People around the world continue to grapple with the COVID-19 pandemic, the most extreme public health emergency in a century. This Top Ten discusses the public health law framework in the United States and summarizes some recent developments in the law arising from the COVID-19 pandemic.
1. Neither Contagious Disease Outbreaks, or Legal Challenges to the Public Health Measures Used to Combat Them, are New in the United States
Restrictive public health measures to combat infectious diseases are not new. But prior to the current COVID-19 pandemic, most Americans had no memory of past pandemics and little personal experience with public health measures to combat them, such as quarantines, isolation, restrictions on gatherings, and vaccine mandates. However, a number of courts around the U.S., including the U.S. Supreme Court, reviewed public health measures introduced during prior outbreaks of disease. Their decisions in these cases show that American law long has recognized the authority of government officials, typically state authorities, to protect the public health and address public health emergencies.
2. The Public Health Framework in the United States Creates Conflicting Rights
Government measures to protect the public against disease exposes fundamental tensions between the public health and individual rights. Because of the need to act swiftly to protect the public from an outbreak of contagious disease, individual rights may not be the chief concern of government officials trying to prevent the spread of a contagious and dangerous diseases. Yet public health strategies to combat disease do raise constitutional issues. People forced into quarantine or isolation may object to interference with their personal physical liberty or their social or business activities. People forced to accept testing, treatment, or prevention methods—such as those found in various state vaccination mandates—may object to interference with the right to control their own bodies and medical decisions. People may face what they believe to be restrictions on their religious freedom. And their privacy rights may be impacted by public health officials sharing personal health information.
3. The U.S. Supreme Court's 1905 Decision in Jacobson v. Commonwealth of Massachusetts Serves as the Cornerstone of the American Public Health Framework
The U.S. Supreme Court decided the seminal case on state power to respond to a public health crisis in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). There, the Court affirmed the constitutionality of a state statute authorizing local health boards to require residents to be vaccinated against smallpox or pay a five-dollar fine. The Court explained that the authority to respond to a public health crisis must be “lodged somewhere” and it is not unusual or unreasonable to vest it in government officials. The Court emphasized the utilitarian aspect of rules protecting the many at the expense of the few and found that if the choice is between two reasonable responses to a public crisis, it should be left to the political branches to decide. The Jacobson decision thus establishes a high level of deference courts are to give to state actions to address public health matters, and this standard has served as the foundation for judicial review of public health measures since it was decided over 100 years ago.
4. Courts in the United States Have Upheld Significant Public Health Restrictions Enacted to Prevent Contagious Disease
In accord with Jacobson, courts analyzing constitutional limits on public health measures to combat contagious diseases long have upheld significantly restrictive measures. In the first half of the twentieth century, a boatload of healthy people could be kept from landing in a quarantined city. Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U.S. 380 (1902). A woman with leprosy who was only slightly contagious could be confined to her home and then forced to move outside city limits. Kirk v. Wyman, 65 S.E. 387 (S.C. 1909). A potentially lifelong quarantine of a typhoid carrier was overturned only because the regulation had been enacted by an individual rather than the authorized board. Illinois ex rel. Barmore v. Robertson, 134 N.E. 815 (Ill. 1922). Individuals with tuberculous could be confined to sanitariums until cured. Moore v. Draper, 57 So. 2d 648 (Fla. 1952). A woman traveling from an historically smallpox-infected area in Stockholm without proof of vaccination could be quarantined for fourteen days, even when there had been no cases of smallpox in Stockholm while she was there. United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (S.D.N.Y. 1963). Generally, courts have found that the more contagious or deadly a disease, the more compelling the government’s interest in taking swift, restrictive action to address it.
5. Public Health Law in the United States is Well-Established, but Somewhat Outdated
While the existing public health legal framework created by the cases discussed above continue to guide public health officials and the courts today, the coronavirus (and the vaccines for it) are new. The novel nature of COVID-19, coupled with the substantial developments in medicine and increases in interstate and global travel since many of the court decisions regarding public health were issued years ago, may yield some changes regarding the scope of and limits to state public health powers.
