New Article: Michele Goodwin & Erwin Chemerinsky, No Immunity: Race, Class, and Civil Liberties in Times of Health Crisis, 129 Harv. L. Rev. 956 (2016). Abstract below:
This Essay takes up the metaphor of the polluted body, its menacing effect on society, and what this metaphor means for law. It turns to civil liberties in times of health crisis in light of recent immigration debates and the United States’ panic about Ebola. We argue that historically, fears of contagion and infection were as much rooted in racial and class fear and animus as genuine threat of health. For example, many people of color and vulnerable minority groups have been caused great harm in the name of advancing and protecting the public’s health. Unfortunately, during such periods in American history, too frequently courts have failed to protect basic civil liberties, and people have suffered as a result. The Supreme Court sanctioning forced sterilizations of poor Americans provides a powerful example of government abuse of power in this regard, but sadly it is one among many forgotten or lesser known cases even among lawyers. Indeed, children, men, and women have been interned, sterilized, banned from entering the United States, detained, subjected to horrific human research, and otherwise injured by government abuse of power under the cover of protecting or promoting health.
As we explain, the relationship between public health, on the one hand, and race, poverty, and ethnicity discrimination, on the other, is neither new nor distinctly American. In the United States, the intersection between minority rights and public health has a long and shameful history, dating back hundreds of years. On close inspection, the metaphor of the polluted body and its menacing effect in American society persists, no doubt due to its origins rooted so long ago in American slavery, “Yellow Peril,” and early twentieth-century anti-immigration policy.
When analyzed from a distance, law’s vulnerability to prejudice packaged as public health concern crystallizes. For example, judges may make poor judgment calls conditioned on spurious or misinterpreted science, politicians may manipulate the public’s fear for political gain, even scientists and doctors may conflate or exaggerate data, and consequentially, civil liberties may be compromised and constitutional rights trampled. We take up these issues through our review of Eula Biss’s On Immunity.