Indiana Governor Eric Holcomb issued Executive Order 20-18 extending and clarifying the state stay-at-home order, including establishing an enforcement team for noncompliance. The Hastings Center has offered an expert-crafted guidance document for journalists, policymakers, and educators discussing the ethics of using and enforcing nonpharmaceutical interventions (NPIs) during pandemics.

Given the lack of treatment and pharmaceutical preventive measures available to address Coronavirus, governments must rely upon the widespread implementation and acceptance of nonpharmaceutical interventions such as “shelter in place” or “stay at home” orders, as well as quarantines of those who are reasonably suspected to have been exposed to the virus, and isolation of those known to be infectious. It is generally understood that, in the face of an epidemic, the state’s use of these “police powers” grant states the legal authority to impose NPIs, even if doing so might infringe upon individual liberties, such as religious rights, freedom of travel, and bans on gathering.

The vast majority of U.S. residents are now living under a stay at home (or similarly named) order. The means through which such orders are enforced, however, can affect not only the effectiveness of the measures, but also the public’s trust in government’s use of authority in extraordinary times. Officials must attempt to find the correct balance between protecting the common good and minimizing social and economic consequences.

Indiana Executive Order 20-18 extends the state’s stay-at-home order, and also establishes mechanisms through which to enforce the order. Workplace safety violations will be enforced by the Indiana Occupational Safety and Health Administration. An Enforcement Response Team, led by the head of the Indiana Alcohol and Tobacco Commission, and comprised of state law enforcement from agencies other than the Indiana State Police who are sworn to enforce any law of the state, will make up the enforcement response team. Action will be taken in conjunction with the state health department and local boards of health. The process for enforcement under this order (which does not include oversight of in-person dining) is laid out as follows:

1. Issuing a verbal order to cease the unsafe practice so an offender has an opportunity comply;
2. If a business entity fails to comply with a verbal order, ISDH shall issue an order to cease the unsafe practice;
3. If a business entity continues operation in an unsafe manner despite an order to cease and desist, the ISDH shall issue an order to close the business entity;
4. If an order to close a business is issued, the business shall be reported to the Secretary of State and to any relevant licensing, permitting, or certifying board, commission or other entity for consideration of revocation proceedings; and
5. If an order to close a business is issued, the matter should be considered for referral to the local prosecuting attorney.

The Executive Order additionally may be enforced by State and local law enforcement to the extent set forth in Indiana law; including the Emergency Disaster Law. Knowing violations of the Executive Order is a class B misdemeanor, punishable up to 180 days incarceration and a fine of up to $1,000.

Over the past week, numerous articles have been published from around the country describing circumstances where voluntary compliance with state NPI orders has been requested, states or local jurisdictions have levied, or threatened to levy, significant fines, or police have issued citations or made arrests for NPI-related violations.

Past experience with pandemics shows us that during such times of crisis, public health goals often can be achieved through the use of voluntary measures, according to the Hastings Center, one of the nation’s most respected bioethics organizations. However, a rise in pandemic severity can put additional pressure on government officials to “do something,” increasing the likelihood that the agency will seek to impose more forceful and/or mandatory restrictions.

The Hastings Center offers the following guidance on implementing mandatory NPI in an ethical and efficacious manner. It recommends holding certain principles as ideals:

• Mandatory NPI must rest on a foundation of public health science, coordination, and cooperation, not law enforcement.
• Interventions such as quarantine or school closures must meet the harm principle – that these actions are needed to prevent individuals from causing reasonably foreseeable harm to others. 
• Mandatory NPIs should conform to ethical principles requiring that “coercive public health measures be legitimate, legal, necessary, non-discriminatory and represent the least restrictive means appropriate to the reasonable achievement of public health goals.”
• Finally, the principles of reciprocity, transparency, nondiscrimination, and accountability—as well the right to due process to challenge mandatory NPI—must be enforced.

The Colorado Attorney General’s Office has published a Frequently Asked Questions page about the enforcement of public health orders that states this approach well: “Under [state] law, counties and local public health agencies have the authority to administer and enforce an order. The State is recommending that local law enforcement and/or local public health agencies first reach out to the entity to seek voluntary compliance.”

As laid out in the new Indiana Executive Order, the first lines of enforcement to ensure business and personal adherence to state policies should be through education of those affected by the order, followed by requests to come into compliance by public health officials, and only later should more punitive actions be considered. Pursuit of voluntary adherence to public health NPIs whenever possible is also recommended as a way to minimize violations of civil rights and/or the indiscriminate use of law enforcement to achieve public health goals.