B. Emergency Orders to Control the Coronavirus Pandemic

Every country has tried to slow the spread of the SARS-CoV-2 virus. In the United States, control measures included recommendations to wear masks, keep two meters distance from others, and mandatory limits on public gatherings. The Secretary of Health and Human Services declared a national emergency on January 31, 2020, and then President Trump renewed it on July 23, 2020.Footnote ¹ These declarations authorized the United States federal government to take dramatic steps to control the pandemic.Footnote ² Apart from federal legislation providing financial assistance for vaccine development and economic hardship,Footnote ³ however, it took few direct actions. For example, early errors and delays in testing supplies left the country with few options except social distancing—keeping people apart.Footnote ⁴ For most of 2020, the federal government left it up to the states to initiate formal mitigation measures.Footnote ⁵ After Joe Biden became President on January 20, 2021, the federal government took a more proactive approach, focusing on speeding up vaccine distribution and providing financial assistance to people and businesses in need.

Traditionally, the states have been primarily responsible for controlling infectious diseases, although they have received considerable funding from the federal government to do so. This means that the actions taken by the states to control the coronavirus pandemic come from the same power states have to control infectious disease during ordinary, non-emergency times.Footnote ⁶ It is the sovereign power to pass laws to protect the health, safety, and welfare of the population in the state, known as the “police power.”Footnote ⁷ It is the authority that a state legislature uses to pass virtually all statutes: Criminal laws; state and local tax laws; laws protecting the environment; laws requiring licensure of health facilities and professionals; laws requiring residents to be covered by health insurance; laws requiring vaccinations; and laws governing how to respond to emergencies. Any authority that the federal Constitution does not assign to the federal level of government remains with the states.

In the United States, the coronavirus pandemic and the federal government’s limited response prompted state governors to impose rules governing commercial and personal activities to prevent the spread of the coronavirus. By April 2020, all fifty states and the District of Columbia had declared a state of emergency, which authorized their governors to issue executive orders.Footnote ⁸ Such orders included extending the deadline for receipt of mailed ballots for the November 3, 2020 election, limiting the number of people at public gatherings, in retail businesses, in airlines, trains, buses, worship services, and complete closures of schools, art, entertainment venues, and certain businesses and medical services.Footnote ⁹ They also recommended that people stay at home, wear masks, and practice social distancing in public. States varied in the measures they chose. Some mandatory measures were expected to be temporary. Some were lifted later in the year to allow businesses to open in order to revitalize a devastated economy. Subsequent waves of increased coronavirus infections, however, persuaded some governors to continue or reimpose restrictions.

C. Judicial Review of Executive Orders

Many governors’ executive orders were—and still are being—challenged as violations of the constitutionally protected rights of those affected.Footnote ¹⁰ Because the executive orders vary in detail from state to state, judicial decisions are often quite fact specific.Footnote ¹¹ For example, states like New York and California imposed different levels of restrictions in different parts of the state, based on the prevalence of coronavirus cases and deaths. Moreover, few cases reached the United States Supreme Court and fewer have been decided on the merits.Footnote ¹² Most were on what is known as the “shadow docket”—emergency appeals from decisions temporarily restraining the enforcement of COVID restrictions pending hearings on the merits.Footnote ¹³ Nevertheless, even preliminary decisions indicate likely outcomes. Thus, the judiciary plays a pivotal role in deciding which emergency measures are permissible.

A threshold question in most cases was what method of analysis—standard of review—the court should apply to the claim. Judicial decision-making depends almost entirely on the choice of the standard of review. The choice determines the scope of state authority to curtail constitutionally protected rights, including the right to access medical care, freely exercise one’s religion, vote, and peaceably assemble. Courts are struggling with the degree to which a pandemic empowers the government to limit the freedom of its population. Under what circumstances? For how long? Does this change the balance between government power and individual rights indefinitely?

This section presents a brief overview of the three general categories of judicial review developed by the U.S. Supreme Court to evaluate claims of infringement of constitutional rights. It then describes a current controversy over what standards of review should apply in emergencies. These cases suggest that the litigants—and perhaps the judges—may be taking advantage of the emergency circumstances to push the standards of judicial review farther in one direction or the other. The outcome will decide the scope of executive power and the human rights of affected individuals beyond the coronavirus pandemic.

D. Judicial Review of Access to Reproductive Care in Emergencies

Rights that may be diluted as a result of coronavirus pandemic cases are rights to make reproductive decisions, especially the right to decide to have an abortion. Many state executive orders required that non-essential or non-life-preserving businesses close, at least temporarily, during the COVID epidemic. Few laws define essential services, so governors specified the types of businesses that could stay open and those that had to close. In states where the state government is very conservative, the executive orders classified reproductive health clinics as non-essential and required them to close. In particular, they could not perform abortions. The reason given was to preserve the limited supply of personal protective equipment (PPE) in the United States at the beginning of the epidemic in March and April 2020. At the time, hospitals had trouble getting enough PPE. Hospital departments and medical practices stopped seeing patients for routine and elective services, although many shifted to telemedicine and virtual visits via computer platforms. That was not an option for abortion services. Notably, in other states like Massachusetts, abortion services, as well as emergency and critical care services, were deemed essential and allowed to continue, with no apparent impact on PPE supply.

In 2020, two federal courts of appeal discovered the old Jacobson case and concluded that it should control challenges to executive orders classifying reproductive health care as non-essential, because the coronavirus pandemic was an emergency.Footnote ⁴⁹ The courts used the minimum level of judicial review to uphold clinic closures, largely ignoring the Supreme Court’s quite specific standard that applies to laws limiting a woman’s right to abortion. About the same time, two different federal courts of appeal rejected Jacobson as controlling precedent. They applied the normal standard of review and struck down executive orders that closed reproductive health facilities.Footnote ⁵⁰ These conflicting opinions set the stage for reconsidering the extent to which a woman’s right to terminate a pregnancy could be curtailed.

The U.S. Supreme Court first recognized the constitutional right of a woman to decide to have an abortion in the 1973 case of Roe v. Wade.Footnote ⁵¹ In Roe, it recognized the right as an aspect of liberty protected by the Fifth and Fourteenth AmendmentsFootnote ⁵² and described it as a fundamental right. Thus, a form of strict scrutiny applied, requiring the state to demonstrate a compelling interest in regulation and that a restriction is necessary to achieve that interest. The two accepted state goals were to protect the life of the woman and to protect the potential life of the foetus.Footnote ⁵³ Moreover, the Court found that the state’s interest in protecting the woman’s health only became compelling after the first trimester, when the procedure’s risks to the woman became equal to or greater than the risks from childbirth. The state’s interest in the potential life of the fetus only became compelling at viability – when the fetus could feasibly live outside the womb, with or without mechanical support. Even after viability, abortion could not be forbidden if it was necessary to preserve the woman’s life or her physical, emotional, or family life health, because the state still has an interest in protecting the woman’s health.Footnote ⁵⁴

There followed decades of state laws regulating providers of abortion services and imposing conditions on women’s access to those services. Dozens of challenges to these laws reached the Supreme Court, which responded by modifying the standard of review and, by implication, the right itself.Footnote ⁵⁵ In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court stopped referring to the right as fundamental.Footnote ⁵⁶ This slight shift allowed states to defend increasingly restrictive laws with somewhat less demanding justifications. Casey also reformulated the standard of review for abortion legislation. It allowed regulation that did not impose an “undue burden” on the right:

This formulation dispenses with the need for the state to demonstrate that the purpose of its regulation must meet any specific degree of importance. It also avoids specifying how close the fit must be between the regulation and its purpose. Yet the Court reaffirmed that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”Footnote ⁵⁸

