Camping in Scarborough, Maine. Gathering for church in Chincoteague, Virginia. Or just grabbing a burger at Poopy’s Pub and Grub in Savanna, Illinois.
Each of these activities became the subject of a federal lawsuit, as residents, businesses and even lawmakers challenged state shutdown orders designed to prevent the spread of novel coronavirus.
The cases test where the lines are safely drawn, as governors balance protecting public health against individual liberties. Governors say strict rules save lives, but critics who are forced to stay home or shutter their businesses called the steps “draconian” or compared them to “house arrest.” The lawsuits come as President Donald Trump has become increasingly vocal in criticism of state restrictions, encouraged protests at state capitols and urged churches to reopen despite restrictions.
More than 1,300 state and federal lawsuits have been filed over COVID-19, including 240 dealing with civil rights, as of Friday, according to Hunton Andrews Kurth, a law firm tracking the cases. USA TODAY reviewed more than 80 lawsuits that often dealt with conditions at prisons and nursing homes, voting rights, and university tuition. USA TODAY focused on legal challenges to restrictions such as stay-at-home orders and business closures, and also whether abortion or church services can be limited during the pandemic, to gauge which orders were being challenged and how states were responding.
The eventual rulings could redefine the balance between state police powers and constitutional rights that advocates contend are too important to sacrifice even temporarily. Abortions are time sensitive. Buyers want guns during times of crisis. And parishioners seek solace at church. Other lawsuits test whether rules go beyond legislative authorities by requiring people to isolate themselves, stay apart in public and wear masks.
“I tend to think there will be some new law made only because there are new scenarios that courts haven’t encountered before,” said Polly Price, a law professor at Emory University. “What they’re balancing is the scientific basis for a particular measure and the state’s need for it, in the face of uncertainty, to protect the public health.”
But Ilya Somin, a law professor at George Mason University, expected only minor changes in the scope of police powers because even if gun shops and churches win their lawsuits, their activities cover a small fraction of the overall shutdown.
“The scope of this kind of shutdown is unprecedented in American history and maybe even unprecedented in the history of liberal democracies generally,” Somin said. “The overall impact of these cases on the police power, even if the plaintiffs ultimately succeed, is pretty small.”
Edward Richards, a law professor at Louisiana State University who has a master’s degree in public health for disease control, said health restrictions have been held paramount since the threat of yellow fever hung over the Constitutional Convention. But he said businesses have always been skeptical and political leaders now openly question the legitimacy of health science.
“The legal picture doesn’t give us a real portrayal of the long-term ambivalent support toward public health,” Richards said. “We’ve never had the governmental authorities starting with the president actively undermining the public’s trust in public health, actively questioning whether the diseases are actually serious.”
Access to abortion amid the pandemic became a legal issue when some governors banned non-essential medical procedures, to preserve hospital space for COVID-19 patients. In Texas, a panel of the 5th U.S. Circuit Court of Appeals ruled that Gov. Greg Abbott’s March 22 order banning elective procedures covered abortion.
But two other appeals courts – panels of the 10th Circuit and the 6th Circuit – allowed abortions to continue despite state orders against elective procedures from Oklahoma Gov. Kevin Stitt and Tennessee Gov. Bill Lee.
“We do not uphold an injunction against state action lightly, much less during a public health crisis like the one our nation is experiencing now,” Judge Karen Nelson Moore wrote for the 6th Circuit, favoring flexibility for governors and legislatures to balance rights. “Affording flexibility, however, is not the same as abdicating responsibility, especially when well-established constitutional rights are at stake, as the right to abortion most assuredly is.”
Another side-effect of shutdown orders halted gun sales, either because governors deemed stores non-essential or because government services were suspended.
The Connecticut Citizens Defense League filed a federal lawsuit against Gov. Ned Lamont because fingerprinting for a personal background check that is required for gun permits was suspended.
State Attorney General William Tong said the lawsuit has no merit and he would defend Lamont’s order. A hearing is scheduled for June 1.
In Massachusetts, gun stores sued Gov. Charles Baker for ordering the shops closed as non-essential. U.S. District Judge Douglas Woodlock temporarily blocked Baker’s order May 9 so long as workers and customers wear face coverings and schedule appointments for sales, with no more than four per hour.
“The need for personal self-defense is most acute during times of uncertainty and crisis – when law enforcement services may not be available or may not be reliably available, and when (as now) criminal offenders may be released from custody or may be less likely to be taken into custody in the first place,” said the lawsuit from businesses Troy City Tactical, Shooting Supply and others.
Places of worship are one place people can gather during a pandemic that forced people apart. But the risks linger, like when 180 parishioners were exposed during a Mothers Day service in California. Many Georgia churches stayed closed as restrictions eased.
Kentucky has been a battleground. Two federal judges upheld Gov. Andy Beshear’s order against gatherings including church of more than 10 people. Kentucky Attorney General Daniel Cameron, a Republican, opposed Democrat Beshear’s order for church services in a court filing.
