20 November, 2023 | Federico Fabbrini

Judicial protection of human rights during Covid-19: The European and American experiences compared

The Covid-19 pandemic posed a major challenge to the protection of human rights as public authorities across the globe had to introduce a number of unprecedented measures to contain the virus. Between 2020 and 2022, in response to the largest public health crisis since the 1918 Spanish flu, governments worldwide adopted sweeping laws designed to mitigate the spread of Covid-19. Some of these measures imposed prohibitions on individuals (non facere), such as church closures and stay-at-home orders, while other measures imposed specific duties (facere), namely masks and vaccines mandates, when these became widely available. As such, these measures severely affected a number of important human rights, including free movement, freedom of religion, the right to peacefully assemble, and personal autonomy. This led to a significant amount of litigation before courts.

In the research paper Covid-19, human rights, and judicial review in Transatlantic perspective published within the Horizon Europe REGROUP project, I examine judicial review of Covid-19 measures and the protection of human rights during the pandemic in the European Union (EU) and the United States (US). In particular, the paper puts together an original dataset of over 300 cases to provide the first ever systematic analysis of how courts in the EU and the US have reviewed key Covid-19-related measures. Specifically, the paper classifies and examines rulings delivered between February 2020 and June 2023 by the US federal Supreme Court, the supreme courts of all 50 US states, the European Court of Justice, the European Court of Human Rights and the top courts of 25 out of the 27 EU member states (all except Hungary and Poland, since these countries are experiencing a rule of law backsliding).

The paper advances three hypotheses, based on judicial review of emergency measures in counter-terrorism contexts, and tests their applicability during the pandemic by considering a number of cases dealing with freedom of religion, freedom of movement and personal liberty and autonomy. The three hypotheses of the paper are that: first, courts will defer to the political branches of government in the early phases of an emergency, but tighten their scrutiny overtime; second, courts will scrutinize more closely measures which have a broad application, and affect the judges themselves, as opposed to measures that only target specific sub-sectors of the population; third, courts will follow the guidance of experts in matters where specific technical knowledge is required.

Balancing rights and health protection across the Atlantic

The paper argues that a significant transatlantic convergence exists on how top courts have reviewed non facere measures introduced in the early stages of the pandemic, which confirms the validity of the first two hypotheses in both the EU and the US. In cases reviewing church closures, both in the EU and the US courts have initially deferred to governmental decisions, but tightened their scrutiny over time to protect freedom of religion. Similarly, in cases reviewing stay-at-home orders, courts in both the EU and the US have often upheld governmental restrictions but also occasionally invalidated them as incompatible with the right to free movement and the freedom to undertake an economic activity, particularly when they appeared overblown, or disproportionate.

Instead, the paper points out to a transatlantic divergence in the field of judicial review of facere measures, introduced later in the pandemic, which confirms the validity of the third hypothesis in the EU, but falsifies it in the US. While EU courts have systematically upheld the legality of mask mandates, and mandatory vaccinations, when these became available, the US Supreme Court has invalidated a general vaccine mandates, and mask mandates have been struck down by state courts. As the paper points out, this divergence can be explained due to the greater politicization of public health in the US than in the EU, and the growing lack of deference towards, and trust in, scientific expertise in the US.

In conclusion the paper suggests that the alternative balancing of human rights and health protection in the US and the EU during Covid-19 reveals contrasting lessons from the pandemic on the relation between risk and resilience in constitutional democracies.

This article highlights some of the findings in the REGROUP paper Covid-19, human rights, and judicial review in Transatlantic perspective.