In 2016, the Court appeared to give the Casey standard more teeth in Whole Woman’s Health v. Hellerstedt.Footnote ⁵⁹ The state of Texas required physicians who performed abortions to have admitting privileges at a hospital within thirty miles of their clinic.Footnote ⁶⁰ This was an impossible requirement to meet. Hospitals almost never grant privileges to physicians who perform abortions, in part because of controversy over abortion. More important, however, outpatient abortion complications are so rare that hospital admission is almost never needed, and hospitals are not inclined to offer privileges to physicians who don’t admit patients to hospital. The Court found that this regulation did not promote the state’s professed goal of protecting women’s health. Instead, it resulted in the closure of abortion providers in the state, thereby creating an unconstitutional undue burden on the right.Footnote ⁶¹ The Court held that Casey “requires that the courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”Footnote ⁶² This weighing of burdens and benefits requires analyzing the facts. Laws that create obstacles without achieving demonstrable benefits to women’s health are unnecessary and unconstitutional.

The Court upheld the Whole Woman’s Health formulation of the undue burden test in June Medical Services v. Russo, a 2020 case striking down an almost identical law in Louisiana.Footnote ⁶³ The majority emphasized that, to be constitutional, the benefits that the law produces must outweigh the burdens that it places on access to abortion. However, the concurring and dissenting opinions strongly suggested that the conservative Justices were rethinking just how fact-based the standard should be. Indeed, there were at least five different views of how the standard should be interpreted and applied. Chief Justice Roberts, who had dissented in Whole Woman’s Health, provided the fifth vote to strike down the Louisiana law, but only on the basis of stare decisis, because the Texas and Louisiana laws were almost identical. In his concurrence, he found the Whole Woman’s Health balancing of benefits and burdens inappropriate for the judiciary. Instead, he would focus on whether a law creates a substantial obstacle. He would not require states to prove that restrictions on abortion would actually promote women’s health in fact. He wrote, “Laws that do not pose a substantial obstacle to abortion access are permissible, so long as they are ‘reasonably related’ to a legitimate state interest.”Footnote ⁶⁴ This describes the minimum scrutiny standard of review for any law that imposes delays, costs, or conditions that are not seen as a “substantial obstacle.” It also indicates that the right to decide to terminate a pregnancy should be considered merely an ordinary right, not fundamental or even important.

Thus, the new majority of Justices who oppose abortion appear poised to continue to dilute Roe’s standard of review. The cases challenging executive orders that closed or postponed abortion services during the COVID pandemic offered the opportunity to do just that. The threshold question in four key cases was what standard to use to review COVID closures of reproductive health clinics. All four appellate court decisions were interlocutory, granting or denying a temporary restraining order or writ of mandamus pending hearings on the merits. Nonetheless, such procedural decisions required deciding whether either party was likely to succeed on the merits, thereby indicating the court’s probable future conclusion.Footnote ⁶⁵

In the case of In re Abbott, reproductive health centers challenged the Texas governor’s designation of their abortion services as “not immediately medically necessary,” requiring them to close during the emergency in order to preserve PPE.Footnote ⁶⁶ The center argued that its services were time sensitive and used minimal PPE, far less than the PPE needed for childbirth or surgery.Footnote ⁶⁷ Moreover, closing abortion services would actually increase the risk of COVID transmission, because women would travel to open sites in other states to obtain timely abortions. Closing the services would undermine, rather than help, the state’s goal. Under Casey’s principles, the order offered no benefit, but instead imposed a significant burden on the right to terminate pregnancies.

