are unable or unwilling to control their behavior, but these are the exceptions to the rule. … Measures like quarantine, surveillance, and behavior control have historically been targeted at people who are already disadvantaged, those on the margins of society, especially immigrants, the poor, and people of color.”

In 2018, Mariner and another colleague, Michael Ulrich, wrote, “There may be a few instances in which involuntary quarantine of an individual with a quarantinable disease is necessary, but these are remarkably rare cases … in practice, quarantining a population has never stopped an epidemic.” In February 2020, Mariner wrote an article for StatNews entitled, “Quarantine for coronavirus? Let’s make that unnecessary.” In this article, Mariner proposed:

“Before resorting to the draconian measure of involuntary quarantine, I think we should make it unnecessary. …Threats of involuntary quarantine … look a lot like blaming the victim: punishing people for getting sick or treating people like criminals, not patients. That makes the target of disease-control efforts a person— instead of a pathogen.

But when individuals are viewed as potential threats to public health, they may feel unfairly attacked and stigmatized. And if people doubt what the government says, they may decline to follow even sensible recommendations.”

Since then, though, Mariner, too, has shifted her position. She has frequently tweeted about the government’s response to the pandemic, but, after April, she has not posted any comments critical of the quarantines or lockdowns.

On May 16th, 2020, Mariner retweeted Andy Slavitt’s tweet, “Big Businesses, Trump & Mitch McConnell want to open the country badly, but they want no risk if it goes wrong. You should be suspicious.”

On May 17th, 2020, in response to the Wisconsin Supreme Court’s decision to halt the lockdown, Mariner retweeted Slate’s tweet: “The conservative majority’s nasty rhetoric and callous indifference toward human life is, increasingly, a hallmark of conservative jurisprudence.”

On October 18th, 2020, Mariner liked Daniel Goldberg’s tweet that read, “I am absolutely, 100% an expert on this: IF YOUR PUBLIC HEALTH “INTERVENTION” DEPENDS ON A BUNCH OF INDIVIDUALS BEHAVING THE WAY YOU WANT THEM TO, IT IS EXTREMELY UNLIKELY TO WORK. EX. TREME. LY.”

Mariner’s recent Twitter activity directly contradicts her earlier comments that the government should trust individuals to voluntarily protect the public’s health.

Disposable face mask.

Disposable face mask.

Before 2020, the American Civil Liberties Union (ACLU) was one of the most vocal opponents of government-imposed quarantines. In 2015, the ACLU and the Yale Global Health Justice Partnership published a report entitled, “Fear, Politics, and Ebola: How Quarantines Hurt the Fight Against Ebola and Violate the Constitution,” in which they argued that American officials abused quarantine laws during the Ebola crisis, and recounted how the ACLU filed numerous lawsuits to challenge these quarantines. The authors recommend that states and the federal government amend quarantine laws to give stronger protection to individual rights. The authors wrote that states should:

“Employ the least restrictive alternatives available to stem transmission of infection. Public health authorities have a wide array of tools available to control disease transmission short of quarantine. … Given the serious liberty interests at stake whenever a government authority imposes movement restrictions or quarantine, it must provide robust procedural protections to enable individuals to contest those restrictions.”

Predictably, the ACLU does not take this position any longer. In a “COVID response report,” posted on its website, the ACLU noted that it had filed over 145 COVID-related legal actions. In these lawsuits, the ACLU advocated for various policies, including expanding the right to vote by mail, releasing inmates from prison, and Immigration and Customs Enforcement’s releasing detained individuals who are at risk of disease.

The ACLU did not, however, generally contest the lockdowns. Its only challenge to the lockdowns was when the ACLU argued for access to abortion clinics. The ACLU reported, “We and our state affiliates have sued in seven states to fight back against politicians cutting off access to abortion during the crisis.” In its COVID response report, the ACLU made no other arguments against quarantine or lockdown.

Large wooden gavel.

Large wooden gavel.

Before March 2020, Parmet, Mariner, and the ACLU showed deep skepticism of mandatory quarantine and lockdown. Why the sudden shift in the elite sectors of the legal profession? Why haven’t law schools and major law firms challenged the quarantines and lockdowns the way they provided pro bono representation to enemy combatants and detainees at Guantanamo? Has the recent crisis caused attorneys and law professors to sincerely change their views? Or are they afraid to espouse positions they once held when these positions are now classified as conservative?

It is doubtful that, if former President Trump and other conservatives had supported aggressive quarantine and lockdown measures, these scholars would have re-examined their beliefs and said, ‘We were wrong, and Trump is right.’

It is doubtful that, if former President Trump and other conservatives had supported aggressive quarantine and lockdown measures, these scholars would have re-examined their beliefs…

In fact, in many of the articles referenced above, the authors discussed how, during the Ebola crisis, governors, who desired to prove themselves “tough” on Ebola, unjustifiably quarantined people who had returned from Africa. The authors believed that these governors imposed quarantines for political reasons rather than to protect public health; they further believed that politicians influenced the CDC for political purposes. Mariner observed:

“Indeed, the CDC already made what appeared to be politically motivated policy decisions while under political fire. … the hysteria, politicization, and rejection of evidenced-based legal decisions created more harm than the disease itself. … With public fear of Ebola steadily increasing, many public officials let their political interests drive their actions. Governors who were up for reelection in states like New Jersey and Connecticut decided to issue strict quarantine orders.”

Back in 2015, the ACLU recounted: “The Ebola quarantines and other movement restrictions put in place throughout the nation beginning in late 2014 were motivated by fear and by politics, not by medical science. … In many … states, incumbent governors facing reelection implemented the restrictive policies, increasing suspicion that they were politically motivated.”

When Democratic governors are the ones to impose strict lockdown measures, however, to demonstrate their opposition to President Trump, these same authors don’t seem to mind. In shifting their views, the quarantine lawyers and legal scholars have done a great disservice to our nation. When the scholarly community censors itself in the face of deprivations of liberty, the scholarly community is complicit in tyranny.

Written By:

Kyle Persaud (@LawPersaud) is a lawyer in private practice in Bartlesville, Oklahoma. He practices primarily in civil, family, and probate law. He blogs at www.persaudlawoffice.com.