On this week’s episode of Amicus, Dahlia Lithwick was joined by professor Michele Goodwin, who is the director of the Center for Biotechnology and Global Health Policy at the University of California Irvine School of Law, to discuss how the government must weigh public health versus civil liberties in response to the coronavirus—and how to avoid the pitfalls of past racist and rights-trampling policies. Read a portion of their conversation, which has been edited and condensed for clarity, below.
Dahlia Lithwick: How do we think about the tension between these very American ideas of freedom—the ability to walk and to speak and to move and to assemble—against the backdrop of the measures we’re seeing put into place to control the pandemic?
Michele Goodwin: If we’re to understand the history of the parens patriae authority that the state has, we could look back to 1905 and the Supreme Court’s ruling in Jacobson v. Massachusetts. It’s a case where an individual refused to be vaccinated in his local community, and the case goes to the Supreme Court. The Supreme Court, in ruling against this individual, said that it is within the state’s authority to protect the health and safety of the community. And this further undergirds the state’s authority with regard to protecting health and safety and imposing certain conditions on individuals in order to do so.
Now, what’s interesting is that the court uses that same type of logic in a case that doesn’t deal with the public health, although the court claims that it does, and that’s in Buck v. Bell in 1927. It’s a case that involves a poor white girl who had been raped; she becomes pregnant. And in the state of Virginia, they had enacted a law that provided for compulsory sterilization of people who were considered to be socially morally unfit. The Supreme Court sanctions this in a horrific ruling that ushers in eugenics into the United States, which ultimately affects tens of thousands of people being sterilized against their will—children as young as 10. It eventually becomes racialized and known as the “Mississippi appendectomy.” That is a doctor’s lying to parents of kids in Mississippi and in Georgia and other places saying they just need an appendectomy and basically sterilizing little black girls.
What we see in that is the public health being used as a proxy for something that is nativist, xenophobic, racist, or discriminatory against individuals who have disabilities. The concern then is how not to fall prey to nativist types of concerns? We saw this with Kaci Hickox in Maine after she came back from working with Doctors Without Borders and helping individuals during the Ebola epidemic. She had not tested positive for Ebola, but the governor of Maine thought, “Well, she should be quarantined anyway.” Fortunately, a district court disagreed and sought an empirical record. Of a person that does not test positive, you cannot just simply limit that person’s civil liberties, which denies them the opportunity to be able to work, socialize with others, etc.
So in these times, while we want to be careful and be preventive and proactive, we also want to be mindful of real empirics—health and science data. And in this particular instance, we have lost opportunities. For example, we rejected tests that we could have had in the United States that would have been provided through U.N. agencies. We said, “Well, we will create our own.” We saw that there were tests that were done in the state of Washington, but the test were not reviewed at all and so they expired. We’re still not doing tests. So what we haven’t had is the type of coordination from the federal government that we could have had to be more proactive to calm concerns and then to set pathways forward.
What we also see is that there are institutions that are taking these matters now into their own hands until there is more coherence coming from federal and state level. We see that with universities, for example, that have now gone to remote classrooms. In the wake of this, we have to think about vulnerable individuals. On college campuses, they’re now shutting dorms. Well, that might work for people who actually have families and homes to go to. But for students who are indigent, for those who’ve come from abusive family backgrounds, for those who happen to be immigrants, this is their home. There are civil liberties concerns that we must be mindful about.
Lithwick: It reminds me a little bit of the war on terror cases after 9/11. You have to act quickly. That was the theory after 9/11. And somehow it feels as though that is again in direct conflict with how we think about judicial process, building a record, and civil liberties. I feel we’re right back in that box where the things that need to be done are going to be massively overinclusive and massively encroaching on civil liberties.
Goodwin: That’s absolutely right. And to be clear, those who end up suffering the infringement on their civil liberties often are the people who are most vulnerable in a society. There will be stereotypes about the people who will be the carriers of disease. And often we will get that wrong. Historically we have. The idea that disease follows class and that it follows race is part of a racist type of ideology. One troubling aspect of this is that there are meetings happening behind closed doors. We don’t see a coherent action plan coming from the federal government. That mishmash further undermines the confidence then that individuals would have. Right now, between states, there are different protocols in terms of how to handle something that might be a health crisis such as this. There isn’t necessarily coherence in terms of states laws. There isn’t any coherence vis-à-vis state and federal law in this domain.
Lithwick: I was going to ask what rights do you have if you are in a quarantine, but the fact is it’s just a patchwork. It’s a state-by-state, minute-to-minute shifting patchwork.
Goodwin: That’s absolutely right. And I couldn’t emphasize any more the importance of empirics. We need testing. We need for individuals to be tested, and our civil liberties don’t just simply go away because there is a virus that is afoot that might affect many people. You don’t lose your civil liberties simply because there is something in the air. You don’t lose your civil liberties simply because you become sick. It’s important to understand the primacy of due process. Yes, we do want to protect health and safety. And in times in which the state does do that, there are times in which our civil liberties are mediated against that, but there should never be a wholesale removal or the trampling of an individual’s or whole communities’ civil liberties because we are struggling with a health concern or even a health crisis. But we need good information. And the only way that we get that good information is by doing the work and engaging in science and engaging with those who truly do understand these types of issues.