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Constitutional Contagion: Covid, the Courts, and Public Health
The public health profession uses the term “social determinants of health” to describe the social conditions that combine to influence the health of individuals and communities. These include such measurable elements as education, housing, and economic stability as well as environmental quality, structural racism, and other forms of systemic discrimination, some of which are less quantifiable. In Constitutional Contagion, Wendy Parmet demonstrates that among these elements we also need to include law.
It was a given that legal issues would arise in the course of the US response to the Covid-19 pandemic. In the spring of 2020 governors and mayors almost immediately drew on explicit or assumed legal authority to issue shutdown orders and impose other mitigation measures, even as the public health response became fuel for the country’s political polarization. By mid-2021, barely more than a year into the crisis, more than a thousand lawsuits had been filed against pandemic restrictions and mandates, and the Supreme Court had abruptly reversed itself and begun accepting religious objections to such measures rather than the recommendations of those whose job was to keep the public safe—with major doctrinal consequences that are still unfolding.
Parmet, a law professor at Northeastern University who has written widely on public health, recounts these developments, but her goal is deeper: to illuminate the currents in American legal culture that contributed to what she deems the country’s “catastrophic response” to the pandemic. She places on display an American exceptionalism of a particularly disquieting form: a legal mindset that has come to value individual freedom over communal welfare and so has “lost sight of contagion’s most compelling lesson: Our own health depends on the health of others.”
There is no dispute that the country fared poorly during the pandemic in both absolute and relative terms. The US death toll that reached one million in May 2022 represented more than 300 deaths per 100,000 people, compared to France at 230, Germany at 170, and Canada at 110. Among all high-income countries, none performed as badly as the United States.
There was no single cause for this dismal record...
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