Civil Liberties Never Sleep: The ACLU in the Pandemic

The COVID-19 pandemic has closed down many businesses, but the work of preserving civil liberties and civil rights continues, as essential as ever. Reports of courts closing down can be misleading. While public trials that require jurors and in-person testimony have been suspended, most courts and lawyers can do their work remotely. The filing of legal briefs continues, and oral arguments and hearings are being held remotely. The work of securing justice continues.

At the ACLU, our most immediate focus has been on civil liberties and civil rights issues arising from the government’s response (or lack thereof) to the pandemic. We and our affiliates have filed nearly 40 lawsuits across the country on a range of civil liberties and civil rights issues. Our top priority right now is to secure the release of individuals who held in government detention centers, jails, and prisons. Detention should not be a death sentence, and most prisons, jails and detention centers cannot ensure that those in their charge are held under the social distancing guidelines the CDC urges all of us to follow. Many are held without posing any danger to the community, and should be released if they cannot be held safely.   

So far, we have filed over 13 immigration cases, and another 16 cases focused on prisons and jails. Through our litigation and advocacy, we have secured the release of over 10,000 individuals from prisons and jails, and dozens of immigrants from the detention centers. In each one of these instances, we may have very well saved human lives.

We have also been pushing back against states that have exploited the pandemic to further their anti-abortion agendas. In Alabama and Ohio, we obtained court orders barring state officials from denying people access to abortions during the crisis and following an ACLU affiliate lawsuit in Iowa, the government walked back its threat to issue a blanket abortion ban. 

Because we must preserve our democracy even as we engage in social distancing, we’ve been advocating — and suing — to expand access to no-excuse absentee voting. This crisis may well still be with us in November, and we are committed to ensuring that everyone has the right to vote and that they do not have to risk infection to exercise the franchise. We’re in court in Georgia, Montana, Ohio, and Texas to expand absentee voting. 

We are monitoring state public health guidelines for the allocation of scarce ventilators to ensure that they do not authorize discriminatory denials to people with disabilities. And we have questioned plans to use location data from our cellphones to address the pandemic in ways that would not be effective and would impinge on rights. We have also raised concerns about the disproportionate impact that COVID-19 has had on Black and brown communities — and the consequent need for governments to respond. We are just as committed as the rest of the country to defeating the virus and limiting its spread in the meantime, but we know from experience that in times of crisis, governments often overreach. 

But even as we focus on pandemic-specific challenges, our ongoing work to defend civil rights and liberties continues. This past week, we filed a brief in the Supreme Court supporting a challenge to President Trump’s order authorizing businesses with religious or moral objections to deny insurance coverage for contraception to their female employees. Our brief reminded the court of a long history — going back to slavery — of religious justifications for discrimination on the basis of race and sex, and urged the court not make that mistake again. If the administration’s policy is allowed to stand, millions would lose coverage — as well as the ability to make crucial decisions about their lives, their families, and their economic futures — because employers and universities can impose their religious beliefs on their employees and students.

We are preparing for a trial in Florida challenging the legislature’s effort to gut Amendment 4, which sought to end felony disenfranchisement in that state. We obtained a preliminary ruling that the state’s effort to deny people the right to vote if they haven’t paid all their fines, even where they cannot afford to pay, is unconstitutional. But we are seeking final relief well in advance of the November presidential election.

In Idaho, we are preparing a challenge to a new law that bars transgender students from competing in college or high school sports on the teams associated with their gender identity — even in the case of collegiate athletes who are eligible to compete under the NCAA's guidelines that have been in effect since 2011. We expect rulings any day in our Supreme Court cases arguing that firing workers because they are LGBTQ violates federal civil rights law. And we are beginning to brief a new Supreme Court case, to be argued next fall, in which Catholic Social Services asserts a constitutional right to obtain a government contract from Philadelphia to certify families for foster care parenting — even though Catholic Social Services refuses to certify same-sex couples, in violation of Philadelphia’s nondiscrimination rules. 

We continue to fight Trump’s use of an unlawful emergency declaration to divert funds to build his border wall, after Congress repeatedly refused to appropriate funds to support that precise project. We have been successful in the lower courts, but each time the administration identifies another pot of money to unlawfully reallocate to the wall, we are back in court. We’re suing to get access to the Trump administration guidelines on use of lethal force abroad, which are secret but reportedly have been substantially loosened from the guidelines that President Obama put in place. And our work to ensure justice in military trials at Guantanamo continues, nearly two decades after the first detainees were brought there. 

Women’s labor keeps our country running, now more than ever. We are therefore forging full steam ahead in our cases on behalf of workers who were unfairly pushed out of the workforce because of their pregnancies. We are in active discovery in a case against AT&T Mobility, the company’s wireless division, for its so-called “no-fault” attendance policy, which penalizes workers for absences no matter the reason, even if it is because of pregnancy and even if it is excused by a doctor’s note. And we are preparing for mediation in our twin class action cases against Frontier Airlines on behalf of pilots and flight attendants who were banned from flying because of their pregnancies — even when it was medically safe to do so — and sent home without any way to earn a paycheck.

The war on immigrants has not let up with the pandemic, and neither has our work defending the rights of immigrants from Trump’s xenophobic policies. This month, the U.S. Court of Appeals for the Ninth Circuit affirmed our injunction against Trump’s effort to detain automatically persons seeking asylum — a victory made all the more important by the COVID-19 risks that such detention now poses. On March 25, the Montana Supreme Court ruled for us in our challenge to Montana state officials’ authority to arrest immigrants for federal immigration violations. And we are actively briefing our challenge to Trump’s order denying asylum to immigrants from so-called “safe third countries” like Guatemala if they haven’t first applied for asylum in the very country they are fleeing because of fear of persecution there. 

On April 9, we filed a first-of-its-kind lawsuit challenging Baltimore’s use of high tech aerial surveillance to monitor its citizens without a warrant or probable cause. Two years ago, we convinced the Supreme Court that the government had to obtain a warrant to use cell phone location data to track suspects. We are arguing that they can’t avoid the warrant requirement by using high-tech aerial surveillance to do the same thing. 

Like so many others in this pandemic, our attorneys, paralegals, and other staff are all working remotely, from their home computers, or at laptops perched on their kitchen tables. But thanks to the Internet, the work continues, as lawyers file briefs, conduct discovery, and argue cases online. Judges are similarly participating online from their homes. The pandemic has upended our daily lives in countless and unimaginable ways. But the need to defend our country’s most fundamental values, and its most vulnerable populations, cannot take a respite. We continue to fight for you every day — virtually, but in real time and with real-world effects. Civil rights and civil liberties do not evaporate in times of crisis, but they will be preserved only with our — and your — continued engagement.