In the coming days and weeks, it’s likely many Americans will face inconveniences in response to the Covid-19 outbreak. Offices may ask employees not to come to work, church services will be suspended, schools will close, and big public events will be canceled.
All of this will be done in the name of “social distancing” — a catch-all name for policies meant to reduce the average frequency and intensity of people’s exposure to the virus during an outbreak. Now that it looks like the respiratory disease will not be able to be contained, social distancing can avert an explosion in cases that overwhelms the health care system.
But how far can these social distancing measures go in the US?
Italy has turned toward the complete shutdown of travel for its entire population, in what’s been referred to as a “lockdown.”
China instituted similar measures in Hubei province, the epicenter of the outbreak. I asked a legal expert: Could that happen here?
Can the US really “lock down” a region?
It’s not only Italy that has set up severe social distancing measures. In China, hundreds of millions of people were given travel restrictions; many were not allowed to leave their homes. Whole cities were cut off from one another. Public health experts call such a travel restriction a cordon sanitaire.
Over the weekend, Fox News Sunday host Chris Wallace asked Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases, if it’s possible anywhere in the US would replicate Italy’s current actions in essentially locking down access to a city, state, or region.
“It’s possible,” Fauci said. “You don’t want to alarm people, but given the spread we see, you know, anything is possible. And that’s the reason why we’ve got to be prepared to take whatever action is appropriate to contain and mitigate the outbreak.”
But it’s unlikely such a mandate could happen in the United States, given our system of government. (Fauci also told CBS News recently, “I don’t imagine that the degree of the draconian nature of what the Chinese did would ever be either feasible, applicable, doable or whatever you want to call it in the United States.”)
Much of the enforcement of public health is a power held by a city or state. And different cities and states can decide to confront the expanding outbreak in a slightly different way. Plus, it might not be legal, per the Constitution.
If the coronavirus hits America, who’s responsible for protecting you?
“The term ‘lock-down’ isn’t a technical term used by public health officials or lawyers,” Lindsay Wiley, a health law professor at the Washington College of Law, said in an email. “It could be used to refer to anything from mandatory geographic quarantine (which would probably be unconstitutional under most scenarios in the US), to non-mandatory recommendations to shelter in place (which are totally legal and can be issued by health officials at the federal, state, or local level), to anything in between (e.g. ordering certain events or types of businesses to close, which is generally constitutional if deemed necessary to stop the spread of disease based on available evidence).”
Wiley explains that the role of the federal government in outbreaks is usually just to provide support, funding, and expert advice for local efforts. And local efforts usually start off as asking citizens to voluntarily comply with health department orders. (Though, it’s possible for cities and states to enforce a quarantine order with police, if it comes to it).
But whether any level of government could enforce the wholesale closing of a region or city (whether or not that decision is ill-advised), is a question courts would have to weigh in on.
“As a matter of constitutional law, the courts would typically require government officials to try voluntary measures first, as a way of proving that mandatory measures are actually necessary,” Wiley said. “Furthermore, any mandated measures would have to be narrowly tailored and backed by evidence. … To pass constitutional muster, an order not just urging but requiring all people within a particular area to stay home would have to be justified by strong evidence that it was absolutely necessary and that other, less restrictive measures would be inadequate to slow the spread of disease.”
Such an order would be severe and could erode trust in our government. And a voluntary order might work just as well. As Tom Inglesby, the director of Johns Hopkins SPH Center for Health Security, points out, if followed, a voluntary order could work just as well.
Short of a “lockdown,” social distancing measures will still greatly impact daily life
The federal government does have some powers, including the right to quarantine travelers coming from abroad (the CDC recently issued its first mandated quarantine on travelers in 50 years due to Covid-19) and to impose travel restrictions. If things get really bad, the federal government “can basically federalize state response if there’s a failure of local control,” said Tom Frieden, former director of the CDC and former New York City health commissioner. But local control comes first.
That said, cities and states can mandate a whole slew of measures that, in total, might feel like a lockdown of most aspects of daily life, but stopping short of walling off whole regions and cities.
These measures include postponing or canceling mass gatherings like sporting events, concerts, or religious gatherings. It could mean closing schools or encouraging telework. (Other good practices during any outbreak: Stay home if you’re sick, cover your coughs and sneezes, and wash your hands.)
“A local health department may ask — or order — private businesses and organizations to cancel events where large crowds are expected to gather,” Wiley says. “Or, if it is determined that children play an important role in transmitting infection, state and local officials may order public and private schools and daycares to close. These decisions would be made primarily at the local level — city by city, county by county.”
Because these decisions are local, they can result in inconsistencies. One school district might be closed due to coronavirus fears while another stays open. And these decisions are often influenced by political concerns.
How does the coronavirus outbreak end?
But these measures — especially when paired with aggressive diagnostic testing, isolation of the sick, and contact tracing — can work. Just look at China.
Evidence is mounting that early in the outbreak, in January and February, China bought the world time with its aggressive action to contain the viral outbreak in its borders. New cases in China are now declining, seemingly because of the government’s dramatic measures to contain the virus — mainly case finding, contact tracing, and suspension of public gatherings — as WHO epidemiologist Bruce Aylward, who led a recent mission there, told my colleague Julia Belluz.
In the coming days and weeks, you might be asked to restrict your movements in ways that might be truly inconvenient. Perhaps it’s useful to think of it as a civic responsibility, like jury duty. The risk of Covid-19 is public. Individuals can get the disease and be just fine, but then spread it to people who will die from it. Our actions are not just to protect ourselves, but others.