by Federico Fabbrini*
ABSTRACT
The article compares the protection of human rights during the pandemic in the European Union (EU) and the United States (U.S.) by analyzing judicial review of Covid-19 measures. In particular, the article searched all available Covid-19-related rulings delivered between the start of the pandemic and 30 June 2023 by state and federal supreme courts in the U.S., and top national and supranational courts in the EU and developed an original dataset of over 300 cases. This provides the first-ever systematic analysis of judicial review of pandemic measures by apex courts in consolidated constitutional democracies. The article advances three hypotheses, based on judicial review of emergency measures in counter-terrorism contexts, and tests their applicability during the pandemic by considering cases dealing with freedom of religion, freedom of movement, and personal liberty and autonomy. The article argues that a significant transatlantic convergence exists on how top courts have reviewed Covid-19 measures imposing a prohibition (non facere, in Latin), such as church closures and lockdown: both in the EU and the U.S., courts have initially deferred to governmental decisions, but tightened their scrutiny over time and occasionally invalidated them, particularly when they appeared overblown or disproportionate. In contrast, the article highlights a transatlantic divergence in the judicial review of Covid-19 measures imposing a duty (facere, in Latin), such as masks and vaccines mandates, when they became available: while EU courts have systematically upheld their legality, these have been opposed in the U.S. As the article suggests, this transatlantic divergence can be explained by the greater politicization of public health in the U.S. than in the EU, and the growing lack of deference towards, and trust in, scientific expertise in the U.S. The article therefore reflects on the consequences of Covid-19 for the balance between risks and resilience in constitutional democracies.
* Full Professor of Law, Dublin City University
