The coronavirus pandemic, like any extreme crisis, is forcing tough choices between the competing values of safety and liberty. Already, the pandemic has presented challenges in four main areas, says David Cole, National Legal Director of the ACLU: voting rights, prisoner rights, disability rights and—somewhat unexpectedly—abortion rights.
The voting rights issue couldn't be more basic, says Cole: "How do you keep democracy going?" More specifically, how do you adapt the entire American voting infrastructure to pandemic conditions—and do it almost overnight.
It's not just about the primaries, though 15 states have already had to postpone theirs, mostly until June. It's about the general election on November 3, too, since even if the pandemic recedes in the months ahead, voters' fears may persist—and Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has warned of a possible "COVID-19 second-wave" in the fall.
Then there is an entirely separate category— essentially, the right to life for medically vulnerable inmates in prisons, jails, and immigration detention facilities. These issues might be the most urgent, since inmates' lives are at stake. Their institutions are "tinderboxes" of contagion, medical experts have warned, and prisoners are unable to follow any of the most basic social-distancing or hand-washing practices that the U.S. Centers for Disease Control and Prevention has recommended to ward off infection.
As of April 3, 273 inmates at New York City's jails had tested positive for COVID-19, an increase of 42 from the day before, according to the city's Department of Correction. (The staff was doing little better, with 239 confirmed cases among guards and non-uniformed personnel.) The infection rate among inmates was 70 times the national average for the general American population, and 9 times the average for New York City—currently the nation's worst-afflicted hot spot. At least one corrections officer has died.
Next are the rights of disabled people, whose lives may soon be on the line as well. Their concerns relate to the impossible ethical dilemmas that the nation's doctors will face if they are forced to ration scarce ventilators. Should people with severe mental deficits, developmental disorders or neurological diseases like ALS and MS be excluded? Some states' guidelines for ventilator rationing call for doing just that, though rights advocates say that that would break federal anti-discrimination laws.
Finally, there is the issue of abortion rights, which has rushed to the fore as at least seven states, since mid-March, have issued emergency orders banning abortions during the pandemic, ostensibly to conserve hospital resources and personal protective equipment, known as PPE.
Reproductive rights groups have obtained temporary restraining orders halting implementation of these decrees in Texas, Ohio and Alabama, but a federal appeals panel in New Orleans, by a 2-1 vote, temporarily reinstated Texas' last week. These cases, and a similar suit in Oklahoma, are quickly climbing the appellate ladders and may be headed for a hugely controversial resolution in the U.S. Supreme Court.
As varied and grave as the civil liberties issues are that have been posed by the COVID-19 crisis, they are qualitatively different from those posed in the past after attacks by human enemies.
"After 9/11, we saw many Muslims being rounded up without charges and being held in brutal conditions," says Cole. "Here, there's no obvious scapegoat to target.
"There is always a risk that in times of fear, government will overreach," he continues. "But I take some solace in the fact that the threat here can't be isolated in any particular subset of our society. Government measures have to be broad-based. We're all in this together."
Here are the rights battles currently being fought:
Voting Rights
Voting is a "fundamental" right because it's "preservative of all rights," the Supreme Court declared 134 years ago. Yet coronavirus is now testing the nation's ability to afford its citizens that basic right.
"The way that most people vote in this country—in person on election day—has been significantly disrupted," says Dale Ho, director of the ACLU's Voting Rights Project. "More people are going to either need, or want to, vote by mail in November than ever before in any American election."
It's not just voters who are afraid to go to the polls this year, but poll workers, too. Their average age is over 60, Ho notes, placing them within one of the COVID-19 high-risk groups. Less than 10 days before Wisconsin's scheduled April 7 primary, the director of the Milwaukee Election Commission said he'd rounded up only 400 of the 1,400 workers needed. (A federal judge declined to block that primary from going forward, but ordered changes in state election rules to allow greater availability of absentee ballots.)
Making the large-scale transition to mail-in ballots will require a "significant public works project," says Wendy Weiser, and an extremely "time-sensitive one." Weiser directs the Democracy Program at the Brennan Center for Justice. Congress allocated $400 million to this effort in its recent stimulus package, she notes, but she believes about $2 billion is needed.
The obstacles are daunting. Currently, 17 states do not permit universal voting by mail, says Ho, requiring voters to show they are qualified under an enumerated exception. Ten states don't offer online voter registration, according to Weiser, and most that do, limit such access to those with drivers' licenses or car registrations.
The states that already permit voting by mail still require voters to overcome other obstacles. They may need to request a ballot—it's not just automatically sent to them—and there are requirements about by when, and how, they must make the request. There are still more requirements governing how to return the ballots. (South Carolina and Wisconsin require witness signatures, for instance, though a Wisconsin federal judge just lifted that requirement for Tuesday's primary.) Many Native Americans live far from postal pickups, presenting special challenges. Some states require that, to be counted, ballots must be received by election day, allowing disenfranchisement through postal delivery delays.
"At every level of this chain," says Weiser, "there's an opportunity for either shenanigans or for there to be people left out."
