Constitutional Contagion, The Courts, COVID, and Public Health

Wendy E. Parmet (Northeastern University), Constitutional Contagion, The Courts, COVID, and Public Health, Northeastern U. Sch. of L. Working Paper 435 (2023): 

More than three years after the start of the COVID-19 pandemic, the United States is an unhealthy nation. During the pandemic, the US lost more people per capita to COVID-19 than any other high-income country and life expectancy, which was lower in the US than in peer countries prior to the pandemic, has not rebounded, as epidemics of suicide, firearm deaths, overdoses and chronic diseases continue alongside COVID-19, to extract a terrible toll. These grim outcomes hide alarming racial, ethnic, and economic disparities.

Constitutional Contagion, The Courts, COVID, and Public Health (Cambridge Univ. Press, 2023) examines constitutional law’s contribution to America’s health woes. The book also explains why the Constitution does not compel – and for most of its history was not read to compel – the health-impairing doctrines and thin conception of liberty that dominate contemporary constitutional law and impair our capacity to address the sources of our ill health.

This introduction to the book begins with the start of the pandemic in February 2020. The introduction then outlines the arguments that follow, which examine the courts’ approach to public health laws from the onset of the Constitution until 2020, the courts’ review of COVID-related restrictions, and the many other constitutional doctrines that have helped to make Americans more vulnerable to the pandemic while magnifying health inequities. Along the way, the book explores the interdependency of health, differing conceptions of liberty and freedom, and the role that structural racism has played in weakening Americans’ health. The book concludes by discussing the relationship between doctrines that weaken democracy and America’s poor health.