Litigating the Pandemic

(Press-News.org) When the COVID-19 pandemic spread across the United States, healthcare workers faced new demands, childcare and grocery store workers became essential workers, businesses shut down, and churches and school doors closed. The pandemic also arrived amidst protests over police violence. Deep partisan divisions and record natural disasters amplified these challenges. The national government offered new funding for businesses and individuals and public health guidance, and local governments issued guidelines for gathering in public. 

Litigating the Pandemic (University of Pennsylvania Press, 2023), a new book by Susan Sterett, professor of public policy at the University of Maryland Baltimore County, takes a closer look at the complex world of litigation during the COVID-19 pandemic and the litigation history of issues that long predated the pandemic. The book is part of the University of Pennsylvania Press's "Critical Studies in Risk and Disaster" series, which explores how environmental, technological, and health risks are created, managed, and analyzed in different contexts. 

“This book tracks multiple fields in which pandemic measures brought litigation. They are not cases about liability for getting infected at work but cases about insurance and mitigation measures amid elections, contests over the free exercise of religion, and getting people out of prison. All have a history and a set of actors that long predate the pandemic,” Sterett writes in Litigating the Pandemic. 

“By turning to litigation, this book describes links between governing institutions and the pandemic—problems in one could amplify the other. What emerges from the legal process can be patterned differently than when one begins with the president or a leading public health official.”

Disaster cascades

Sterett draws on the work of environmental, political, and public health scientists and critical disaster studies to lay the groundwork for a broader understanding of disaster cascades rippling through our divided institutions. Insurance companies are a key example. During the pandemic, insurance companies were not ready to cover business losses under disaster policies during a pandemic, which affected business owners, employees, and customers.

Disaster cascades are not only physical events but also include the systems in place communities use to take care of each other daily. Around the world, courts govern routine and big political issues, from insurance to democracy. Courts and their priorities and ways of assessing evidence and law will continue to play roles well beyond the COVID-19 pandemic and current climate change.

“Following one causal case also vastly understates the actors involved and who is responsible for what. No one causal agent is responsible for the spread of the virus among multigenerational households or the climate change health experts link it to,” writes Sterrett. “Closure orders, immigration, and state decisions about liability exemptions all include opportunities for lawsuits that attribute responsibility and advance material or ideological advantage for those suing.”

Courts and decision-making

In 2020 and 2021, the increasing partisan divide led conservatives and liberals to sue over long-fought issues. The Supreme Court and lower courts heard cases on religion and property rights. In the state courts, cases were filed to release elderly incarcerated people at risk of serious illness. Expanded voting practices, such as mail-in ballots, were also contested in court.

“The pandemic created an opportunity for groups motivated by preexisting political goals, including goals concerning religion and mass incarceration,” Sterett explains. “Some constitutional claims did go to the Supreme Court during this time period: cases on voting rules, church closures, and the moratorium on evicting people from housing during the pandemic.”

Throughout the pandemic, law firms and law professors aggregated cases people filed in state and federal courts about the pandemic. Sterett uses this data in Litigating the Pandemic to provide an in-depth, 360-degree view into how the U.S. court systems governed in the pandemic. Insurance remains a flashpoint for governing in a changing climate. The place of religion and expertise also continues to be a focus of activism for conservative litigators. 

“The Bill of Rights does not require freedom from quarantines, closures, or vaccines. The flexibility of legal standards means that officials can frame them for their own purposes,” writes Sterett. “Hijacking the meaning of freedom as something we experience individually, without common care or responsibility and involving a high tolerance for death and illness, is not a triumph of either democracy or legal rights. Moreover, it results from governance decisions that refuse to take our interconnectedness with one another and our world seriously.”

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