The Fifth Circuit Court of Appeals rejected that argument. It held that Jacobson established “the framework governing emergency exercises of state authority during a public health crisis.”Footnote ⁶⁸ The conclusion that Jacobson governed all emergency measures was a dramatic departure from precedent; Jacobson had not previously been viewed as an emergency case. The court paid lip service to Casey and Whole Woman’s Health, but quoted phrases from Jacobson to craft a standard of review like minimum scrutiny.Footnote ⁶⁹ It held, “A court should ‘ask[ ] whether [the order] imposes burdens on abortion that ‘beyond question’ exceed its benefits in combating the epidemic.”Footnote ⁷⁰ That demands that challengers produce a much higher level of proof than Whole Woman’s Health required. Finding that the order was merely temporary, the court concluded that courts may ask only whether the state has acted in an “arbitrary, unreasonable manner.”Footnote ⁷¹ The court’s formulation gives the state the widest discretion, regardless of the importance of the right: “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”Footnote ⁷² It sustained the closures pending a hearing on the merits. The Eighth Circuit Court Of Appeals, in In re Rutledge, quickly adopted the reasoning of In re Abbott and, applying Jacobson, allowed Arkansas’s emergency ban on abortion services to remain in effect.Footnote ⁷³

Two other federal appellate courts came to the opposite conclusion. They upheld preliminary injunctions against emergency bans on abortion procedures during the COVID-19 pandemic. One day after the Rutledge decision, the Federal Court of Appeals for the Eleventh Circuit in Robinson v. Attorney General found that Jacobson’s “ruling was not a blank check for the exercise of governmental power.”Footnote ⁷⁴ The court approved the Casey standard to assess whether against Alabama’s emergency ban on abortion procedures would impose an undue burden on women’s rights. Finding that it likely would, the court allowed a preliminary injunction to remain in effect pending appeal.Footnote ⁷⁵

The Federal Court of Appeals for the Sixth Circuit explained its similar conclusion in more detail in Adams & Boyle v. Slatery, a challenge by reproductive health clinics to the Tennessee governor’s emergency ban on abortion procedures.Footnote ⁷⁶ As in all these cases, the state’s goal was to preserve PPE and prevent community spread of COVID. Tennessee argued that Jacobson should control the decision and allow the ban to stand.Footnote ⁷⁷ The court stressed the difficulty of applying Jacobson to the dramatically different facts before it. It concluded that even if Jacobson is accepted “at face value,” a woman’s right to a pre-viability abortion is part of “the fundamental law.” After all, the court noted, ordinarily the governor’s order would be an unconstitutional ban on abortion, even if time-limited. The order “that would prevent a woman from exercising her right in-state altogether, or would require her to undergo a more invasive and costlier procedures than she otherwise would have[—]constitutes ‘beyond question, a plain, palpable invasion of rights secured by [that] fundamental law.’”Footnote ⁷⁸ Although the court recognized that “abortion rights during a public health crisis” may not necessarily be “identical to rights during normal times,” it “will not countenance … the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations.”Footnote ⁷⁹

Immediately after the Abbott V decision, Texas Governor Abbott ended his executive order. Then, on January 25, 2021, in a three sentence per curiam decision without opinion, the U.S. Supreme Court granted certiorari in the Texas case, vacated the Abbot V judgment below, and remanded to the Fifth Circuit with instructions to dismiss the case as moot.Footnote ⁸⁰ It did the same with Slatery for the same reason.

The absence of a U.S. Supreme Court decision on the merits leaves lower courts struggling with how to analyze similar cases. Some courts have concluded that the vacated decisions in Abbott and Rutledge cannot be used precedents.Footnote ⁸¹ But others have continued to use Jacobson as a general framework for emergencies.Footnote ⁸²

It seems possible that the judges who allowed the closure of clinics used the COVID epidemic to dilute the importance of the right to make reproductive decisions. These appellate judges used a form of minimum scrutiny as the standard of review and did not require government to prove that closing clinics would preserve any PPE or prevent the spread of COVID. They and lower courts judges often used facts selectively, ignoring medical evidence and emphasizing the temporary nature of closures. Because abortion is a time sensitive procedure, however, such limits effectively prohibit many women from exercising their right to obtain an abortion. Keeping clinics closed during an emergency has the same effect on women as prohibiting abortion services in non-emergency.

E. Judicial Review of Religious Freedom in Emergencies

The second example of altering standards of review concerns religious objections to public health measures. Emergency orders by state governors banned or limited the number of people who are allowed to attend public gatherings in person during the COVID epidemic. Places of worship were often included. They present particular risks, because people from different households typically gather close together for a prolonged periods, usually an hour or more, praying and singing, traditionally without masks.Footnote ⁸³ Multiple outbreaks of infection have been traced to churches.Footnote ⁸⁴ Some religious institutions—mostly Christian churches—challenged their state’s executive orders, claiming that limits on in-person attendance at church services violated their right to exercise their religion, which is protected by the First Amendment of US Constitution.Footnote ⁸⁵ Many lower court decisions held that the limits on attendance were entirely justified on the basis of scientific facts about coronavirus transmission.Footnote ⁸⁶ Ultimately, three cases reached the United States Supreme Court.

The standard of review that the United States Supreme Court had applied to laws that have a secular purpose, but may affect religious practices, has been the relatively deferential minimum scrutiny.Footnote ⁸⁷ A law that is “neutral and generally applicable” is justifiable as long as the state has a legitimate purpose and the law’s requirements or prohibitions are “rationally related” to furthering that purpose.Footnote ⁸⁸ A law is neutral toward religion when it does not single out religion for disfavored treatment or burdens.Footnote ⁸⁹ It is generally applicable when it applies to the general population or similarly situated entities that are not religious.Footnote ⁹⁰ Such a law is constitutional even if it inconveniences religious practices. Classic examples include public health laws, such as mandatory vaccinations.Footnote ⁹¹ In contrast, laws that are not neutral or that target religion for particular burdens are reviewed using strict scrutiny.Footnote ⁹²

Recently, however, a new conservative majority of Justices issued decisions that characterized generally applicable laws as not neutral toward religion. The opinions suggested that these Justices were privileging religious beliefs over general laws intended to protect public welfare, such as laws prohibiting discrimination on the basis of race, color, sex, or disability,Footnote ⁹³ and laws requiring health insurance to cover contraceptives.Footnote ⁹⁴ The challenges to COVID restrictions gave these Justices an opportunity to strengthen protection of religious beliefs, although not without resistance from their fellow Justices. Most cases involved whether to grant or deny an injunction or a stay of a lower court decision pending review on the merits. The Justices do not often explain their reasoning in procedural matters. But in these cases, they made their views clear in concurring and dissenting opinions.

The contrasting views first appeared in South Bay Pentecostal United Church v. Newsom (South Bay I).Footnote ⁹⁵ There, Chief Justice Roberts wrote a brief concurrence agreeing with the per curiam decision not to stay enforcement of a California executive order limiting religious and other non-essential services during the pandemic. He said, our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect,” and they must have “especially broad” latitude, particularly where pandemics are “dynamic and fact-intensive.”Footnote ⁹⁶ Notably, he cited Jacobson v. Massachusetts. Three Justices disagreed. Justice Kavanaugh wrote a dissent, joined by Justices Thomas and Gorsuch, arguing that claims of violations of religious freedom must be judged using the strict scrutiny standard.Footnote ⁹⁷ He and Roberts chose different comparators for assessing discrimination. Kavanaugh claimed that worship services were limited to the lower of one hundred people, or twenty-five percent of the building’s seating capacity, while secular businesses like retail stores and restaurants were not, and therefore California’s guidelines discriminated against places of worship. Roberts wrote that religions were treated the same or better than “comparable secular gatherings, including lectures, concerts, movie showing, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”Footnote ⁹⁸ He characterized grocery stores, banks, and laundromats as dissimilar.

