The COVID-19 pandemic has shown the rusty parts of public health law and opened the door to mass civil liberties violations, according to a well-known public health law expert.

"The balance between public health and civil liberties—you have seen the COVID pandemic just blow up that whole idea," said Lawrence "Larry" Gostin, professor at Georgetown University School of Law in Washington, D.C.

Gostin is one of the voices calling for updated public health laws to address issues revealed during the coronavirus pandemic. The effort to reform public health law to address COVID-19 is already underway. He and another public health law researcher—James Hodges of the Network for Public Health Law at Sandra Day O'Connor College of Law at Arizona State University in Tempe—agree that the law must be crystal clear about how to implement drastic measures, such as business closures and more.

During the COVID-19 pandemic, public health laws have performed pretty well when it comes to testing, contact tracing, isolation and quarantine of individuals, Gostin said. But he added the outbreak "has shown there are definitely gaps" between the law and reality.

"We have seen things no one could ever imagine: like total lock downs, bans on public gatherings, no church services, closure of businesses, quarantines against people going from one state to another state, how you deal with triage in hospitals, with scarcity," Gostin said.

He said public health law is silent on such measures, and the law needs to be updated with standards and an explanation of the correct way to institute those controls.

In the works

There's already one group working on updating the law.

The Uniform Law Commission, a 129-year-old organization made up of 300 lawyers, judges and law professors which drafts non-partisan model legislation for state laws, has announced the creation of three study committees that will examine legal issues related to the pandemic.

One of the committees will study state laws that grant authority to state governments to take actions like quarantines, business closures, collective purchasing and rules for medical practices. Another committee will look at ways to mitigate business disruptions during public health emergencies. It will consider topics like business interruption insurance and the use of force majeure clauses in contracts, among others.

The third committee will research how state governments operate during public health emergencies—how they suspend laws through executive action, and how they use remote meetings.

Tim Schnabel, executive director of the Uniform Law Commission, wasn't immediately available for comment.

Diane Boyer-Vine, legislative counsel for the California State Legislature, said the Uniform Law Commission first forms study committees that determine whether there's a need for a uniform law. If so, the commission next forms a drafting committee that has two years to draft the model law. It's then sent to the state legislatures for possible enactment.

"What we're doing at the study committee is deciding if there is actually a need for a uniform law," said Boyer-Vine, the chairwoman of the committee on public health emergency authorities. "We really haven't decided whether we are going to recommend that."

Existing public health law at the federal, state and local levels do grant governments the legal authority to implement social distancing measures, but the law still needs an update because of COVID-19, said Hodges, of The Network for Public Health Law.

"In the social distancing arena, we have the power to do what has been done, but it hasn't been spelled out very well, in a lot of federal and state and local laws," Hodges said.

If the law better explains social distancing government actions, it could prevent some litigation from occurring, he said.

As one example, there's been litigation to challenge the distinctions between essential businesses that governments allowed to stay open, and nonessential businesses that were forced to close down, Hodges explained. Another theme in COVID-19 litigation deals with religious institutions that sued because the government banned them having from in-person gatherings.

"Those are the types of issues that when you lack uniformity and clarity and strong justification for how to draw distinctions, you find yourself in the equal protection quagmire," he said.

Read more: Safety Versus Liberty: Litigators Push for Constitutional Rights Amid COVID-19 Restrictions

Texas public health law expert Allison Winnike said she feels that current state laws are written broadly enough to cover social distancing measures, like lockdowns, business closures and quarantining people coming from other states.

"It's more open-ended than prescribed in Texas, which I think is good because that makes the law more timeless," said Winnike, a former adjunct professor at the University of Houston Law Center and former director of its Health Law and Policy Institute, who wrote a Texas public health law bench book, "Control Measures and Public Health Emergencies."

But Winnike, now president and CEO of The Immunization Partnership in Houston, said that public officials at all levels of government did not execute the law like they should have. She said she understands that officials face political considerations and public backlash. But it's key to educate them about their powers under public health law and their duties to the public, Winnike said.

She said, "That's something we are dealing with: trying to protect the public health, and at the same time, keeping things as normal as we were used to being. It's hard to grapple with such a drastic change when a global pandemic knocks on our door."