Federal Court Holds Pennsylvania’s Shutdown Order Unconstitutional: Stay-at-Home Order
I blogged below about the general analysis in Judge William S. Stickman IV’s decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban. But the court also struck down the Governor’s order to “stay-at-home except as needed to access, support or provide life sustaining business, emergency, or government services”; that order, the court concluded, violates substantive due process:
Although this nation has faced many epidemics and pandemics and state and local governments have employed a variety of interventions in response, there have never previously been lockdowns of entire populations—much less for lengthy and indefinite periods of time…. [T]he lockdown effectuated by the stayat-home orders is not a quarantine. A quarantine [under Pennsylvania law] requires, as a threshold matter, that the person subject to the “limitation of freedom of movement” be “exposed to a communicable disease.” Moreover, critically, the duration of a quarantine is statutorily limited to “a period of time equal to the longest usual incubation period of the disease.” The lockdown plainly exceeded that period….
Defendants attempt to justify their extraordinary “mitigation” efforts by pointing to actions taken to combat the Spanish Flu pandemic a century ago. Ms. Boateng testified that, in response to the Spanish Flu, “much of the same mitigation steps were taken then, the closing of bars, saloons, cancellation of vaudeville shows, as they called them, and cabarets, the prohibition of large events. So some of these same actions that we’re taking now had been taken in the past.” But an examination of the history of mitigation efforts in response to the Spanish Flu—by far the deadliest pandemic in American history—reveals that nothing remotely approximating lockdowns were imposed.
Records show that on October 4, 1918, Pennsylvania Health Commissioner B. Franklin Royer imposed an order which closed “all public places of entertainment, including theaters, moving picture establishments, saloons and dance halls and prohibit[ed] all meetings of every description until further notice.” The order left to local officials the decision on whether to cancel school and/or religious services. The restrictions were lifted on November 9, 1918…. [S]tate and local mitigation measures were of similarl
Article from Latest – Reason.com