The same split appeared in a similar case from Nevada, Calvary Chapel Dayton Valley v. Sisolak, which denied an injunction against a Nevada order limiting worship attendance to fifty persons.Footnote ⁹⁹ Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented. Justice Alito’s dissent, joined by Justices Thomas and Kavanaugh, pointed out that casinos, bowling alleys, breweries, and fitness facilities may operate at fifty percent capacity.Footnote ¹⁰⁰ In response to the state’s argument that its orders should be upheld under Jacobson, Justice Alito wrote:

Justice Kavanaugh went further, saying, “There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech.”Footnote ¹⁰² In his view, when a state creates categories that favor some but not other similar entities, it must place religious entities in the favored category, granting religion something like a “most favored nation status,” absent a compelling reason to do otherwise.Footnote ¹⁰³

The four dissenting Justices in Calvary Chapel appeared to redefine and increase the importance of the constitutional right to religious freedom.Footnote ¹⁰⁴ In their view, claims of violations of discrimination against religion should normally be subject to strict scrutiny whenever religion is limited more than some secular entities, even when the law does not target religion, even when there are good reasons for different treatment, and even in an emergency. Their view became the majority after Justice Ruth Bader Ginsburg died on September 18, 2020,Footnote ¹⁰⁵ and Amy Coney Barrett became the ninth Justice on October 26, 2020.Footnote ¹⁰⁶

Roman Catholic Diocese of Brooklyn v. Cuomo Footnote ¹⁰⁷ confirmed that a new majority of Justices would apply strict scrutiny to claims of religious freedom. That case considered two challenges to New York Governor Andrew Cuomo’s executive order that imposed different limits on the number of people who could gather in person for non-essential purposes, based on the number of COVID cases in each area or zone of the state. The Roman Catholic Diocese of Brooklyn and Agudath Israel of America argued that limits of ten persons in red zones and twenty-five persons in orange zones violated their religious freedom.Footnote ¹⁰⁸ The executive order did not single out religious groups for special treatment, but also did not include them in the state’s list of “essential” businesses or services. A majority of the Justices agreed that labeling religious services non-essential treated religion differently from other similar activities and was not neutral toward religion.Footnote ¹⁰⁹ Therefore, they concluded, strict scrutiny was the standard of review. While the state’s interest in controlling the pandemic was “unquestionably a compelling interest,” the majority held that the regulations were not “narrowly tailored” to prevent the spread of COVID.Footnote ¹¹⁰ In particular, the majority found that limiting church attendance to ten or twenty-five people was inconsistent with allowing hundreds of people to shop in grocery or other stores. It thus enjoined enforcement of the order pending resolution of the case on its merits. But by deciding that the strict scrutiny standard of review that applied, the ultimate outcome was preordained.Footnote ¹¹¹

The South Bay case (South Bay II) returned to the Supreme Court in 2021, after California Governor Newsom reimposed limits in light of a surge in COVID cases.Footnote ¹¹² Indoor attendance at worship services, restaurants, and move theaters were limited to the lesser of twenty-five percent of building capacity or one-hundred persons.Footnote ¹¹³ In a one-paragraph per curiam decision, the Court enjoined enforcement of the indoor limits on worship—except the twenty-five percent capacity limit—pending resolution of the merits of the case in the lower court.Footnote ¹¹⁴ It allowed enforcement of the ban on singing indoors. Importantly, all Justices agreed that the state has a compelling interest in reducing the risk of coronavirus infection. Chief Justice Roberts, concurring, reiterated his position that “federal courts owe significant deference to politically accountable officials.”Footnote ¹¹⁵ But this time he was unwilling to defer to their judgment that a complete ban on indoor worship was necessary. The South Bay cathedral, with room for 1,000 people, was large enough to safely accommodate more than one-hundred worshippers. “Deference, though broad, has its limits,” he concluded.Footnote ¹¹⁶ Justice Gorsuch would enjoin all the restrictions, indicating that even “subtle departures from neutrality” toward religion trigger strict scrutiny.Footnote ¹¹⁷

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. Notably, she did not rely on Jacobson or any emergency standard of review. Instead, she argued that the other Justices were comparing apples and oranges: “The ‘Constitution does not require things which are different in fact … to be treated in law as though they were the same.’”Footnote ¹¹⁸ By treating “worship services like secular services that pose a much lesser danger,” such as running in and out of a hardware store, she wrote, the Court’s decision “defies our case law, exceeds our judicial role, and risks worsening the pandemic.”Footnote ¹¹⁹ The majority was not insisting on neutrality toward religion, in her opinion, but favoring religion at the expense of scientific expertise and public health.

