The law on public health after the Covid-19


The Covid-19 triggered an epidemic of another type: litigation. To tackle the pandemic, authorities have imposed sweeping mitigation measures at the community level using their extensive but largely untested emergency powers. In response, more than 1,000 lawsuits challenged business closure orders, bans on indoor worship services, restrictions on travel and the requirement to wear a mask.1 As with other social aspects of the pandemic, this dispute will have lasting effects.

Courts have always shown deference to health orders, especially during epidemics. The most famous, in 1905 in Jacobson v. Massachusetts, the Supreme Court confirmed a mandate for vaccination and stressed that the protection of public health was the primary responsibility of elected officials and experts to whom they delegated power. Judicial review, according to the Court, is limited to determining whether the decisions of officials have “no real or substantial connection with” their objectives, constitute “a flagrant and manifest infringement of rights” or are “arbitrary and oppressive in certain cases. individuals ”. Since then, the courts have attempted to reconcile Jacobson with the evolution of conceptions of individual rights.

Initially, the courts dismissed most challenges to the Covid-related emergency orders. For example, in In re Abbott, the Fifth Circuit Court of Appeals overturned a restraining order against a Texas directive ending most abortions during the emergency. The court read Jacobson as requiring very respectful consideration, even in cases where important constitutional rights, such as abortion rights, were at stake.

Most courts have not read Jacobson as widely, but nevertheless accorded considerable deference to health officials.1.2 For example, the courts have rejected the idea that there is a right to keep your business open during a pandemic or that emergency orders represent an unconstitutional take of property. Although a federal appeals court ruled that the closure of private schools implied the fundamental right of parents to choose private school, this court and others rejected claims that public school closures are constitutionally inadmissible. Even most challenges to freedom of expression and the right to travel were dismissed.2 Courts have, however, been more receptive to challenges relating to religious freedom and the extent of executive power.3

In May 2020, in South Bay United Pentecostal Church c. Newsom, the Supreme Court refused to impose California capacity limits on in-person religious services. There was no majority opinion, but the concurring opinion of Chief Justice John Roberts was cited Jacobson and warned the courts not to guess at health officials. The Court’s approach changed, however, after Judge Amy Coney Barrett replaced Judge Ruth Bader Ginsburg. In November 2020, in Roman Catholic Diocese c. Cuomo, the court ordered New York state capacity limits for in-person religious services in areas heavily affected by Covid-19. The majority ruled that because the ordinance treated schools and certain “essential” secular activities more leniently than places of worship, it discriminated against religion and was subject to scrutiny, which required the government to show that the rule was narrowly designed to advance an interest. Although indoor worship sparked epidemics elsewhere, the court found that since no outbreaks had occurred in the places of worship that filed the lawsuit, the rule was more restrictive than necessary and could not pass a meticulous examination.

The majority cited neither Jacobson nor any scientific evidence. In agreement, Judge Neil Gorsuch held that Jacobson must be read in the light of current conceptions of religious freedom. A dissent noted that the state had treated worship the same as large secular gatherings, such as theatrical performances, and criticized the majority for substituting their own judgment on appropriate activities for comparison.

After Roman Catholic Diocese, the Supreme Court issued several other orders granting reparations to religious freedom claimants. In February 2021, for example, he revisited South Bay and, without providing much analysis, urged California to ban indoor worship services (but allowed capacity limits and a ban on singing).

Then, in April 2021, in Tandon vs. Newsom, the court found that a California rule limiting home gatherings to three homes impermissibly weighed on religion by preventing plaintiffs from holding home Bible study groups. Although the California rule did not distinguish between religious activities, the majority concluded that by regulating similar secular activities and spaces (such as cinemas) less strictly, the rule was not neutral towards religion and deserved a meticulous examination. The Court explained that the determination of activities similar to regulated religious activity depends solely on the risk of transmission of the disease. The court further found that the order had failed close scrutiny because the state had failed to demonstrate that less restrictive precautions were ineffective.

