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I am wondering if Americans have a constitutional right to decline being tested for the COVID-19 virus.

Consider a scenario in which the state police create a checkpoint on an interstate highway and begin administering a COVID-19 screening test on every person in every car that goes through this checkpoint. Do Americans have a constitutional right to decline being tested and be allowed to pass through this checkpoint, or does a national crisis/emergency negate an American's constitutional rights and thus every person must comply with being tested?

EDIT

To help clarify my inquiry, what I particularly would like to know is if you are directed to exit your vehicle by a state trooper at this highway checkpoint so a doctor/nurse there can administer a test on you to see if you have COVID-19, can you decline to exit your vehicle and also decline undergoing this medical test? Do Americans have a Constitutional right to decline complying with such a directive?

  • State of emergency, martial law? – paulj Mar 31 at 14:23
  • Your question is better phrased as whether the state has the authority to require every driver and passenger to be tested. – paulj Mar 31 at 14:27
  • @paulj, well, if it comes to that I imagine that everyone must comply with government directives, but I’m interested in how things stand today, that is if such a checkpoint was created today somewhere in the United States. – user255577 Mar 31 at 14:28
  • @paulj, I’m not sure if I need to change it because I’m focused more on constitutional rights rather than states laws. – user255577 Mar 31 at 14:35
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    @user662852, I'm not sure. I recommend that you post that as a new question in Law SE. – user255577 Mar 31 at 21:18
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It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers).

The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched.

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  • those are interesting points you bring up, yet what I am most curious about is in a scenario in which the state trooper stops your car via the highway checkpoint and then says something to you like "All of you in this car will now be physically examined and tested for signs of having COVID-19. Please come out of the vehicle.". At this point, can you tell the state trooper "No, you will not examine me and my passengers because doing so violates our constitutional rights. Please allow us to travel on."? – user255577 Mar 31 at 18:25
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    That's a possible response. Or, "I do not consent to this search" – it is not necessary that you persuade an arresting officer regarding the constitutionality of their actions. I think you do have to say something, i.e. silence and certainly cooperation can be interpreted as consent. Consent makes a search reasonable. Again, the stop has to be legal, and the search has to be legal. – user6726 Mar 31 at 18:45

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