The Justices hardened their positions when considering yet another modified executive order from California in Tandon v. Newsom.Footnote ¹²⁰ Governor Gavin Newsom’s order limited all religious and secular gatherings inside homes to members of no more than three households. The lower courts denied an injunction sought by pastors who wished to host bible study groups and worship at home.Footnote ¹²¹ The Supreme Court reversed and granted the temporary injunction in a four page per curiam decision, with the same three Justices dissenting.Footnote ¹²² That opinion concluded that the state failed to prove that requiring home worship events to use precautions like those required for retail and entertainment venues would not suffice to prevent the spread of COVID. Thus, the order was not narrowly tailored to avoid unnecessary restrictions on religion and failed the strict scrutiny test.

Despite the obvious disagreement among the Justices over the standard of review in prior cases, the per curiam opinion asserted that the Court’s decisions have made three points clear:

Chief Justice Roberts reported, without opinion, that he would deny the injunction. Justice Kagan, joined by Justices Breyer and Sotomayor, would also deny the injunction. Reprising her dissent in South Bay II, Justice Kagan wrote that the executive order limited all in-home gatherings, whether secular or religious, to three households, properly treating like things alike.Footnote ¹²⁴ By comparing home worship with hardware stores and nail salons, she said, the majority improperly treated unlike things the same. Worse, she wrote, the Court “once more commands California ‘to ignore its experts’ scientific findings,’ thus impairing ‘the State’s effort to address a public health emergency.’”Footnote ¹²⁵

These decisions suggest that a majority of current Supreme Court Justices may have used the coronavirus cases as an opportunity to redefine the standard of review to afford religious rights increased protection from government regulation. The changes are subtle. First, they found that an otherwise generally applicable law was not neutral toward religion if the law imposed fewer restrictions on “any comparable secular activity.” The key to finding a lack of neutrality lay in the choice of which secular activities the Justices considered comparable. Different treatment of religion can be reasonable or unreasonable, depending upon whether the facts justify different treatment. In these cases, the Justices appeared to ignore facts in the record about COVID transmission in retail and religious activities. Instead, they relied on their own assumptions about the risk of infection to find similarities and differences.

F. Implications for Judicial Review in Non-Emergencies

The five Justices who consistently voted to enjoin restrictions on religious worship attendance appear to privilege religious freedom over other rights affected by public health restrictions. This new majority of Justices also appears to believe that the standard of review during the pandemic is the same standard that applies during ordinary circumstances, as seen in their choice of strict scrutiny as the applicable standard.Footnote ¹²⁶ A pandemic may give government a compelling interest in preventing the spread of disease, but any limits on religious activities must be narrowly tailored to advance that interest while infringing on the right as little as possible.Footnote ¹²⁷ Justice Gorsuch wrote, “Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.”Footnote ¹²⁸ In other words, there is no emergency standard of review, at least for religious claims.

In contrast, two appellate courts in cases involving reproductive health care clinics did conclude that Jacobson established a general standard of review or “framework” for emergencies. Because the Supreme Court vacated all four appellate court decisions in the reproductive rights cases, whether or not they relied on Jacobson, without any opinion explaining its reasons, it remains unclear whether the Supreme Court would adopt an emergency standard of review just for reproductive rights. It seems more likely that the new majority of Justices would simply lower the level of scrutiny for laws restricting the right to make reproductive decisions, effectively relegating that right to a lesser status, with or without an emergency.Footnote ¹²⁹

