Contributor: Lisa Clark, JD’89
To learn more about Lisa, click here.
Since the COVID-19 pandemic arrived, we have received an unexpected education on government powers in a public health emergency. Beginning in March 2020, federal and state officials have acted forcefully to contain the emergency through orders and advisories for individuals to stay-at-home, social-distance, and wear masks, as well as for schools and most businesses to close. These restrictions have caused massive personal and societal disruption and revealed the extent of government powers in a major public health disaster. Indeed, it is a fundamental duty of government to respond to major health issues that threaten the common good, but finding the right balance of measures that promote public health while not improperly restraining individual freedoms is a tricky business. In the U.S., such actions are governed by a patchwork of laws and cases that derive from federal and state constitutional principles providing for, on the one hand, police powers during an emergency and, on the other hand, guarantees of individual liberties with due process of law.
As the COVID-19 crisis advanced, federal and state leaders issued orders and other directives under laws that permit them to invoke special powers during public health emergencies. In Pennsylvania, the Governor may declare a “disaster emergency” and thereby suspend regulations; utilize “all available resources”; purchase supplies; commandeer resources from private parties; call up the Pennsylvania National Guard; and authorize the Secretary of Health to take such necessary measures as mandatory testing. The Governor may also control the “ingress and egress from a disaster area, the movement of persons within the area and the occupancy of premises therein,” i.e., mandate that persons quarantine. 35 Pa.C.S.A. Section 7301(f)(7).
At the time of this writing (May 2020), Pennsylvania’s Governor Tom Wolf has issued scores of orders, proclamations, and announcements to respond to COVID-19. During the initial stages of the pandemic, his orders to stay-at-home, close non-essential businesses and schools, and use emergency funds to buy healthcare supplies and strengthen food programs, were urgent and swift efforts to curtail the spread of the virus and minimize public harm. Several months later, he is lifting some restrictions through “phase-in”orders. It remains to be seen if and when he will lift more restrictions, especially if the virus resurges.
In many states there have been significant objections to stay-at-home and business and school closure orders by those who maintain these measures are too strict, knee-jerk, not based in science, and violate fundamental individual rights to move freely and work. This push-and-pull between the government’s authority to protect the public health through forced actions, in effect through police power, is not new and has been addressed in the case law. A frequently-cited case is Jacobson v. Massachusetts, 197 U.S. 11 (1905) concerned a Cambridge, Massachusetts, regulation requiring that residents get vaccinated against smallpox or be fined $5. Plaintiff Jacobson challenged the order and was ready to proffer medical evidence to show that vaccinating him was not necessary based on his health and, indeed, could cause harm. The Court held that, in light of valid public health concerns, the regulation was a legitimate exercise of the state’s police power and was neither unreasonable nor arbitrarily imposed. But the Court recognized there may be cases in which “the police power of a state . . . may be exerted in such circumstance, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.” Id. at 38.
There are other cases involving quarantine, vaccination, and other measures to curb the spread of contagions such as the bubonic plague, tuberculosis, HIV/AIDS, and Ebola, many of which cite Jacobson. Many of these cases find in favor of the state but others require, and, as stated in Jacobson, “the interference of the courts” as stated in Jacobson. The rulings vary based on the circumstances, including the gravity of the public health risk; the reasonableness of the government response; fear; prejudice; and the medical and scientific principles underlying the contagion. But they all address the balance of public health powers against individual freedoms, with due process guaranteed under federal and state constitutions and laws.
Very recently, Jacobson was at the center of a COVID-19 case involving Texas’ decision to prohibit healthcare providers from providing elective services during the COVID-19 pandemic to “preserve medical resources,” including hospital space and personal protective equipment (PPE). Planned Parenthood and other abortion providers challenged the order, [which would have prohibited nearly all abortion services, (except in cases where the mother’s life was in jeopardy)] on the grounds that many abortion procedures were not elective or were induced by medication and therefore did not require medical resources. Ultimately, the U.S. Court of Appeals for the 5th Circuit ruled in favor of the Governor, with the condition that medication-induced abortions be allowed to proceed, relying on the Jacobson case to mean that States have very broad authority to invoke public health measures in a crisis, such that in this case the order was reasonable and did not violate the law. In re Greg Abbott et al. (5th Cir., April 20, 2020). Many commentators disagreed with the decision, including the interpretation of Jacobson, to provide such broad discretion.
Each public health emergency is unique and requires a unique response. COVID-19 has taught us that federal and state governments should be well-prepared for public health emergencies, including ensuring that important laws and policies that promote health are in place. Even though we cannot predict the exact time of the next major public health emergency, we can assume there will always be a variety of opinions and legal challenges during each emergency on the question of how much is too much government control, and whether individual liberties that are protected by our federal and state constitutions have been comprised.
Contact Lisa at: