Shifting Standards of Judicial Review during the Coronavirus Pandemic in the United States

22 (6) German Law Journal 1039-1059 (2021), https://doi.org/10.1017/glj.2021.51

21 Pages Posted: 23 Sep 2021

See all articles by Wendy K. Mariner

Wendy K. Mariner

Boston University School of Public Health; Boston University - School of Law

Date Written: May 21, 2021

Abstract

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.

Keywords: emergencies, human rights, judicial review, religious freedom, reproductive rights

Suggested Citation

Mariner, Wendy K., Shifting Standards of Judicial Review during the Coronavirus Pandemic in the United States (May 21, 2021). 22 (6) German Law Journal 1039-1059 (2021), https://doi.org/10.1017/glj.2021.51, Available at SSRN: https://ssrn.com/abstract=3928018

Wendy K. Mariner (Contact Author)

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States
617-358-3160 (Phone)
617-414-1464 (Fax)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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