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Abstract
AbstractEmergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.
Highlights
In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus
This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances
Courts in the United States are reviewing an unprecedented number of legal claims contending that emergency executive orders issued by state governors during the coronavirus pandemic violate constitutionally protected rights
Summary
Every country has tried to slow the spread of the SARS-CoV-2 virus. In the United States, control measures included recommendations to wear masks, keep two meters distance from others, and mandatory limits on public gatherings. By April 2020, all fifty states and the District of Columbia had declared a state of emergency, which authorized their governors to issue executive orders.8 Such orders included extending the deadline for receipt of mailed ballots for the November 3, 2020 election, limiting the number of people at public gatherings, in retail businesses, in airlines, trains, buses, worship services, and complete closures of schools, art, entertainment venues, and certain businesses and medical services.. Such orders included extending the deadline for receipt of mailed ballots for the November 3, 2020 election, limiting the number of people at public gatherings, in retail businesses, in airlines, trains, buses, worship services, and complete closures of schools, art, entertainment venues, and certain businesses and medical services.9 They recommended that people stay at home, wear masks, and practice social distancing in public. Subsequent waves of increased coronavirus infections, persuaded some governors to continue or reimpose restrictions
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