Resource Explains Litigation Challenging State Stay at Home Orders

A new KFF brief provides an overview of the legal basis for state stay at home orders in response to the coronavirus pandemic, as well as current legal challenges to these orders. Stay at home orders and other mandatory social distancing measures have received broad public support, but also have drawn some public protests.  Different stakeholders have brought at least 20 legal challenges claiming these orders violate the Constitution or state law.

Most courts to date have generally allowed stay at home orders to remain in place to protect public health, despite acknowledging the restrictions on individual rights such as free speech, peaceful assembly, travel, and free exercise of religion. In several states including Wisconsin, the legislature has challenged the Governor’s authority to issue a stay at home order. The Wisconsin Supreme Court is the only court to strike down nearly all of the provisions of a stay at home order.  While the current litigation may be resolved when states start to re-open, the general issue about the scope of government authority to limit individual rights in a public health crisis is likely to return to the courts as states may re-institute stay at home orders if there are more COVID-19 outbreaks in the coming months.

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