On May 2, a panel of the 6th U.S. Circuit Court of Appeals temporarily allowed drive-in services by loudspeaker at Maryville Baptist Church. A week later, the appeals court also allowed in-person services.
“There are some things you can’t do online that you can do in person,” said Mathew Staver, a lawyer representing the church, who said two state troopers walked car to car during the drive-in service handing out quarantine notices.
Other cases are pending. In Minnesota, churches joined non-essential businesses in suing to block Gov. Tim Walz’s orders. Walz created “a draconian shutdown that picks winners and losers, with devastating effects,” the lawsuit said.
“Worshippers across Minnesota have been prohibited from assembling to celebrate Easter and the Passover, while liquor stores have remained open,” said the lawsuit from Northland Baptist Church, Living Word Christian Center, Glow in One Mini Golf and Myron’s Cards and Gifts. “Target, Walmart, Walgreens and CVS are open, while local Hallmark stores are closed. Golf courses and bait shops are open, but indoor amusement facilities are shut.”
Walz spokesman Teddy Tschann said the governor’s actions were grounded in the need to protect the health and safety of Minnesotans.
U.S. District Judge Wilhelmina Wright scheduled a hearing in the case for Tuesday.
In Virginia, Pastor Kevin Wilson at Lighthouse Fellowship Church of Chincoteague received a citation after 16 people attended a Palm Sunday service and parishioners were threatened with citations if they returned for Easter. Gov. Ralph Northam barred gatherings of more than 10 people through June 10.
U.S. District Judge Arenda Wright Allen’s rejected a request from the church to block Northam’s order because it does “not refer to a religious practice to single it out for discriminatory treatment.”
Staver, a lawyer who is appealing the decision and representing the pastor in criminal court, said the church doesn’t have an internet option and caters to vulnerable parishioners with histories of prostitution or drug addiction.
“The church is their family, so they don’t have any other option,” Staver said.
Churches gained a powerful allies. Trump announced Friday that his administration would consider churches and synagogues essential and he told governors to reopen them for the Memorial Day weekend. The Justice Department had already warned states in letters not to discriminate against places of worship.
“The commonwealth of Virginia has offered no good reason for refusing to trust congregants who promise to use care in worship in the same way it trusts accountants, lawyers and others to do the same,” said Eric Dreiband, chief of the department’s civil rights division.
Dreiband has also warned California Gov. Gavin Newsom against discriminating against places of worship by resuming operations at schools, restaurants and offices first.
“Whichever level of restrictions you adopt, these civil rights protections mandate equal treatment of persons and activities of a secular and religious nature,” Dreiband’s letter said.
State lawmakers challenging governors
Dr. Irwin Redlener, co-director of the National Center for Disaster Preparedness at Columbia University, said the country needs leadership to explain why lifting shutdown orders would be dangerous before developing tools to ensure public health.
“Opening stores before we have ability to do on-site daily testing is just playing Russian roulette with our families,” said Redlener, a clinical professor of health management. “We don’t want to take a step or many steps backwards where economic or political interests can override the public’s health.”
Restrictions repeatedly pitted Democratic governors against Republican lawmakers, as officials grappled with how strict to make shutdown orders and how soon to relax them. In Wisconsin, the state Supreme Court overturned Gov. Tony Evers’ stay-at-home order under a lawsuit from the state legislature. Even after the order was lifted, many continued to stay home.
Under a 1905 U.S. Supreme Court decision, courts tend to side with public health restrictions so long as they are based on science and tailored to deal with the emergency. State courts have supported restrictions set by Michigan Gov. Gretchen Whitmer and Northam, whose restrictions sparked high-profile protests in Lansing and Raleigh.
In Maryland, U.S. District Judge Catherine Blake refused May 20 to overturn Gov. Larry Hogan’s orders for residents to stay home and close non-essential businesses, and for passengers on public transportation to wear masks. Hogan “made reasonable choices” informed by date and science, Blake wrote, while critics including state lawmakers, ministers and tourist destinations, minimized the risks of the pandemic with “no contrary scientific authority.”
The U.S. Supreme Court refused May 6 to hear a Pennsylvania case challenging Gov. Tom Wolf’s orders closing non-essential businesses. Price, the Emory professor, said the high court likely wouldn’t intervene in a business case because rules vary across the 50 states, but a ruling would apply nationwide.
“If they did that, it would be very hard to apply that in the other 49 states,” Price said.
Other cases are still pending. Illinois Rep. Darren Bailey, a Republican, argued in a state lawsuit that Democratic Gov. J.B. Pritzker’s shutdown orders violated his rights by quarantining him at home, and by preventing him from traveling and attending worship services. The lawsuit contends Pritzker’s orders are unauthorized because the state legislature set a 30-day limit for governors to exercise such emergency police powers.
