A law professor and expert on public health policy said people do not have a constitutional right to get back to work and ignore a governor's executive order during a public health emergency like the COVID-19 pandemic.
Health experts have said pulling back restrictions aimed to stop the spread of COVID-19 will lead to more deaths. President Donald Trump acknowledged in an interview Tuesday with ABC News that lives will be lost as a cost to jumpstarting the economy.
Over the past few weeks, some people in Arizona have rallied at the State Capitol and other events, asking Governor Doug Ducey to reopen the economy, claiming they have a constitutional right to work and that the stay-at-home order that prevents that is not legal.
James Hodge is a law professor at Arizona State University that specializes in emergency legal preparedness and public health law. He said because we are dealing with a pandemic and public health emergency, the government can issue stay-at-home orders and restrict certain rights.
"If you were to assert that you have some constitutional right to get back to work against a background of a menacing threat like COVID-19, that fall flat. That is not a constitutionally sound claim," said Hodge. "The freedom of assembly, the freedom of religion, right to free speech, all of these additional right to due process, liberty and trust, these are always balanced against the governmental interest in protecting the public health and safety."
He said the 1905 US Supreme Court case Jacobson v. Massachusetts during the smallpox outbreak sets a precedent.
"What the case actually stands for now, more than ever, it's the fact that during emergencies, we will reassess and calibrate specific constitutional interests with the emergency event in mind, that is a constitutional balance that government gets to do," he said.
A Flagstaff man has sued Governor Ducey, claiming his stay-at-home order is unconstitutional. That case will go in front of a US District Court judge this week. According to legal filings, Ducey's lawyers cited Jacobson v. Massachusetts to defend the order.
What about those who don't feel safe going back to work? Hodge said there are legal claims people could make if an employer isn't taking precautions to minimize risk, and the employee doesn't want to work there.
"There are specific federal and state protections against firing somebody for raising risks or blowing a whistle over potential safety risks that arise," said Hodge. "But you do it against a backdrop that suggests that you may not come to work until these things are fixed. The employer will find someone else most likely who will come to work and accomplish what you need to do. You really do run the risk of whether the employer will continue to pay you under those circumstances, whether they will simply release you and face the legal consequences."
The nation's top infectious disease expert Dr. Anthony Fauci has warned against rushing to reopen, saying it'll lead to more deaths. In an interview with CNN Monday, Dr. Fauci said that the decision to reopen states across the country amounted to balancing "how many deaths and how much suffering are you willing to accept to get back to what you want to be, some form of normality, sooner rather than later."'
"You are actually balancing something that I think is almost, quite frankly, hard to justify," said Hodge.
"Are you willing to be the next person infected with COVID and take your chances? Or are you willing to be that person who goes to a hospital or group of healthcare workers and says, 'We're willing to sacrifice your life just so we can get back to work," he asked. "Economic impacts or temporary, lives lost are not."
The Network for Public Health Law has more resources to explain legal issues emerging during the COVID-19 pandemic. Learn more here.
You can also watch Hodge's webinar that discusses the Top 10 constitutional challenges arising nationally.