Strategic litigation to advance a cause or ideology can play an important role in shaping public discourse relevant to health. It was first utilized as a legal project to help expand rights for marginalized groups, especially by the National Association for the Advancement of Colored People (“NAACP”). Such litigation is an important tool for developing legal protections and impacting the public’s and court’s understanding of an issue, as was the case with the HIV movement. Recently, conservative political projects have adopted these same tools with considerable success, but to limit structural mechanisms favoring marginalized groups or the public’s good. Unlike the obesity epidemic that accumulated lawsuits against fast food companies to impose liability for the adverse effects their products caused consumers, the COVID-19 pandemic spurred many lawsuits in the opposite direction. Galvanized by what they characterized as an overreach of governmental authority, lawyers and judges aggressively took on public health mandates at the local, state, and federal levels, ultimately recasting America’s future battles against contagion. 

It is important to recognize that strategic litigation is both risky and resource intensive. As such, legal challenges to pandemic restrictions were more likely to be brought by individuals with greater resources or who were more likely to be white, leading to situations where loosened restrictions disproportionately impacted communities with pre-existing health inequities. While lawyers and judges themselves may not directly spread communicable diseases, their zealous representation or advocacy can inadvertently contribute to the spread of these diseases. By influencing policies, behaviors, and access to healthcare, particularly in cases related to public health emergency orders and vaccination laws, lawyers and judges cause harm to racially marginalized communities under the guise of neutrally advancing constitutional claims. For example, refusing to wear a mask or helping overturn mask mandates during a pandemic known to disproportionately kill Black and Latinx populations, makes masks not only politicized, but also racialized to further dangerous division. Hence, understanding the role of lawyers and judges in advancing ideological interests to the detriment of the public’s health is critical, as legal precedents that weaken disease prevention efforts were ultimately created during the COVID-19 pandemic.

Part I will provide a high-level overview of the COVID-19 pandemic landscape, highlighting the initial pandemic response, the government’s power to fight infectious diseases, and the racial lens from which to view the attitude towards minimal COVID-19 protections in certain states. Part II will cover standing law and lawyering to advance a cause, focusing specifically on pandemic-related lawsuits and the reasons implored by courts to advance or dismiss a case. Part III will explore the ethical implications for lawyers and judges who helped facilitate litigation aimed at diminishing public health efforts, looking at the Model Rules of Professional Conduct and Model Code of Judicial Conduct. Finally, Part IV will address how weaponizing litigation to assert ideologies that diminish the U.S. public health system and trust in the legal profession on the pretext of strategy to hold governments accountable is an ethical issue requiring a remedy. In particular, it will propose how lawyers and judges who engage in such practices should be treated and whether the common law tort of negligence may provide a cause of action against these professionals who threatened to sue or who facilitated the actual removal of public health protections. 

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