Courts and Pandemics

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With all the hype and drama associated with the recent Presidential race, late last year the Supreme Court did something that few of us noticed. What they did may very well affect how pandemics are treated, and that includes our current pandemic. As you know, many state governors, including ours, placed arbitrary limits on the rights of people to assemble, to dine, to shop, to work out in a gym, etc.… While they claimed to be “following the science,” many of their orders and edicts had little to no basis in real medical science. Naturally, people affected by these edicts sued the state governments and/or the governors themselves.

On November 25 of last year, as we prepared to celebrate Thanksgiving during a pandemic (i.e., alone), the U.S. Supreme Court, by a vote of 5-to-4, undermined the states’ ability to control the pandemic. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court blocked limits on in-person religious worship imposed by Andrew Cuomo. Although this decision will have little effect because the restrictions were no longer in place at the time of the ruling, the decision has the potential to impact public health law during this pandemic and others to follow.

Starting about a year ago, U.S. governors began placing numerous restrictions on public gatherings in an attempt to limit the spread of COVID-19. Many of these limits have been challenged in court as violating a broad array of constitutional rights, for example the free exercise of religion, freedom of speech, freedom of assembly, and the right to travel.

Initially, most courts rejected these claims, citing the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a Cambridge, Massachusetts, regulation mandating smallpox vaccination during an outbreak. For example, on May 29, the Supreme Court issued its first COVID-19-related decision in South Bay United Pentecostal Church v. Newsome. In this case, by a 5-to-4 vote, the court declined to block a California limit on attendance at places of worship. Chief Justice Roberts noted that the state had placed similar limits on secular gatherings. Quoting Jacobson, he added that the Constitution “principally entrusts ‘the safety and the health of people’ to the politically accountable officials of the States.” Several other cases came before the Court, all with the same results, and all citing Jacobson.

However, by the time the Roman Catholic Diocese case got to the Supreme Court, its composition had changed. In particular, the death of liberal Justice Ginsberg caused her to be replaced by conservative Justice Barrett. Be that as it may, Cuomo had limited in-person worship in red zones to 10 people, 25 in orange zones. He placed no such caps on other activities such as grocery shopping and education. In this decision, the majority held that the governor’s orders “single out houses of worship for harsh treatment” and that no such caps were placed on stores, factories, or schools. Facing litigation, Cuomo changed the religious limits to 50% of capacity, but it was too late because while this decision devalues federalism and public health, its most important legacy may be in dethroning . By sidelining Jacobson, the future of many public health laws, including and especially vaccine mandates, may be in jeopardy.

In case you were wondering, I am a medical expert, not a legal scholar. The information in this column came from an article in the January 21, 2021 issue of The New England Journal of Medicine.

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 By Peter Galvin, MD

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