In November, the U.S. Supreme Court struck down emergency limits that New York State had placed on religious gatherings because of the COVID-19 pandemic. Such restrictions, the Court ruled, unconstitutionally prohibited New Yorkers from freely exercising their religions. It was the first time in history that the nation’s highest court has intervened to strike down similar regulations during a public health crisis.
The justices in the majority pointed to history to support their ruling. Justice Neil Gorsuch characterized public health measures put in place during previous pandemics as “relatively modest,” while Justice Brett Kavanaugh called current COVID-19 regulations “severe.” In a recent speech to the Federalist Society, Justice Samuel Alito explained that states’ emergency restrictions during the COVID-19 pandemic were “more severe, extensive, and prolonged” than any that had been previously promulgated.
But this story is plainly untrue. A century ago, states and cities took aggressive regulatory action to prevent the spread of the influenza pandemic. They placed limits on public gatherings, mandated masks, and forced businesses and schools to close. Disgruntled parties only rarely questioned the constitutionality of such measures, and judges almost never struck them down. Today, by contrast, judges are striking down state public health rules in states across the country, arguing that they violate federal and state constitutions.
Why are emergency public health regulations suddenly facing a raft of constitutional challenges? And why are more judges looking favorably on such challenges than did so during the 1918–19 flu pandemic? The answers to these questions shed light on how U.S. legal institutions have changed over the last 100 years—and how that change affects the United States’ ability to respond to public health crises now and in the future.
Between 1918 and 1919, approximately 675,000 Americans died of influenza. To stem the spread of infection, local governments around the country implemented intrusive public health measures: San Francisco banned public meetings, closed public and private schools, and issued mask mandates; Philadelphia shuttered schools, churches, saloons, hotels, club bars, and cafés; and Chicago banned public dancing and public funerals and arrested “persistent sneezers and coughers” who did not cover their faces with handkerchiefs.
Many Americans disagreed with such measures. Limits on in-person religious services, for example, frustrated many churchgoers and church leaders. Some mounted protests against the regulations. But such limits created little constitutional controversy, and few attempted to challenge their constitutionality in the courtroom. In Washington, D.C., for instance, ministers and religious leaders showed unified support for a directive to close places of worship, at least initially. Even after they began to disagree with city leaders, churches continued to comply with the order. In San Francisco, most complied with the mask mandate, and for a time, wearing a mask became a symbol of patriotism.
To be sure, there were some legal challenges, but most of them were technical rather than constitutional in nature. For instance, a lower court in California allowed the Christian Science Church in Pasadena an exception to the city’s ban on public gatherings on the grounds that California’s order had never been properly issued. Similar procedural challenges arose in New Jersey, Arizona, Kansas, and elsewhere, though most failed.
Constitutional challenges, however, were rare and mostly unsuccessful. The Christian Science Church in Los Angeles attempted to challenge the constitutionality of a California state order to close churches, but the state supreme court denied the petition. Only one case from the flu pandemic era produced a written opinion reported in law books on the constitutionality of influenza constraints. The opinion, issued three years after the start of the pandemic by the U.S. Court of Appeals for the Fourth Circuit, upheld a North Carolina county’s ban on traveling shows as “a matter clearly within the police power of the State.”
One hundred years ago, there was little question that state and local governments had the constitutional authority to restrict people’s behavior in the name of public health.
This far-reaching constitutional power, recognized again and again by the courts, included the ability to enact regulations designed to stop the spread of disease, even if those regulations incidentally interfered with some individuals’ private rights. In the 1824 landmark case Gibbons v. Ogden, for instance, Chief Justice John Marshall recognized that states have the power to pass an “immense mass of legislation,” including “inspection laws, quarantine laws, [and] health laws of every description.”
Eighty-one years later, the Supreme Court decided what is still the foundational public health case in U.S. law. A pastor named Henning Jacobson—who had suffered a bad experience with vaccines as a child—had refused to comply with a Cambridge, Massachusetts, smallpox vaccination mandate and been fined $5. Jacobson challenged the law on the grounds that it unconstitutionally interfered with his liberty. But Justice John Marshall Harlan ruled that states had the power to mandate vaccination to protect the safety of the general public. The “rights of the individual,” he wrote, may “be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
The parallels between the 1918–19 influenza pandemic and the COVID-19 pandemic are striking. COVID-19 has already killed over 300,000 people in the United States—and widespread access to vaccines is still months away. States have taken action, as they did a century ago, to slow the spread of the virus—issuing mask mandates and stay-at-home orders; banning public gatherings; closing schools, businesses, and churches; limiting commercial activity; and restricting travel. Unlike in 1918, however, today people, businesses, and organizations are aggressively challenging the constitutionality of such orders. By one count, Americans have filed more than 400 constitutional challenges to pandemic regulations. Judges have produced dozens of judicial opinions—many of them sympathetic to the challengers.
