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A Perspective on COVID-19, Part III (What’s Next?) by Kevin Diehl

We are, seemingly, coming to the end of the Great Shut-in that began in mid-March. Businesses are opening and, with the weather getting better, people are out and about again.

Was it all necessary – the closings, the isolation, the massive quarantine? No doubt those questions will be explored and our reactions to this virus will be analyzed in the coming months and years. I won’t attempt to answer them now. But from the beginning, one issue that Matt (Nee – of Nee Law Firm fame) and I have been looking into is this: on what authority did Governor DeWine and Dr. Amy Acton shut down Ohio?

We explored that question in the first blog in this series, here. And we looked more deeply into the history of quarantines in the second blog, here. Many of us, I think, were a bit surprised that our state law was structured in such a way that vested immense power in one individual, the Director of Public Health. The legal framework, with no real check on power or even a viable appeal process, seemed to run against the very nature of our self-governing bloodlines.

Around the nation, people took the initial shutdowns with stoic resolve – we were told that a virus had been unleashed upon the world that would kill millions if we didn’t take drastic, unprecedented measures to curb its spread. As “experts” waved computer models that portended never-before-seen tragedy, many of our leaders listened and issued orders to shelter-in-place. Most people obeyed.

But shortly after the shutdown began, the experts who presented us with the dire computer models began to modify their predictions, admitting that the models had been flawed. Yet the lockdowns persisted.

And that brought pushback from people questioning the lockdown orders. Numerous lawsuits were filed around the country in federal and state courts. In most of the federal cases, the courts relied on a precedent set in a United States Supreme Court case from 1905 called Jacobson v. Massachusetts. In that case, Pastor Henning Jacobson argued that requiring him to vaccinate his children – in accordance with a compulsory small pox vaccination law – was an invasion of his liberty as guaranteed by the Preamble to the Constitution.

The Supreme Court upheld the Massachusetts law, concluding that the state retains the authority during a public health crisis to enact such a law in accordance to its police power. The Court stated that it had “distinctly recognized the authority of a State to enact quarantine laws and ‘health laws of every description’…to safeguard the public health and the public safety.” It reiterated that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

Several states, including Ohio, faced lawsuits from abortion clinics that were closed when hospitals were shutdown to all but COVID and emergency room patients.

The abortion case in Ohio, Preterm-Cleveland v. Attorney General of Ohio, was heard in the federal court of the Southern District of Ohio. The abortion providers wanted to be exempt from the shutdown order issued by Dr. Acton that affected so many other healthcare providers.

Reaching the same conclusion as a district court in Alabama, the Southern District of Ohio determined that absent a court order, women in Ohio would face a substantial obstacle that would make accessing abortion care very difficult. Thus, the court prohibited Ohio’s officers from applying and enforcing the order “in such a way as to prohibit those physicians from making case-by-case determinations that a surgical abortion is essential when the procedure is necessary because of the timing vis-à-vis pre-viability; to protect the patient’s health or life; and due to medical reasons…”

And so, in Ohio, one’s access to abortion remained unabated during the lockdown even while other medical procedures were out of reach. Other states operated under similar circumstances.

In Illinois, state court judge Michael McHaney issued a ruling in a case brought by a small business owner against Governor J. B. Pritzker that challenged Pritzker’s shutdown order. Judge McHaney reached a very different conclusion than many of the other courts that considered such challenges, and he left no doubt as to his opinion of the lockdown orders.

“Since the inception of this insanity,” Judge McHaney wrote, “the following regulations, rules or consequences have occurred: I won’t get COVID if I get an abortion but I will get COVID if I get a colonoscopy. Selling pot is essential but selling goods and services at a family-owned business is not. Pot wasn’t even legal and pot dispensaries didn’t even exist in this state until five months ago, and in that five months, they have become essential but a family-owned business in existence for five generations is not.”

“If I go to a Walmart,” Judge McHaney wrote, “I won’t get COVID but, if I go to church, I will. Murderers are released from custody while small business owners are threatened with arrest if they have the audacity to attempt to feed their families.

“These are just a few examples of the rules, regulations and consequences that are arbitrary, capricious, and completely devoid of anything even remotely approaching common sense.”

Governor Pritzker ordered people to stay at home, and pronounced that “if you leave the state, you are putting people in danger,” McHaney wrote, but Pritzker’s “family members traveled to Florida and Wisconsin because he deems such travel essential. One initial rationale why the rules don’t apply to him is that his family farm had animals that needed to be fed.”

This hypocrisy led Judge McHaney to conclude, “When laws do not apply to those who make them, people are not being governed, they are being ruled. Make no mistake, these executive orders are not laws. They are royal decrees. Illinois citizens are not being governed, they are being ruled.”

In mid-May, the Wisconsin Supreme Court issued a ruling on the state health director’s emergency order. That court found the order unenforceable on the basis of the separation of powers.

The Wisconsin court drew a distinction between emergencies requiring immediate response and pandemics, which can last for months. “If a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.” Thus, the shutdowns in Wisconsin were lifted in mid-May.

Here in Ohio, in early May, state legislators introduced Senate Bill 1 that would, among other things, limit the state health director’s authority. Specifically, the bill required that any order issued by the health director would last no longer than 14 days. Any extension beyond that would require approval by a joint House and Senate committee.

The measure passed the Ohio House by a mostly party-line vote, with most Republicans voting for it. But in the Republican dominated state senate, it went down in flames: 32-0.

Governor DeWine had promised to veto the bill if it came to his desk, so perhaps that’s why the Senate voted against it. But then, in a surprise move, Dr. Acton announced that she was stepping down from her post as health director. She will remain in an advisory capacity.

Where do we go from here? Who knows? 2020 has been a volatile and unpredictable year. But as we analyze the reaction to the virus, it’s likely that legislatures around the country will reexamine their state’s laws regarding health emergencies and will perhaps reduce the authority vested in one person wearing a white lab coat.

BY Kevin Diehl

Nee Law Firm, LLC


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