Constitutions, Science, and COVID: Does Constitutional Protection of Science and Health Predict Pandemic Outcomes?

—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

Those of us who study constitutions (especially in a comparative approach) are bound to wonder about the extent to which constitutional law might relate to the relative success that states have experienced in confronting the ongoing COVID-19 pandemic. Perhaps the matter is worthy of a deeper engagement, but I can provide at least a shallow investigation of it here. In the paragraphs that follow, I explore the extent to which giving constitutional standing to rights relating to health and science are connected to success in combating the pandemic.

I would argue that the responses to the pandemic implicate at least three rights that are found in many constitutions. The first and most obvious is the right to health or the right to healthcare. This is a very common feature of constitutions, and is included in 102 of the 192 constitutions for which we have data for 2020 from the Comparative Constitutions Project (CCP). The extent to which the inclusion of this right in a constitution impacts the lived reality of citizens has received significant attention from scholars, including in legal, economic, and medical journals, and most recently in a forthcoming book by Adam Chilton and Mila Versteeg. At a more practical level, a number of constitutions also provide for the right to healthcare that is provided by the government free of charge (41/192). One would expect this constitutional provision in particular to be associated with better outcomes in combatting the virus.

However, the varying responses to the pandemic also bring new relevance to a less-commonly studied right found in many constitutions: the right to enjoy the benefits of science. The history and functions of the right to enjoy the benefits of science is explored in a forthcoming article in the Max Planck Encyclopaedia of Comparative Constitutional Law by Cesare Romano and Andrea Boggio. They highlight the fact that this is one of the oldest international human rights, as it was protected in the American Declaration of Rights and Duties of Man (1948, Article XIII) and the Universal Declaration of Human Rights (1948, Article 27.1). Romano and Boggio suggest that the formulation that has been most linguistically influential is from the International Covenant on Economic, Social and Cultural Rights (1966, Article 15.1, b), which protects the rights of individuals “To enjoy the benefits of scientific progress and its applications.” As of 2020, the CCP finds this right in 21 constitutions, while a full 133 make some kind of mention of science or research.

There could be a number of reasons for drafters to include the right to enjoy the benefits of science in their constitution, and not all of these motivations would be linked to better outcomes in the management of a pandemic. Provisions on this topic are closely linked in many cases to academic freedom covering both teaching and research. In some cases, the right may be primarily aspirational, as a less-developed country seeks to improve the quality of education and economic achievement. In other cases, this could be a relatively-little considered incorporation of content from the ICESR. In the notable case of Germany, the provision on academic freedom (Article 5(3)) is one of the many articles in the constitution that seek to prevent a recurrence of the atrocities committed under National Socialism.

There are at least two broad connections between the constitutional right to enjoy the benefits of science and the probability that a state will have a successful response to the pandemic. The one which could be realized at this stage of the response is a commitment to invest in research and to make policy decisions that are based on the best available scientific evidence. A second connection will become relevant in some months, as vaccines and therapies are discovered. Here, I will just briefly note the potential relevance of earlier litigation on intellectual property and the costs of drugs used in the treatment of HIV/AIDS. The litigation in South Africa centred on the right to healthcare, and the constitution does not include the right to science. If the first connection is plausible, we should be able to find some statistical evidence already. The second potential connection may or may not be a source of litigation at some point in the future.

As a first attempt at evaluating the potential links between these constitutional provisions and outcomes in dealing with the pandemic, I ran several linear regressions using data on the pandemic from Johns Hopkins University. These data are updated daily, and I used the update from 26 July 2020. Data on constitutional content of course comes from the CCP, and I also added a few control variables from the World Bank.

The first outcome of interest is the prevalence of the virus in a state. While constitutions fall a long way down the list of relevant covariates for the incidence of the virus, there is a plausible connection between the place of science in a constitution and the willingness of the citizens to follow the best available medical or epidemiological advice to slow the spread of the infection. The public and political response to the pandemic (especially in the United States) has brought renewed attention to what Tom Nichols has called the “death of expertise” or what we might more charitably call the democratization of science. There is of course a great deal of variation both between and within countries, but it is notable that so many individuals have felt the impulse to question the official advice on things like social distancing or the wearing of masks.

We might expect a negative relationship between constitutional provisions on science and the incidence rate of the virus (confirmed cases per 100,000 persons). In fact, the right to enjoy the benefits of science moves in the expected direction, but is not significant. However, mentions of science in constitutions are actually associated with more COVID-19 cases (or at least more positive tests). Controlling for a number of other relevant factors, countries that reference science in their constitutions are likely to have an additional 286 confirmed cases per 100,000 people in comparison with those that do not. In a similarly counter-intuitive finding, countries that include the right to government provided healthcare also see more confirmed cases, with an added 220 cases per 100,000 people. These dynamics may have more to do with testing rates than the actual spread of the virus, but at least indicate that there is more valuable research to do in this area.

Perhaps the more important outcome is the case fatality rate (number of recorded deaths as a percentage of confirmed cases). In the models shown below, the right to enjoy the benefits of science and broader mentions of science have no predictive value. Interestingly, the right to healthcare and the right to healthcare provided free of charge point in opposite directions. While the coefficients for these constitutional provisions do not reach standard levels of statistical significance, we see that the right to healthcare has a positive association with the case fatality rate, while the right to free, government-provided healthcare has a negative association. The latter finding seems more intuitive, in that states that have made a commitment to publicly funded healthcare may do a better job in practice of caring for their citizens. While we cannot be certain of this relationship, the analysis here shows that after controlling for a number of other relevant factors, constitutional provisions on government-provided healthcare are associated with a 1 percent drop in the case fatality rate. Substantively, that is about a one-third reduction in mortality.

I would presume that despite our interest in constitutions, most scholars of comparative constitutionalism would expect to confirm the null hypothesis (no relationship). While the simple models I have presented here offer only the faintest glimmer of a reliable statistical association, they suggest that there may be a substantial link between how states treat science and health in the constitutions, and how they are able to respond to the pandemic. In particular, the ambiguous role of the right to healthcare provided by the government free of charge is interesting. On the one hand, it is associated with a higher incidence rate, but on the other, with a lower case fatality rate. And while the matter is beyond both my expertise and the scope of this post, it will be interesting to see whether any litigation over the cost and availability of vaccines or therapies relies on the right to healthcare or the right to enjoy the benefits of science.

Suggested citation: Alexander Hudson, Constitutions, Science, and COVID: Does Constitutional Protection of Science and Health Predict Pandemic Outcomes? Int’l J. Const. L. Blog, July 29, 2020, at: http://www.iconnectblog.com/2020/07/does-constitutional-protection-of-science-and-health-predict-pandemic-outcomes/