Article Analysis #14- Civil Liberties and Civil Rights

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Disease Control, Civil Liberties, and Mass Testing

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Urgent responses to the Cov-id-19 pandemic have halted movement and work and dramat- ically changed daily routines for much of the world’s population. In the United States, many states and localities have ordered or urged residents to stay home when able and to practice physi- cal distancing when not. Mean- while, unemployment is surging, schools are closed, and business- es have been shuttered.

Resistance to drastic disease- control measures is already evi- dent. Rising infection rates and mortality, coupled with scientific uncertainty about Covid-19, should keep resentment at bay — for a while. But the status quo isn’t sustainable for months on end; public unrest will eventually be- come too great.

When and how will restrictions be unwound? Should they remain in place until the “all clear” signal, or until some intermediate mile- stone is reached (e.g., once infec- tions or transmission risks have peaked or hospitals have regained capacity)? Will restrictions be lift- ed completely or merely loosened, and for how long? The relatively clear criteria for ending conven- tional quarantine and isolation don’t apply to social restrictions related to Covid-19. The rudimen- tary understanding of the disease and the unprecedented breadth of restrictions feed uncertainty about next steps. A showdown between

public health imperatives and civil liberties appears inevitable.

Law and public policy have a long history of deference to in- trusive action by public health au- thorities, especially during deadly infectious disease outbreaks. There are limits, however.1 To respect civil liberties, courts have insisted that coercive restrictions must be necessary; must be crafted as nar- rowly as possible — in their in- trusiveness, duration, and scope — to achieve the protective goal; and must not be used to target ostracized groups.2 Although these broad principles are useful touch- stones, historical experience with quarantine provides little practi- cal guidance because of several distinctive features of Covid-19 and the public health response it provokes.

First, deprivations of basic lib- erties in response to epidemics have chiefly focused on infected or exposed people or defined groups (think “returning cruise passen- gers”). By contrast, current stay-at- home orders are less intrusive in some respects (they are lightly enforced, and “essential” outings are permitted) and more intrusive in others (most people subjected to them are neither infected nor exposed). This combination of moderation and breadth makes the principles of individualized “due process” developed for tradi- tional quarantine orders less appli- cable. Because restrictions related

to Covid-19 are motivated by com- munity-wide risk and apply to en- tire populations, legal protections focused on how much risk one person poses to others have little relevance. Moreover, because many restrictions apply to the govern- ment’s own institutions (e.g., parks and schools) or are imposed by private actors (e.g., employers), they avoid standard constitution- al scrutiny.

Second, the transmission dy- namics of SARS-CoV-2 make it dif- ficult to identify and target risk groups. The virus is highly infec- tious and has a long but still uncertain transmission window, possibly spanning 10 to 14 days. “Stealth” transmission may occur during asymptomatic incubation or while illness is imperceptible or nondistinct. These factors cre- ate control problems that differ from those associated with the diseases, such as smallpox and tuberculosis, that shaped much of the law and policy precedents we have for restrictive public health actions.

Third, stay-at-home restrictions are unlikely to be a one-shot deal. Disease prevalence will spike and abate. There is emerging consen- sus that a graduated approach to restrictive measures will be need- ed3 — one that permits a return to some social and economic ac- tivity while avoiding undue stress on medical resources and allow- ing population immunity to build

Disease Control, Civil Liberties, and Mass Testing

Disease Control, Civil Liberties, and Mass Testing — Calibrating Restrictions during the Covid-19 Pandemic David M. Studdert, L.L.B., Sc.D., and Mark A. Hall, J.D.

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gradually (see table). Such an ap- proach is a far cry from quaran- tine law’s more binary paradigm of lockdown followed by an all clear signal.2

What laws would govern a graduated approach? More rele- vant than quarantine-based prec- edents are legal challenges to emergency curfews during natural disasters or civil unrest.4 Courts have upheld these orders when they are supported by facts dem- onstrating that the curfew is need- ed to restore peace and security.5 Some courts have reviewed the hours, geographic scope, and du- ration of curfews and considered whether they are indexed appro- priately to the threat level.4 But above all, curfew law highlights the substantial leeway that courts give the government in exigent cir-

cumstances. As one appeals court put it, whether the harsh restric- tions in question “were absolute- ly necessary in order to prevent a serious civil disorder is clearly an important question for political debate, but not, we think, a ques- tion for judicial resolution.”5

Viewing Covid-19–related re- strictions as more of a public pol- icy issue than a legal one, then, how can a graduated model chart a course that appropriately balanc- es disease control and civil liber- ties? We believe that decisions to continue, modify, or lift severe restrictions — particularly bans on movement and gathering — should be tailored using credible person-level information. The key source of such information would be a population-wide program of disease testing and surveillance.

By identifying people most likely to transmit infection in the near term, individualized risk assess- ment would respond to Covid-19’s distinctively dangerous risk pro- file. At the same time, it would avoid sharp trade-offs between discriminatory or unduly broad re- strictions and the perils associated with wholesale loosening of re- strictions.

