COVID-19 pandemic roundup

  • Gov. Andrew Cuomo has shown himself quite the deregulator during New York’s coronavirus emergency. If only so many of his steps were not accompanied by that word “temporary” [Alex Tabarrok]
  • Where government has failed, Silicon Valley biotech to the rescue [Andrew Leonard, Wired]
  • Lawn care, small motorboats, the paint aisle: What sets Michigan apart is how far its governor has gone in imposing arbitrary restrictions that have little if any plausible link to curbing virus transmission. [Shikha Dalmia]
  • Euro consumer data privacy follies: “Supermarkets in the EU wanted to deliver groceries to 1.5 million people self-isolating from coronavirus. But they couldn’t get the list of names & addresses necessary to do so because it would violate GDPR.” [Telegraph (U.K.) via Alec Stapp]
  • Constitution doesn’t permit racial preferences in the distribution of pandemic relief funding, especially as it isn’t a remediation of earlier discrimination [Hans Bader on Arlington, Va. small business grant program]
  • Would courts strike down quarantine measures in recognition of a right of family unity? [Josh Blackman]


  • One reason, I am sure, that Whitmer imposed some of these crazy restrictions (golf, really–people can’t go out with their families and golf?) is that she didn’t want to deal with the politics of lower-class people complaining that rich people could go to their summer homes, play golf etc. This means, of course, that political considerations came into play with her order. Certainly, a family playing golf has far less risk of COVID-19 spread than say going to get an abortion.

    This, in my view, invalidates the ENTIRE order because the power to restrict the freedom of Americans can only be justified by health reasons alone. (And even then, I don’t think Jacobson goes this far.) But even if it didn’t invalidate the entire order, Whitmer has still violated the constitutional rights of Michiganders. The order’s allowance of abortion,but not so-called elective procedures, is irrational. The right to seek medical care is a constitutional right and denying people medical care for a prolonged period of time is plainly unconstitutional–exempting abortion from that just points up the wrongfulness.

    Whitmer’s order plainly goes far beyond any rational response to the health crisis. Of course, people will say, “Gee, why do you want to golf while people are suffering? And society has more important business than your ‘elective procedure.'” Such a response, in a rights based society, is deeply offensive. Rights are just that, rights. And they cannot be arbitrarily taken away.

  • SPO, can you cite me a court decision that “the right to seek medical care is a constitutional right”?


    • Well, prisoners have it, and the abortion rights decisions emphasize that abortion is medical care.

      And seriously, could a state ban, for example, cataract surgery?

      • Actually, I think a state could ban cataract surgery under the US constitution, given the way the law is interpreted today. All they would need is a “rational basis”. The US government could probably due it, citing the commerce clause as the authority. It is an interesting question.

        Note, the reason states cannot ban abortion relates to some sort of penumbra of privacy rights in the US constitution. Those rights do not necessarily translate to cataract surgery.

        • You’d run into serious issues . . . . the 8th Amendment requires that prisoners be given the surgery–so prisoners have a right to paid-for treatment that ordinary people cannot get?

          If the surgery were, of course, far more risky than say a pill (if one is ever developed), then maybe.

          But no, states cannot ban ordinary medical procedures. . . .

    • Further to my last—the challenge, and I assume that the question is posed as such, seems to me to be part of the unfortunate view (at least in my opinion) that unless a court says X, the question is really open. At the end of the day, do we need to rely on courts to tell us that governors (putting aside the current crisis) or legislatures cannot prohibit medical care? I think we’ve gone too far down that route. And the corollary to your challenge is that we live in a society that allows government to do X until a court says no. By that rationale, the sheriff in Wisconsin is in the clear for ordering the girl to take down her post about being a COVID-19 sufferer because, you know, no court has ever said that in a pandemic, speech that might spark fear can be banned.

      Whitmer also, early on, forbade the use of HCQ in the treatment of COVID-19. Whatever one thinks of that treatment–clearly some doctors think that it’s a good idea to prescribe it–and she had no business banning it.