Legal efforts to overturn public health measures started early in the pandemic. In April, a Kansas district court allowed churches to temporarily hold in-person worship services, citing the First Amendment’s free exercise of religion clause. A month later, a divided Supreme Court of Wisconsin struck down the state’s stay-at-home and business-closure orders, concluding that the Wisconsin Department of Health Services had exceeded its statutory authority. The court also pointed to underlying constitutional concerns: “This comprehensive claim to control virtually every aspect of a person’s life is something we normally associate with a prison, not a free society governed by the rule of law,” Wisconsin Chief Justice Patience Roggensack wrote.
Successful challenges continued as the pandemic raged on in the fall. In September, a federal district judge in Pennsylvania held that gathering limits, stay-at-home orders, and business closures violated the assembly, due process, and equal protection rights guaranteed by the First and 14th Amendments. And in Michigan, four judges in the state supreme court struck down the state’s Emergency Powers of the Governor Act, which had been in place since 1945, on the grounds that it violated the Michigan constitution.
Many of the challenges to local public health regulations have come from religious leaders and religious institutions. Plaintiffs have contested local measures and sought judicial relief on religious grounds in states across the country: in California, New York, Illinois, Kentucky, Kansas, Louisiana, Colorado, and elsewhere. Unlike in 1918 and 1919, over the past year courts have ruled in favor of such challenges. The U.S. Supreme Court joined the fray on the night before Thanksgiving, issuing its injunction in the New York case on rules for religious gatherings.
The sudden spike in constitutional challenges to pandemic restrictions—and the courts’ sudden willingness to hear them—cannot be explained by the restrictions themselves. As noted above, the measures put in place by state and local governments to contain COVID-19 are virtually indistinguishable from the measures instituted a century ago.
There are better explanations for today’s newfound pandemic litigiousness. Modern medicine’s triumphs over disease have allowed Americans to lose sight of lessons their forebears once understood well: people are vulnerable to infection, and often the only solutions to such vulnerability are collective. As the Massachusetts Sanitary Commission put it in 1850, “No family, no person liveth to himself alone.” One person’s conduct affects other people’s infection risk, and vice versa. Fifty years of relative safety from infectious disease have given rise to a libertarian hubris that now expresses itself in judicial decisions.
Making matters worse, the adjudication of constitutional questions in the United States has also come to reflect more clearly the country’s partisan polarization. Courts have often been political. But as studies have shown, courts, especially the U.S. Supreme Court, have rarely been as partisan as they are today. During the COVID-19 pandemic, time and time again, Republican-appointed or Republican-elected judges have challenged measures enacted by Democrats in local or state governments.
In the Kansas case, a federal judge appointed by President Donald Trump overturned an emergency directive issued by the defendant, Governor Laura Kelly, who is a Democrat. In the Wisconsin case, the four judges who struck down the state’s stay-at-home and business-closure orders are closely connected to the Republican Party; Andrea Palm, the secretary-designee who issued the orders, is a Democrat. In Pennsylvania, the governor, Tom Wolf, is a Democrat while the federal judge who overturned his public health order was appointed by Trump. Three of the five justices who voted to prevent New York’s Democratic governor, Andrew Cuomo, from enforcing occupancy limits in houses of worship were appointed by Trump, while the other two justices were appointed by previous Republican presidents. And on and on it goes.
With few exceptions, the unprecedented constitutional challenges of this pandemic are part of an effort led by jurists affiliated with the Republican Party seeking to disable age-old and once bipartisan public health powers of state and local governments. The new cases dream up a tradition of rugged American individualism in the face of epidemics. But Justice Harlan’s opinion continues to offer the definitive rejoinder to this fantasy: “Real liberty for all,” he observed, does not exist if people act “regardless of the injury that may be done to others.” A century on, his words still ring true.
JOHN FABIAN WITT is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School.