Four indicators suggest that the Court may be using these COVID cases as vehicles to initiate changes in the ordinary standard of judicial review beyond emergencies. First, the new majority of Justices distinguished the right to religious freedom under the First Amendment from substantive due process rights based on the liberty protected by the Fourteenth Amendment, which include the right to terminate a pregnancy. Justice Gorsuch, concurring, wrote, “Government is not free to disregard the First Amendment in times of crisis.”Footnote ¹³⁰ Justice Kavanaugh posited three “red lines that a State may not cross even in an emergency.”Footnote ¹³¹ Notably, he did not include Fourteenth Amendment substantive due process rights. Instead, he argued that “courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business” and cited Jacobson.Footnote ¹³² Jacobson decided a substantive due process liberty claim. This suggests that at least four Justices would not necessarily apply the ordinary standard from Casey and Whole Woman’s Health during an emergency.Footnote ¹³³ However, because they appear to apply the ordinary standard in cases involving other rights, they may be signaling a change in the ordinary standard for abortion cases, one that would be more deferential to the state and less protective of a woman’s right.

Second, the majority indicated that even temporary restrictions on religious freedom during a pandemic inflicted a cognizable injury on worshippers. One requirement for litigants seeking a preliminary injunction is to demonstrate that they would be subjected to “irreparable injury” if the challenged order were not enjoined pending litigation on the merits.Footnote ¹³⁴ In Roman Catholic Diocese, the majority wrote, “‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”Footnote ¹³⁵ This contrasts with the now vacated Abbott V decision, which made no mention of the possibility that the loss of a Fourteenth Amendment substantive due process right could constitute irreparable injury. The lack of access to abortion services, even for a week or so, can extend pregnancy beyond the time within which abortions are legal under state law. Abortion delayed often means abortion denied, which is denial of the right. Moreover, women who traveled out of state for abortion services faced the risk of contracting COVID, itself a clear injury.

Third, the Justices opinions suggest that a majority will see unconstitutional discrimination against religion in many laws that would have been upheld as neutral and generally applicable in the past. They found discrimination against religion in facially neutral COVID orders by selecting particular activities and rejecting others for comparison with worship services. For example, California’s executive order in Tandon was facially neutral; it limited all in-home gatherings to three households. The majority instead compared in-home religious gatherings not to in-home political and social gatherings, but to shopping in commercial buildings. They concluded that in-home religious gatherings suffered from discrimination, because some retail businesses could accept a large number of people who went in and out.Footnote ¹³⁶ This allowed them to conclude that the order was not neutral, but discriminated against religion, which required strict scrutiny. As Justice Kagan wrote in Tandon, “the per curiam’s analysis of this case defies the factual record.”Footnote ¹³⁷ In South Bay II, she wrote that the majority “insists on treating unlike cases, not like ones, equivalently.”Footnote ¹³⁸

Finally, the Justices appear inconsistent in their demands of the litigants, complaining that states had not provided enough evidence of the need for restrictions on religion, while speculating about the likelihood of transmission in religious and secular activities.Footnote ¹³⁹ To be sure, there were instances of states unadvisedly allowing economically powerful industries to open with larger capacities than religious gatherings. The best example is that of casinos in Nevada.Footnote ¹⁴⁰ However, equating worship services with banks and grocery stores seems inaccurate and disingenuous. In the reproductive clinic cases, courts varied in their reliance on the factual record. Abbott V and In re Rutledge accepted the states’ arguments that the clinics could jeopardize the PPE supply, while rejecting or ignoring the evidence that clinic closures would harm women, depriving many, if not most, of their access to abortion. On the other hand, Slatery and Robinson took the evidence of harm more seriously and issued a preliminary injunction against clinic closures. If the Court uses facts to decide whether a constitutional right is violated, it should get the facts right, especially in an emergency when lives may be at stake.Footnote ¹⁴¹ If facts can be misperceived or manipulated to achieve a preferred outcome, the integrity of judicial review is at risk.