6. Public Health Measures to Address COVID-19 in the United States Have Led to Public Disagreement, and Lawsuits
State public health officials across the country have been implementing various measures to try to stem the spread of COVID-19. Those measures, in turn, have resulted in lawsuits challenging them. The nature of the measures and lawsuits varies, and many of the cases have not yet been concluded. For example, there has been a significant amount of litigation recently about various federal COVID-19 vaccine mandates, including the U.S. Department of Labor's Occupational Safety and Health Administration COVID-19 vaccine mandate for certain employers, the U.S. Department of Health and Human Services' mandate that federal healthcare workers be vaccinated against COVID-19, and the U.S. Secretary of Defense's COVID-19 vaccine mandate for military personnel. These cases for the most part involve narrow challenges to specific federal mandates and not state public health powers generally. Recent cases challenging actions taken by state public health officials best highlight recent developments in U.S. public health law arising out of the COVID-19 pandemic.
7. State COVID-19 Occupancy Limits Appear to be Disfavored by the U.S. Supreme Court
Many state and local health care officials enacted occupancy restrictions and other public health measures to try to stem the spread of the disease. Some of these rules promptly were challenged in the courts.
In S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), the U.S. Supreme Court denied an application for emergency injunctive relief in a challenge brought by a number of churches to a California public health order closing certain public spaces. In a concurring opinion, Chief Justice John Roberts quoted Jacobson and recognized the U.S. Constitution entrusts the safety and health of the people to politically accountable state officials. He stated that when public officials “act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad” and their decisions “should not be subject to second-guessing” by the judicial branch.
But in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), the Court reversed course after the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett. The Court struck down a New York executive order restricting attendance at certain religious services because the New York order impinged on the free exercise of religion. The Court reasoned that although “[m]embers of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area … even in a pandemic, the Constitution cannot be put away and forgotten.” The Court also revisited its decision in South Bay United and enjoined California from barring all indoor religious services. S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021). In a concurrence in that case, Chief Justice Roberts stated the deference to which public officials are entitled on public health matters "though broad, has its limits."
8. Some State Emergency Orders to Combat COVID-19 in the United States Have Been Rejected by the Courts Due to Separation of Powers Concerns
Some of the many emergency public health orders issued by state officials around the U.S. to combat COVID-19 have been challenged under the nondelegation doctrine, which prohibits the delegation of legislative authority to the executive branch of government. While these cases often involve a highly technical review of statutory language, they illustrate the tension that can arise within state government over public health measures. In states like Wisconsin and Michigan, the respective state supreme courts have unvalidated executive orders issued by the Department of Health (Wisconsin) and Governor (Michigan), finding they exceeded statutory or constitutional authority. See Wisconsin Legislature v. Palm, 2020 WI 42 (invalidating the Wisconsin Department of Health Services' emergency “stay at home” order that effectively closed all non-essential businesses, restricted non-essential travel, and banned any gatherings of persons not from the same household), and In re Certified Questions from S.D.W.D. Michigan, No. 161492 (Mich. 2020) (invalidating emergency orders by Michigan's Governor requiring residents to stay home and medical providers to cease performing non-essential procedures).
9. State COVID-19 Vaccination Mandates in the United States Have Survived Judicial Scrutiny
Vaccination is an essential component of the public health plan to end the COVID-19 pandemic, with some governmental bodies and institutions instituting vaccine mandates. Not surprisingly, these measures have been challenged in the courts, including the U.S. Supreme Court.
In Klaassen v. Trustees of Indiana Univ., 1:21-CV-238 DRL (N.D. Ind. July 18, 2021), eight students filed a federal lawsuit seeking to bar enforcement of Indiana University's requirement that its faculty, staff and students be vaccinated against COVID-19, unless exempt from the requirement for religious or medical reasons. The plaintiffs claimed the university's rules violate the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The Seventh Circuit Court of Appeals rejected these claims, finding the case "is easier than Jacobson." The court recognized that "vaccination requirements, like other public-health measures, have been common in this nation" and that given Jacobson "which holds that a state may require all members of the public to be vaccinated against smallpox, there can't be a constitutional problem with vaccination against SARS-CoV-2." The U.S. Supreme Court summarily denied the plaintiffs' emergency application to enjoin enforcement of the university's vaccination requirements.
