by: Ed Garland
Amanda Clark Palmer
What will rise from the ashes of this pandemic: A phoenix or a vulture?
Will there be fewer civil rights? More impediments to voting? Enhanced encroachments on the right to privacy? Less tolerance of minority points of view? More misery for people and children at the borders?
Will there be more partisan bickering and shouting, or more listening and compromising?
When the people who are dying from the virus are people that we know – our neighbors and friends and members of our family; and even people that we don’t particularly like – will we learn to temper our tempers? Will we realize that our animosity was ill-conceived? That we should have listened, rather than shouted? That community is more important than tribalism?
Oddly, it seems to us today that the community has been remarkably more generous to less fortunate people who are on the front lines of misery when jobs are lost, medical care is rationed, and there is no money for rent or food. It is the government that more often seems to be exploiting the virus: consolidating power in one party, limiting civil rights in the name of restoring order, attacking the opposition as perpetrating a hoax, or somehow causing the misery that is all around us; putting the Constitution on hold, as if it has no place in our country during an emergency. Even the threats that are not directly voiced by the government, like threats directed at Dr. Fauci: Are these threats not the inevitable consequence of our elected leaders calling science a hoax, the implicit denunciation of the scientists?
During the pandemic, laws are being passed that prohibit all abortions. Republican legislators are denouncing the idea of allowing voters to cast their ballots by mail (claiming that this would foster fraud, while admitting privately that permitting voting by mail would endanger conservative candidates’ chances of winning). And the border? Don’t get us started. No doubt soon we will be hearing about the necessity of a border wall in light of the national emergency and the need to further demonize people seeking refuge in this country.
Today we must rely on scientists, doctors, health care providers, to extricate us from this mess. But when their job is accomplished and their sacrifices have been made, it will be the responsibility of lawyers – prosecutors in local, state and the federal prosecutors’ offices; defense lawyers both public and private; civil rights lawyers; public interest lawyers; State AG office lawyers – it will be our duty to ensure that the equilibrium envisioned in the Constitution is restored.
French President Macron explained, “The day after will not be going back to the day before.” Perhaps it will be a phoenix, not a vulture that rises from the pandemic ashes.
by: Robin Loeb
The coronavirus pandemic has spawned a new rash of anti-abortion measures in states led by Republican governors. Indiana, Iowa, Mississippi, Ohio, Oklahoma and Texas have all imposed restrictions on abortion during the pandemic, arguing that the suspension of access to abortions preserves critically needed medical supplies. Those bans were challenged and federal district court judges in nearly all of those states granted injunctive relief against the orders, temporarily halting the bans. Judge Lee Yeakel, a district court judge in Austin, Texas (and a George W. Bush appointee) wrote that the United States Supreme Court spoke clearly when it ruled that there can be no outright ban on a woman’s right to a pre-fetal-viability abortion. Nevertheless, the Fifth Circuit Court of Appeals temporarily stayed the district court in a 2-1 decision, thus reviving the ban. The Fifth Circuit ruled that any abortion "not medically necessary to preserve the life or health" of the patient was banned as part of the state's edict suspending "non-essential" medical procedures amid the coronavirus pandemic. While a US Supreme Court decision on various recent restrictive abortion legislation is expected this summer, an emergency appeal involving the Texas ban could accelerate the timing of an abortion-related decision. More executive orders and more challenges are sure to follow. Meanwhile, Democratic governors, like Michigan’s Gretchen Whitmer and Pennsylvania’s Tom Wolf, did not include abortion in their state orders banning nonessential procedures, exposing them to criticism from anti-abortion groups.
Lost in most of the political analysis of this issue is the fact that very few medical resources are consumed by the standard abortion procedure. They are typically performed at clinics, not hospitals; complications requiring emergency room visits are rare; and, the equipment used is most often two pairs of gloves and a reusable face mask. Managing a pregnancy, even without complications, requires repeat visits, exams and tests at medical facilities, requiring gloves, gowns and masks.
Of course, there are always unintended consequences as a result of endeavors to manipulate the legal system. Certainly pregnancies resulting in babies with severe fetal abnormalities will ultimately tax an already exhausted medical system whose constituents do not enjoy universal healthcare and whose poorest participants are the least likely to be insured in a fashion that would provide the best care for the new mother and compromised infant. And in a put-your-money-where-your-mouth-is development, pro-choice groups are calling on states to waive some abortion restrictions pertaining to the provision of the abortion pill, asking that the pill be made available to women at their homes. This means women could take the abortion pill without traveling to clinics, thereby reducing the chance that either the patient or the healthcare worker would be exposed to the coronavirus, and also preserving the medical equipment supply that the abortion ban proponents use as the basis for their embargo.
by : Robin Loeb
As businesses across the country have been forced to close their doors because of the COVID-19 pandemic, the question of whether business interruption or civil authority insurance coverage is available to protect business owners against economic losses will become a fiercely litigated issue. The typical “business interruption” policy insures against loss resulting directly from interruption caused by physical loss or damage by a peril. Historically, those perils have included events like fires, hurricanes and other forces that cause obvious physical damage to property. There is, however, precedent finding that airborne contaminants, like ammonia contamination or the presence of E. coli bacteria, qualify as perils causing direct physical loss. Since COVID-19 is understood not only to be airborne, but to remain on surfaces for a period of time, a reasonable argument can be made that it constitutes property damage.
Separately, “civil authority” coverage applies when a civil authority orders that an insured property be closed. Governors and mayors across the country have restricted public gatherings, issued stay-at-home orders, and ordered restaurants to be closed, or limited to pick up and delivery options, triggering the argument that civil authority coverage applies. This kind of coverage was hotly contested in the courts when businesses suffered after the 9/11 attacks in New York City and at the Pentagon.
In what appears to be the first lawsuit pertaining to insurance coverage and the coronavirus, the Oceana Grill in New Orleans filed suit against Lloyd’s of London seeking a declaratory judgment that the insurance carrier must pay for its losses arising from the coronavirus pandemic. Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s of London, et al. (La. Dist. Court, Orleans Parish). A similar suit has also been filed against Hartford Fire Insurance Co. by the high-profile restauranteur Thomas Keller, owner of California’s French Laundry and Bouchon Bistro, in Napa County Superior Court. The decisions in these cases, which raise business interruption and civil authority coverage, will be important to watch as businesses across the country continue to struggle as a result of the virus itself and the government mandates issued as a result.