Fact check: Is it constitutional to arrest abortion protesters who violate coronavirus orders?

Editor’s note: Read more about our new fact-checking project and how we do it.

The issue: Anti-abortion protesters have been among the people arrested in North Carolina for violations of the state’s stay-at-home order and ban on mass gatherings.

Why we’re checking this: The protesters’ arrests made national news, leading a high-profile Republican politician to say the arrests were unconstitutional.

What you need to know: In the last week, police in multiple North Carolina cities have arrested anti-abortion protesters who were charged with violating the coronavirus-related order that bans mass gatherings.

Arrests of abortion protesters in Greensboro led to the protesters suing city officials there. A few days later, several protesters were arrested at an abortion protest in Charlotte, too. After the Charlotte arrests made national news, Republican Sen. Ted Cruz of Texas said he thought the protesters’ rights had been violated, The Charlotte Observer reported.

“This is an unconstitutional arrest,” Cruz tweeted. He added that they have a First Amendment right to protest, and that they were being “fully consistent (with) public safety.”

Eyewitness accounts differ as to whether they actually were following coronavirus public safety guidelines. But the more interesting question from Cruz’s tweet is whether the arrests violated the protesters’ First Amendment rights.

While the evidence seems to contradict Cruz’s claim, it’s impossible to say with absolute certainty whether he’s right or wrong.

It’s a matter that courts may eventually take up. But there’s much legal precedent for state and local governments to enforce emergency orders.

Lawsuits ‘doomed to failure’?

A key distinction is that the protesters were not arrested for protesting, but for violating Gov. Roy Cooper’s statewide “stay-at-home” order banning gatherings of more than 10 people.

And legal experts agree that the police have the right to enforce the stay-at-home order, as long as they don’t do so in a discriminatory manner.

“Lawsuits challenging COVID-19 quarantines and restrictions on public gatherings may be doomed to failure,” the American Bar Association wrote in March.

While we don’t know what exactly courts will decide in the specific case of the Charlotte protesters, “I think what people might be thinking about is, ‘Well, don’t I still have constitutional rights? And can a state statute take away my rights?’” said Shea Denning, a criminal law expert at the UNC School of Government and the director of the N.C. Judicial College.

The answer, she said, is yes to both: A state of emergency doesn’t completely take people’s rights away, but it does let the government do things that might otherwise infringe on people’s rights.

“Courts have recognized that in these kinds of emergency situations the executive branch has responsibility for — normally it’s keeping the public safe, or public order — but in this case it’s protecting public health,” Denning said.

It is possible for a government to go too far, she said. But there’s no easy, clear-cut test to determine where the line is.

Speaking in general terms, and not specifically about the abortion protesters, Denning said that in controversies it will be up to courts to ask the question, “Are these restrictions necessary for preserving public health?”

Abortion protests ‘essential’?

Cruz’s office did not reply to a request for comment. But in another tweet, he said Cooper’s order seemed hypocritical because it gave exemptions to health-care businesses, including abortion clinics, but not to anti-abortion protests.

“IF providing abortions is essential, then peacefully giving pregnant women counseling on alternatives to abortion is ALSO ‘essential,’” Cruz tweeted.

While there’s some skepticism about the necessity of the stay-at-home orders that were used to justify the arrests in North Carolina, much of that skepticism comes from the political right. All states that still haven’t issued stay-at-home orders are led by Republican governors.

But a lawyer for the American Civil Liberties Union — which is often associated with more left-leaning causes, including abortion rights — also recently wrote that stay-at-home orders are “aggressive measures almost never utilized outside wartime.”

“While the coronavirus is no doubt frightening, so too is massive state power wielded in the name of emergency,” wrote the ACLU lawyer, Ahilan Arulanantham, for the website Just Security.

Not arrested for protesting

Under Cooper’s stay-at-home order, violations are punishable by a relatively minor criminal conviction of a class 2 misdemeanor. For most people, that can carry a punishment of community service, probation and/or a fine, although it could mean jail time for people with lengthy criminal records.

Denning said she read Cooper’s order and did not find any reason to believe that any of its requirements were a stretch from a legal point of view.

“There is clear statutory authority to enact these prohibitions,” she said.

In the case of the Charlotte protest arrests, police have said they arrived and saw a large crowd, in violation of Cooper’s order, so they asked everyone to leave. Most did, and didn’t get in trouble, but 12 people refused to leave and were given a written citation.

A few of them left, but eight people still remained and were arrested.

They were not arrested specifically for protesting, which is a constitutionally protected act, but for violating the stay-at-home order. And they’re not the only arrest — Charlotte police also recently arrested someone at a spa that was still open despite Cooper’s order to close such businesses.

Denning said, in a situation like this, it’s up to local police agencies or even individual officers to determine how aggressive to be in pursuing violations. But that’s also the case with plenty of other types of crimes, even in normal times, she said.

“When you have different law enforcement agencies headed by different people, you’re going to have different philosophies,” she said. “That’s nothing new.”

The protesters, the person at the spa and all others who have been arrested around the state for violating the order are — like anyone accused of any crime — innocent until proven guilty.

Not just the First Amendment

In dealing with pandemics or other emergencies, the government does have the power to put into place new laws that might temporarily restrict people’s constitutional rights.

For instance, while the U.S. typically allows people to travel in and out of the country freely as long they have the right documentation, President Donald Trump issued travel bans on China and Europe in an effort to stop the spread of coronavirus.

Although some public health experts have questioned their effectiveness, the bans have not been challenged as illegal.

Similarly, America doesn’t only guarantee the right to international travel but also interstate travel. The U.S. Supreme Court ruled as early as 1823 that people have a constitutional right to travel between states — a fundamental concept that still stands today.

But the government can override those rights by using quarantines to restrict travel between states “to prevent the spread of communicable diseases between states,” the CDC notes.

And people who violate a quarantine order can be arrested and charged with a crime, similar to people who violate a stay-at-home order.

Our sources:

North Carolina stay-at-home order, March 27, 2020

Just Security, April 6, 2020, “How Much Liberty Must We Give Up? A Constitutional Analysis of the Coronavirus Lockdown Proposals”

NPR, March 17, 2020, “Self-Isolation Orders Pit Civil Liberties Against Public Good In Coronavirus Pandemic”

Nolo.com, “Emergency Powers and Citizen Rights During the Coronavirus Public Health Crisis”

Charlotte Observer, April 4, 2020, “Sen. Cruz: Charlotte abortion protest arrests under NC stay-at-home order ‘unconstitutional’”

Spectrum News, April 6, 2020, “Experts Weigh In on Whether Protesters Violated Stay-At-Home Order at Abortion Clinic”

Greensboro News & Record, April 6, 2020, “Abortion protesters, Greensboro city officials battle over ‘stay at home’ enforcement”

National Conference of State Legislatures, “State Quarantine and Isolation Statutes”

CDC legal guidance on quarantines

CDC international travel ban, March 20, 2020: “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists”

Nebraska Law Review, 1975: “The Right to Travel: In Search of a Constitutional Source”

This story was produced by The News & Observer Fact-Checking Project, which shares fact-checks with newsrooms statewide. It was edited by Politics Editor Jordan Schrader and Managing Editor Jane Elizabeth. Submit a suggestion for what we should check, or a comment or suggestion about our fact-checking, at bit.ly/nandofactcheck.