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3 Key Constitutional Questions We Have to Answer in Our Fight Against the Coronavirus

7 minute read

The coronavirus pandemic sweeping the globe has drastically altered American life. Much of the nation is still at home under shelter-in-place orders, businesses are closed, and more than 26 million people are now out of work. But along with the new, practical questions redefining the our lives — When is it safe to see my family? How can I get my stimulus check? What cleaning products work best to keep my house safe?— the virus’ impact is also raising complicated constitutional questions that are highlighting the country’s deep ideological divisions in the midst of the crisis.

As federal and state governments have had to shutter large swathes of the economy to slow the spread of the virus, some Americans feel they have gone too far, infringing on rights enshrined in the Constitution, such as the right to bear arms or to practice freedom of religion. The fight is playing out in courts around the country, where numerous lawsuits have been filed on questions ranging from whether religious gatherings are being singled out in social distancing restrictions to whether shuttering abortion clinics as nonessential medical providers violates women’s right to the procedure.

President Donald Trump has tweeted the need to “liberate” some states from strict public health measures, but he also criticized Georgia for loosening restrictions too soon. In a White House briefing on April 17, Trump seemed to empathize with the sentiment of citizens chafing at restrictions, even as as his own advisors said the re-opening too quickly could be catastrophic. “I think some things are too tough,” he said.

Here are three emerging constitutional battles in the war to beat the coronavirus.

First Amendment

Restrictions on religious gatherings— including limiting the number of people that are allowed to attend services— have become a major issue in several states. In recent weeks, multiple lawsuits have been filed throughout the country arguing that the restrictions violate the First Amendment’s guarantee to freely exercise religion.

Churches and advocacy organizations have already filed lawsuits against governments in several states, including Kansas, New Mexico, Texas, Mississippi, Florida, and California. In Kansas, for example, the state placed a limit of 10 people at religious gatherings; the governor’s office says six deaths and 80 coronavirus cases in the state have been linked to religious gatherings. But a judge’s order has blocked enforcement of the governor’s order at two churches in the state, saying that “churches and religious activities appear to have been singled out among essential functions for stricter treatment.” The judge is considering whether he should issue a broader injunction, and other cases like it throughout the country are also ongoing.

The Trump Administration has taken a keen interest in these religious freedom cases. The Justice Department has filed a statement of interest in a similar case in Mississippi, siding with a church that claims authorities unfairly targeted it for enforcement when members of the congregation were fined for attending a drive-in service on April 8.

Attorney General William Barr says the religious freedom questions are an overall priority for the Justice Department during the pandemic. “Whatever measures are placed against religion have to be placed against all comparable commercial and other activities,” Barr told conservative radio host Hugh Hewitt on April 21. “You can’t single out religion for special burdens.” In a call with more than 500 faith leaders hosted by the White House on April 23, Barr was “very concerned,” according to a source on the call, about situations where religious gatherings are restricted at a different level than other activities. “This is the heart of the First Amendment,” Barr said, according to the call participant, who also noted the attorney general said he has been in contact with U.S. attorneys throughout the country about other cases about similar issues.

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Second Amendment

Second Amendment issues are cropping up in states that have ordered “non-essential” businesses to close and deemed gun retailers “non-essential.”

Massachusetts, New York, Pennsylvania and New Jersey, for example, had ordered the closure of gun shops as part of the states’ efforts to slow down the virus’ transmission. Several lawsuits have been filed by gun groups, shops and owners challenging the closures, including one brought by the National Rifle Association in New York that claims Governor Andrew Cuomo “effectively and indefinitely suspended a key component of the Second Amendment to the United States Constitution” by classifying gun shops as non-essential and forcing them to close.

On March 28, the Department of Homeland Security (DHS) published guidance designating “workers supporting the operation of firearm, or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” as part of the “essential critical infrastructure workforce.” The guidelines are “advisory in nature,” according to the document, and should “not… be considered, a federal directive or standard.”

Nevertheless, Pennsylvania and New Jersey, which were both facing separate lawsuits over the closures, subsequently reversed their decisions and allowed gun stores to reopen. “It wouldn’t have been my definition, but that’s the definition at the federal level,” Democratic New Jersey Governor Phil Murphy said on March 30, announcing the reopening of gun stores.

In the midst of these debates, Trump has offered his support to gun sales, lambasting another state’s imposition of gun control measures during coronavirus, though they were not a direct response to the pandemic. “What they’ve done in Virginia with respect to the Second Amendment is just a horrible thing,” he said in the April 17 briefing. (Virginia’s governor signed gun control measures into law in April, though most of the bills had been discussed and introduced before the coronavirus pandemic spread through the United States.)

Abortion rights

Several states have temporarily banned non-essential medical procedures to help preserve medical supplies in the face of nationwide shortages. But states including Texas, Alabama, Ohio, Arkansas, Iowa and Oklahoma also put abortion in that category, leading to court challenges from abortion rights groups who say halting the service is opportunistic and unconstitutional.

“The novel coronavirus managed exactly what anti-abortion activists struggled for nearly five decades to accomplish: it is the biggest threat to legal abortion in America ever imagined,” Robin Marty, the communication director for Yellowhammer Fund, an abortion fund in Alabama, wrote in TIME.

Advocacy organizations and abortion providers have filed lawsuits in Alabama, Iowa, Ohio, Oklahoma and Texas, arguing that the orders violate the landmark abortion precedent set in the case Roe v. Wade that protects women’s right to abortions.

“Using this pandemic to ban abortion access is unconstitutional,” Nancy Northup, President and CEO of the Center for Reproductive Rights, said in a statement. “Abortion care is time-sensitive and essential health care that has a profound impact on a person’s health and life, which is why it is protected as a constitutional right.”

In early April, injunctions were granted in Ohio, Alabama and Oklahoma, allowing the procedures to go forward. The Iowa suit was dropped after the state clarified that not all surgical abortions would be banned. Some abortions can also resume in Texas after the governor loosened his original restrictions in a new order in late April.

Please send tips, leads, and stories from the frontlines to virus@time.com.

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Write to Tessa Berenson at tessa.Rogers@time.com