But Pritzker moved the case Thursday to U.S. District Court because of the constitutional issues at stake. Bailey opposed the move. The U.S. Justice Department filed an argument Friday in the federal case urging the federal court to return the case to state court.
“However well-intentioned they may be, the executive orders appear to reach far beyond the scope of the 30-day emergency authority granted to the governor under Illinois law,” said Steven Weinhoeft, the U.S. Attorney for the Southern District of Illinois. “Even during times of crisis, executive actions undertaken in the name of public safety must be lawful.”
In Michigan, U.S. GOP Rep. Paul Mitchell challenged the governor’s orders for individuals to stay home and close businesses as unconstitutional – and not needed.
“Given that the projected surge has not occurred, there is no basis, either legally or factually, to continue any further mandatory lockdown orders under criminal penalty,” Mitchell’s lawsuit said. “In short, Mitchell brings this lawsuit to define the limits of a State’s police power.”
In Washington, four state lawmakers – Drew MacEwen, Andrew Barkis, Chris Corry and Brandon Vick – seek to block Gov. Jay Inslee’s restrictive orders.
“We can declare victory,” the lawsuit said of success in curbing the spread of virus. “While the governor says otherwise, the facts don’t lie, and the Constitution does not authorize him to maintain infringements on Constitutionally guaranteed civil liberties on his mere say-so, with no avenue of review or redress.”
John Farmer Jr., director of the Eagleton Institute of Politics at Rutgers University, said courts deferred to governors early in the pandemic under the threat that hospitals would become overwhelmed. But as the crisis wears on, even if courts overturn some restrictions as excessive, Farmer said governors and legislatures will debate the rules going forward.
“No court in the country would want to wind up micromanaging in response to a pandemic,” said Farmer, a former New Jersey attorney general and dean of Rutgers Law School. “They might strike something down as excessive, but all that will do is return it to the political process for governors and legislatures to figure out.”
State prosecutors charge price gouging
State officials are filing their own lawsuits and taking other enforcement actions. Iowa Attorney General Tom Miller sued an Orange City man in April for alleged price gouging for charging $86 for a 12-pack of Angel Soft toilet paper and $50 for a six-pack of Bounty paper towels.
North Carolina Attorney General Josh Stein won a temporary restraining order in May against Charlote’s A1 Towing Solutions and its owner, David Satterfield, to stop charging up to $4,400 after towing or booting vehicles.
New Jersey Attorney General Gurbir Grewal said his office has received more than 4,000 complaints about price gouging on necessities such as food, bottled water and masks, and has issued 975 cease-and-desist letters. He is also charging business owners and individuals criminally for violating shutdown orders.
Challenges to stay-at-home orders
As officials grapple with restrictions, individuals and their businesses have challenged rules they contend are unfair or unworkable. Christopher Atchison, a professor emeritus at the University of Iowa’s Department of Health Management and Policy, said the 50 state “laboratories of democracy” respond differently as they gauge how infectious a virus is and how to combat it.
“You wind up with a cauldron of different ingredients that result in the tensions that you get about what Wisconsin might be doing or Iowa might be doing,” Atchison said.
Maine’s state nickname is Vacationland, but tourism businesses have argued they’ve lost significant reservations because of Gov. Janet Mills. She initially ordered lodgings closed as non-essential and continues to require people visiting or returning from other states to spend 14 days in quarantine before venturing out.
Her reopening plan allowed Mainers to enjoy campgrounds starting Memorial Day weekend, but anticipates the quarantine rule remaining until August. Several businesses filed at least two federal lawsuits challenging the quarantine rule.
“Who’s going to want to come up here to sit in their camper and not being allowed to leave?” asked Kevin Richard, a lawyer for Bayley’s Camping Resort and Little Ossippee Campground. “It’s really confusing for our campgrounds.”
U.S. District Judge Lance Walker set a May 28 deadline for written arguments about whether to block Mills’ order temporarily.
In Illinois, Poopy’s bills itself as the biggest destination for bikers in the state and markets a 1-pound burger called the “big poop.” But the owners, Kevin and Peggy Promenschenkel, said they could go out of business if a federal court doesn’t block Gov. Pritzker’s closure order.
The local health department didn’t force Poopy’s to close, according to the lawsuit. But the Illinois Liquor Control Commission threatened to yank its license, along with unspecified criminal and civil penalties, if it remained open.
“Pritzker has no constitutional authority to forcible close Poopy’s business,” the lawsuit said.
Pritzker told reporters May 12 that more people would be hospitalized and would die if people don’t follow science in reopening gradually. In response to a question about whether Poopy’s and others could reopen, Pritzker said the “vast majority” of businesses and counties were reopening without “relying on science in any way whatsoever.”
“I would just suggest to all of them that they are putting the patrons of their businesses and the people who live in their counties or in their cities in danger when they simply break the rules – break the law in fact – and decide they want to go it alone,” Pritzker said. “I just want to remind everybody, this virus is still out there and still killing people.”