To be sure, testing itself is an intrusion. But considering this pandemic’s magnitude, effective testing can reduce or prevent the need for much greater intrusions. Moreover, a degree of voluntari- ness is maintained by eschewing forced testing and instead condi- tioning social privileges on coop- eration.

Consider, for example, a policy in which people seeking to return

Structural Features of Traditional and Graduated Approaches to Infectious Disease Control.

Feature Under Traditional Coercive Measures Under Covid-19 Graduated Controls

(in Order of Increasing Severity)

Target group Infected or exposed people Infected or exposed people Population-wide (national, states, regions, or cities)

Primary restrictive measures Involuntary isolation of infected people and quarantine of exposed people

Physical distancing Stay-at-home orders Self-isolation if infection or exposure is known

or suspected

Force of restriction Mandatory Voluntary Required but not rigidly enforced

Enforcer Government None or voluntary Peer pressure and social compact Civil-society organizations (e.g., school districts,

professional groups, and employers) Government

Form of sanction Coercive state action None Social stigma Private enforcement (e.g., refusal of service, indus-

try sanctions) Warnings, fines Coercive state action

Lifting of restriction When risk of infection is gone or very low

When rate of new infections peaks or health care capacity becomes manageable

When additional milestones are reached When risk of infection is gone or very low

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to work, school, or social activities are asked to undergo baseline test- ing for infection and antibodies. Positive tests for infection would trigger self-isolation. Negative tests would certify freedom of move- ment for a defined period — say, 2 or 3 weeks — after which ad- ditional negative tests would re- new the certification. If antibodies are determined to provide long- term protection against both rein- fection and transmission — which is plausible but not yet established — a positive serologic test would warrant longer-term certification.

Aggregating test results at com- munity and state levels would sup- port a reliable disease-surveillance system. A testing regimen’s strin- gency could then be dialed up or down, depending on community prevalence of Covid-19. China is following a version of this ap- proach by grading community risk on a four-tier, color-coded scale.

Titrating restrictive measures in this way would require a testing regimen on a scale unparalleled in U.S. history. Federal, state, and local governments would play a role in financing and oversight but would need to rely heavily on hos- pitals, clinics, nursing homes, re- tail pharmacies, mobile health ser- vices, and private laboratories for implementation. Civil-society orga- nizations (e.g., employers, schools, and retailers) would also have fi- nancial and reputational incentives to foster compliance with govern- ment directives.

Would individualized risk as-

sessment of this kind be lawful? Provided the approach was based on verifiable risk of contagion, used reliable methods, and was applied evenhandedly, there are no obvious obstacles in quarantine- or curfew-law precedents. The in- sidiousness of Covid-19 transmis- sion coupled with the (presumed) low rate of acquired immunity mean that most people are at ap- preciable risk for contracting or spreading the virus, so mass test- ing has a legitimate public health purpose. Most important, tying testing to easing of restrictions makes it an integral component of a strategy for restoring civil liberties.

Limitations in this approach are clear. Vast quantities of tests and personal protective equipment would be needed, neither of which currently exists, although supplies will increase. Acquiring and trans- mitting infection within certifica- tion periods would still be possi- ble; people could also test negative in the early stage of infection. A policy of extending privileges to people with acquired immunity must guard against incentives for them to deliberately become in- fected. In addition, civil-society organizations charged with en- forcement could game the system to gain a competitive advantage or to discriminate. Policing such behavior would be the role of gov- ernment and the legal system; pro- active cultivation of social norms using exemplars and shaming would also help.

These and other imperfections in test-centered approaches to graduated unwinding and reim- posing of restrictions reflect the inevitable compromise to be made between disease control and pro- tection of civil liberties. In ordi- nary times, a comprehensive pro- gram of testing, certification, and retesting would be beyond the pale. Today, it seems like a fair price to pay for safely and fairly resuming a semblance of nor- mal life.

Disclosure forms provided by the au- thors are available at NEJM.org.

From the Stanford University Schools of Law and Medicine, Stanford, CA (D.M.S.); and the Wake Forest Schools of Law and Medicine, Winston-Salem, NC (M.A.H.).

This article was published on April 9, 2020, at NEJM.org.

1. Institute of Medicine Forum on Micro- bial Threats. Ethical and legal consider- ations in mitigating pandemic disease: workshop summary. Washington, DC: Na- tional Academies Press, 2007 (https://www .nap .edu/ catalog/ 11917/ ethical - and - legal - considerations - in - mitigating - pandemic - disease - workshop - summary). 2. Parmet WE, Sinha MS. Covid-19 — the law and limits of quarantine. N Engl J Med 2020; 382(15): e28. 3. Gottlieb S, Rivers C, McClellan MB, Sil- vis L, Watson C. National coronavirus re- sponse: a road map to reopening. Washing- ton, DC: American Enterprise Institute. March 28, 2020 (https://www .aei .org/ wp - content/ uploads/ 2020/ 03/ National - Coronavirus - Response - a - Road - Map - to - Recovering - 2 .pdf ). 4. Ghent JF. Validity and construction of curfew statute, ordinance, or proclamation. Am Law Reports 3d. 59: 321 (1974, with up- dates). 5. United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971).

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