Beyond the rules changes needed, there are expensive logistical hurdles. States will need far more ballots than ever before, and new equipment and personnel to process them. (Absentee ballot requests for this year's Wisconsin primary have been quadruple what they were four years ago, according to Weiser.)
At the same time, at least some in-person polls must remain open for those who need them, both Ho and Weiser argue. Many disabled voters—the blind, for instance—need specially designed machines available there. Many voters are also accustomed to registering to vote in-person at the polls on election day, in states where that is permitted. They may not be eligible to use mail-in ballots.
Swiftly retrofitting our electoral system is made still more difficult by the fact that it is so federated. The rules are set by state law, and most states further delegate decisions to counties and cities, creating a patchwork of about 8,000 election districts nationwide.
Congress has the power to override local rules in federal elections, but so far hasn't done so. In recent negotiations over the coronavirus stimulus package, the House proposed mandating that states make voting by mail universally available, but those efforts were defeated. In a call to Fox News' "Fox & Friends" television program, President Trump said, "The things they had in there were crazy. They had things—levels of voting that, if you ever agreed to it, you'd never have another Republican elected in this country again."
Despite some displays of partisanship, elections administrators have been "mostly cooperative across the ideological spectrum," says Ho. Republican secretaries of state in Georgia and West Virginia have taken steps to facilitate widespread balloting by mail, he says, while Alabama's has declared that anyone "concerned about contracting or spreading an illness" will be deemed qualified to vote by absentee ballot.
"It's been really positive," says Ho. "My hope is that that will continue."
Detainee Rights
"Unfortunately, prisons and jails are really the ideal environment for rapid spread and maximum casualties from the virus that causes COVID-19," says David Fathi, director of the ACLU's national prison project. "Prisoners are sitting ducks, powerless to do anything but wait for the virus to rip through their facilities."
There are about 2.2 million inmates in America's jails and prisons, and about 38,000 more in our immigration detention facilities. As of April 5, the federal Bureau of Prisons (which houses about 175,000 inmates) reported 138 inmates and 59 staff with COVID-19. Among facilities run by the U.S. Immigration and Customs Enforcement (ICE) agency, 13 detainees and seven staff had the disease, according to the agency.
Many inmates live in crowded dormitories with common toilets and showers, and there are sometimes shortages of basic cleaning supplies. Alcohol-based hand-sanitizers, like Purell, are frequently outlawed as contraband. (Inmates have figured out how to separate out the alcohol.)
It's not just the inmates who are in danger.
"There's nothing like an outbreak of a deadly contagious disease to remind us that we're all in this together," says Fathi. "The virus doesn't respect differences between prisoners and staff. Outbreaks in prison will, we are 100 percent certain, be transmitted to staff and others who leave the prison every day."
In response to the crisis, hundreds of medically at-risk, low-level offenders are being released voluntarily. In New Jersey, the state attorney general, the county prosecutors association, the public defender's office and the ACLU of New Jersey all agreed to an order, signed by the state's supreme court on March 22, to temporarily release up to 1,000 inmates from county jails. Similarly, Sacramento County authorities agreed to release 421 jail inmates; New York City Mayor Bill De Blasio announced the discharge of 300 from city jails; and the Los Angeles Sheriff's Office has cut its jail population by more than 600, through a combination of early releases and fewer arrests.
Last week, Attorney General Bill Barr urged the director of the federal Bureau of Prisons to prioritize the early release of prisoners at high medical risk to home confinement, especially in Connecticut, Louisiana and Ohio. Institutions in those states have the most confirmed COVID-19 cases so far, according to the New York Times, with five inmates having died of the virus in Louisiana and two in Ohio.
Where authorities have been less cooperative, lawsuits are being brought. The Legal Aid Society of New York City won the release of 106 inmates from Rikers Island in late March and is pressing three additional suits on behalf of about 250 more.
The federal detention facilities, run by the Immigration and Customs Enforcement (ICE), are also being sued. Since mid-March, the ACLU's Immigrants' Rights Project, often joined by other rights groups, has filed about a dozen cases seeking to release small groups of specific detainees housed at ICE facilities scattered across the country. It has won court orders releasing 16 people, and the government voluntarily released eleven more after suits were filed.
At the same time, two suits are seeking class action relief for at-risk detainees. Both of these were filed prior to the pandemic—alleging overcrowding and other unconstitutional conditions—but lawyers bringing them have recently filed emergency motions triggered by the outbreak. One suit, led by the Southern Poverty Law Center in Montgomery, Alabama, seeks the paroling of endangered inmates at all ICE facilities nationwide. The other, brought by the Prison Law Office in Berkeley, California, asks for similar relief for medically vulnerable inmates in the California prison system. (In California, the suit alleges, about 46,000 inmates live in dormitories, and almost 13,500 of them live in dorms that are at, or over, 175 percent design capacity.)
Disability Rights
"When people are choosing who gets to live and who dies, that's really fertile ground for putting people with disabilities in the latter category," says Susan Mizner, who leads the ACLU's Disability Rights Project. "You cannot decide that you're not going to treat someone because they have a severe intellectual disability or because you can't imagine their quality of life is worth living."