In Maniscalco v. New York City Dep't of Educ., 21-CV-5055 BMC (E.D.N.Y. Sept. 23, 2021), four New York City public school employees filed a federal class action lawsuit seeking to bar enforcement of New York City's requirement that its public school teachers provide proof of COVID-19 vaccination or face suspension without pay. The plaintiffs claimed different reasons for not wanting to get the vaccine, including concern about its long term effects, and argued that the requirement violates their substantive due process and equal protection rights under the Fourteenth Amendment. Both the Second Circuit Court of Appeals and the U.S. Supreme Court denied emergency applications by the plaintiffs to enjoin enforcement of the New York vaccination requirement.
10. Religious Freedom Claims Likely will be Key to Future Court Rulings on Public Health Mandates in the United States
Based on two very recent decisions by the U.S. Supreme Court in cases involving state vaccine mandates, it seems likely that religious freedom concerns will shape future judicial rulings on U.S. public health measures, including COVID-19 vaccination programs.
In Does 1-6 v. Mills, 1:21-CV-00242 JDL (D.ME Aug. 25, 2021), healthcare workers filed a legal challenge to Maine's requirement that various types of employees be vaccinated against a number of infectious diseases, including COVID-19. The plaintiffs claimed Maine's vaccine mandate constitutes impermissible religious discrimination in violation of the Free Exercise Clause of the First Amendment of the U.S. Constitution because it allows for medical exemptions but does not allow for religious exemptions. The First Circuit Court of Appeals denied the plaintiffs' request for an injunction against Maine's vaccine requirement, stating "[f]ew interests are more compelling than protecting public health against a deadly virus." The plaintiffs' emergency petition to the U.S. Supreme Court to try to stop Maine's law also was denied. But Justice Neil Gorsuch issued a lengthy dissent, which was joined by Justice Clarence Thomas and Justice Samuel Alito, focusing on the fact that Maine's law does not contain a religious exemption but allows a medical exemption. He stated that "medical exemptions and religious exemptions are on comparable footing when it comes to the State's asserted interests." He noted that "[m]any other States have made do with a religious exemption in comparable vaccine mandates" and "Maine's decision to deny a religious exemption in these circumstances doesn't just fail the least restrictive means test, it borders on the irrational."
Two recent challenges to New York's mandate that healthcare workers receive a COVID-19 vaccine received similar analysis at the U.S. Supreme Court. In We the Patriots USA, Inc. v. Hochul, 1:21-CV-4954 WFK (E.D.N.Y. Sept. 2, 2021), a group of nurses, doctors and other healthcare workers filed suit to enjoin New York's vaccine mandate because it lacks a religious exemption and claiming it violates their religious, privacy and "medical freedom" rights under the First, Fourth, Fifth and Fourteenth Amendments. In Dr. A. v. Hochul, 1:21-CV-1009 (N.D.N.Y. Oct. 12, 2021), healthcare workers, including doctors, medical residents and nurses, filed a lawsuit objecting to New York's vaccine mandate as discriminatory because it does not allow for religious exemptions. The Second Circuit Court of Appeals considered appeals in these cases together and rejected them, finding New York's vaccine requirement "was a reasonable exercise of the State's power to exact rules to protect public health." The plaintiffs then filed emergency applications with the U.S. Supreme Court to try to prevent enforcement of New York's mandate. On December 13, 2021, the Court denied the plaintiffs' applications. However, Justice Gorsuch again dissented, again along with Justice Alito and Justice Thomas. Justice Gorsuch's lengthy dissent, which has been described as "scathing" by some reporters, echoes but amplifies his dissent in Does 1-6, stating "[t]oday, we do not just fail the applicants. We fail ourselves" because the Court "stands silent as majorities invade the constitutional [religious] rights of the unpopular and unorthodox."
Conclusion
Restrictive measures related to public health crises have deep roots in American law. State officials possess broad powers to address these types of emergencies. And the measures they enact—at least when they have some rational basis—generally do not run afoul of constitutional prohibitions. While public health measures enacted to combat COVID-19 inevitably will lead to additional litigation around the country, for now the Jacobson decision continues to provide guidance to U.S. public health officials and courts, as it has for over a century.
Author: Grant C. Killoran, O'Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee, Wisconsin
