The full-armamentarium of public health countermeasures came into play when COVID-19 emerged; a few examples are quarantine, closures, and social distancing. These countermeasures are intended to protect population health but trench on many important rights protected by ethical precepts and tort, constitutional, or other law. The measures studied here, orders to delay “elective” medical procedures to preserve resources, have been virtually ignored. Yet, they are uniquely broad, risky, and disruptive of doctor-patient relationships. Delay also can be shoddily promulgated or implemented, thus creating tort liability. Although medicine (speaking for the few) and public health (speaking for the many) traditionally have clashed, this article shows that medical and public health law and ethics combine to require strict (constitutional) or stringent (medical and public health ethics) scrutiny of delay actions. This scrutiny requires a showing that a countermeasure is necessary, effective, and the least intrusive way to further vital governmental goals. Delay orders trench on several fundamental or special liberties. This article focuses on those as well as the seldom-discussed fundamental right to purchase care (or insurance for it) available in the open market. Although delay regimes can be beneficial if properly promulgated and implemented, it is unlikely that the COVID-19-related actions can meet ethical standards or withstand constitutional strict or even certain types of intermediate scrutiny that require the government show the actions work or are the least restrictive alternative.
Roy G. Spece Jr.,
COVID-19 Control: Disrupting Doctor-Patient Relationships,
100 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol100/iss1/4