Several cases have focused on the authority of executive officials to issue emergency orders. Although most orders have been upheld, some courts have interpreted statutory powers narrowly and questioned both the processes used to issue orders and the constitutionality of laws granting public officials broad authority. In Legislature of Wisconsin v. Palm, for example, the Wisconsin Supreme Court ruled that the Secretary of Health does not have the power to issue extended emergency orders without legislative intervention or a period of public notice and comment.4 This court later ruled in Fabick vs. Evers that the governor did not have the power to impose the wearing of a mask.

Several courts, including the Supreme Court, have considered challenges to the moratorium on evictions instituted by the Centers for Disease Control and Prevention (CDC). More specifically, on August 26, 2021, the Supreme Court of Alabama Association of Realtors v. Ministry of Health and Social Services upheld a lower court order blocking the moratorium. By a 6-3 vote, the court, in an unsigned opinion, ruled that the CDC had exceeded its powers under the Public Health Service Act (PHSA). This law, the court said, limited the CDC to measures “directly related to preventing the interstate spread of the disease by identifying, isolating and destroying the disease itself,” such as isolating infected individuals. , inspection of premises and extermination of pests. If Congress wants a moratorium on evictions, the judges suggested, it must pass a law to impose one or to make it clear that the CDC can impose one.

Some lower courts have also read the PHSA narrowly. For example, in State of Florida v. Becerra, a federal judge ruled that the CDC overstepped its authority in requiring cruise ships to implement extensive Covid-19 mitigation measures, unless nearly all passengers and crew were vaccinated. The court read the PHSA in a manner similar to the Supreme Court’s interpretation in the eviction moratorium case. He also found that Congress gave too much leeway to the CDC and that even in an emergency, a notice and comment process may be required before the CDC could issue requirements for cruise ships. The 11th Circuit Court of Appeal refused to allow the order to remain in effect while the CDC appeals, indicating that it likely accepts the reasoning of the lower court. Although the cruise ship requirements look more like the disease prevention measures listed in the PHSA than the moratorium on evictions, the Supreme Court ruling negatively affects the CDC’s outlook on appeal.

Taken together, these cases pose new challenges for the ability of authorities to protect public health. The rulings regarding the free exercise of religion suggest that health ordinances will come under scrutiny if they regulate religious practices more strictly than any secular activity the courts find similar. Any restriction on religious activities may therefore be constitutionally suspect.

A key question is how these decisions will affect immunization mandates and other public health laws that do not directly involve worship. Although the courts have always held that neutral and generally enforceable vaccination mandates do not need to include religious exemptions, Tandon suggests a reduced willingness to consider laws that include certain exemptions as neutral. Also, in June 2021, in Fulton v. City of philadelphia, five judges expressed their concerns Division of Employment c. Smith, a 1990 ruling that neutral laws of general applicability should not be subject to scrutiny when challenged on the grounds of free exercise. Even if Fulton did not decide if Black-smith should be rescinded, she considered that a law allowing individualized exceptions was not generally applicable and therefore strict control applied. This decision creates additional uncertainty as to how the courts will view vaccination warrants that allow exemptions. To date, most lower courts that have heard challenges to the Covid-19 vaccination warrants have upheld them without mentioning Fulton or decide if a religious exemption was required. However, on August 31, 2021, in Dahl v. Board of directors, a federal district court temporarily blocked the execution of a university vaccination warrant against an athlete whose request for religious exemption was denied. In a poorly motivated decision citing Fulton, he found that scrutiny was appropriate because the mandate provided for a mechanism for individualized religious exemptions.

Other than religion-related cases, few courts adjudicating Covid-related claims have shown interest in expanding individual rights. Nonetheless, there are indications of a growing reluctance to read executive powers extensively. The potential implications of the Supreme Court’s ruling regarding the authority of the CDC are particularly troubling. To ensure the CDC is not hampered in future outbreaks, we believe Congress should make it clear that it intends the agency to have broader powers – within constitutional limits. Many state legislatures are moving in the opposite direction by passing or considering legislation stripping officials of public health powers.5

Emergencies can lead to abuse of authority and disregard of individual rights. The courts are rightly charged with remedying such abuses. But in their zeal to protect religious freedom and restrict executive action, courts may leave officials with fewer tools to fight Covid-19 and the next pandemic.


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