In March, disability rights advocates challenged the medical rationing and triage guidelines of Alabama, Kansas, Tennessee and Washington State—alleging that they violate federal laws prohibiting discrimination on the basis of disabilities. The complaints were filed with the Office of Civil Rights of the Department of Health and Human Services by lawyers and groups acting within the Protection and Advocacy System, a federally funded program set up in 1975 to protect the rights of the severely disabled.
In Alabama, for instance, the guidelines would bar providing ventilators to patients (including children) with "severe or profound mental retardation" and "moderate to severe dementia." In Tennessee, patients would be "excluded from admission or transfer to critical care" if they have "advanced untreatable neuromuscular disease" including ALS, end-stage MS, and spinal muscular atrophy.
Some disabled people who already use ventilators in their daily lives fear having those ventilators taken away from them, should they need to enter a hospital for any reason. This issue was raised in a protest to Kansas' rationing guidelines recently filed by lawyers with the Disability Rights Center of Kansas.
"Regular users of ventilators are afraid to seek medical help when they become ill," the lawyers wrote, "because ventilator rationing may result in their everyday ventilators being re-allocated to other patients who are deemed a higher priority. Such forcible extubation would likely result in their deaths."
On March 28, the HHS's civil rights office issued a general bulletin, apparently in response to these various complaints, reminding states that federal anti-discrimination laws protecting the disabled "remain in effect."
In recent days, some states, including Alabama, appear to have taken down their previously posted rationing guidelines.
At the same time, one paragraph in the HHS bulletin itself raised some hackles within the disability rights community. The bulletin suggested that an emergency law that Secretary Alex Azar invoked in February, due to the COVID-19 crisis, may provide state officials and hospitals with "immunity from certain liability" stemming from private lawsuits alleging violation of "civil rights laws," including anti-discrimination provisions protecting the disabled. The emergency law in question—the Public Readiness and Emergency Preparedness Act of 2005, known as the "PREP Act"—provides immunity from tort liability to companies and health care professionals fighting a public health crisis.
"We disagree with that interpretation," Mizner says of the bulletin's language.
Disability advocates recognize that rationing may become necessary and they do not claim that it is illegal per se.
"There are many different models of rationing," says Mizner. "One can do 'first-come, first served.' You can have a lottery model. You can have a life-stage model, which prefers people who have not yet made it to adulthood, or middle-age, or senior status. You can have a trial model, where you give people treatment and check in at set times—after 48 hours, 120 hours, say. Those that are progressing, you keep on the treatment. Those that are deteriorating, or just dying more slowly than before, you take off.
"It's not our role to tell states which model to use. It's our role to tell states that whichever model they use cannot be implemented in a way that's discriminatory. The problem is in not giving the person an opportunity to have any access, and just screening them out from the beginning because of the perception—'No, it's just too much of our resources.'"
Abortion
While a great many states have banned "nonessential" surgery during the crisis—in order to conserve hospital resources and personal protective equipment—at least eight states have deemed abortions to be "nonessential," thereby banning them.
Texas was the first state to do so, with Alabama, Kentucky, Indiana, Ohio, Oklahoma and Mississippi since following suit.
Gov. Greg Abbott issued Texas' executive order on March 22. Physicians violating the order face $1,000 fines, up to 180 days in jail and possible disciplinary action by licensing authorities.
Texas' emergency decree will "save countless lives," wrote the state's attorney general, Ken Paxton, in a brief in federal district court in Austin earlier this week, "by preventing further spread of the disease by unnecessary contact and ensuring the conservation of personal protective equipment ('PPE') and hospital capacity necessary to protect the healthcare professionals who will save Texans from this disease."
He argued that the abortion rights advocates challenging the decree were improperly seeking "a special exemption, claiming a right to deplete or endanger precious PPE resources and hospital capacity in the name of providing abortions."
A group of 16 states, led by Louisiana, are supporting Texas' position in an amicus brief, claiming that any challenge to these emergency decrees "poses a grave threat to state authority to protect public health."
Those challenging the order, led by Planned Parenthood Federation of America, argue that abortions are medically essential, constitutionally protected, not ordinarily performed in hospitals, and require modest use of PPE (or none, in the case of medication-induced abortions).
"How heartless do you have to be to, in a time of crisis, take extraordinary measures to take away people's health care?" said Alexis McGill Johnson, the CEO of Planned Parenthood, in a statement. "Abortion is essential health care, and it is urgent and time-sensitive."
"You can't hit 'pause' on a pregnancy," said Jennifer Dalven, the head of the ACLU's Reproductive Freedom Project. Dalven's group is involved in the similar cases pending in Alabama and Ohio. "Pregnant people need care, whether that's the abortion they've decided is best for themselves and their families or whether it's prenatal and childbirth delivery services. So you're not saving any resources. All you're doing is forcing people to have children against their will."
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Correction 4/17/20, 3:16 p.m. ET: This article has corrected the spelling of Governor Greg Abbott's name. We regret the error.
