A Jacobson in 1905

Around the turn of the twentieth century, life-threatening communicable diseases put the public’s health in more or less constant peril. To control the spread of disease, state and local officials routinely brought their police power to bear against businesses and individuals. For smallpox, the availability of an effective vaccine – the first ever developed – prompted state and local governments to require individuals to submit to vaccination under penalty of fines, exclusion from school, and even by force.Footnote ⁶ To cope with frequent smallpox outbreaks, the Massachusetts legislature passed a statute authorizing local health boards to require residents to be vaccinated if, in the opinion of the medical experts on the board, it was “necessary for the public health.”Footnote ⁷ The statute imposed a penalty of five dollars for anyone over the age of twenty-one who failed to comply with a local health board’s vaccination requirement. In 1902, the board of health of the city of Cambridge, Massachusetts adopted a regulation requiring smallpox vaccination in response to a worsening outbreak. Henning Jacobson, the pastor of a church in Cambridge, refused to be vaccinated. In a criminal proceeding the city initiated to collect the fine, Jacobson claimed that requiring vaccination violated the Due Process Clause of the Fourteenth Amendment, among other provisions.Footnote ⁸ Jacobson argued that the state vaccination law was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”Footnote ⁹ The case eventually made its way to the Supreme Court, resulting in one of the first major decisions where the Court applied the Fourteenth Amendment to a police power regulation.

The Supreme Court rejected Jacobson’s arguments and upheld the state vaccination law. In an opinion written by Justice John Marshall Harlan, the Jacobson Court recognized that the Fourteenth Amendment does impose limits on the state’s police power. Harlan reasoned that the

The Court directed that judges should overturn police power laws only in cases where “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”Footnote ¹¹ Yet the Court reasoned that “liberty regulated by law”Footnote ¹² subjects individual rights to “restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”Footnote ¹³ Under the circumstances, the Massachusetts vaccination law was reasonable, proportionate to the threat, and consistent with public health necessity; consequently, the Court upheld the statute.

Although the Cambridge Board of Health had acted in response to a smallpox outbreak, the Jacobson Court did not clearly limit its holding to public health emergencies – or even to public health regulations. The standard of judicial review that the Court articulated and applied in Jacobson was, at the time, commonly applied by state courts in challenges to police power regulations generally (of which public health laws are a subset).Footnote ¹⁴ In a dissenting opinion that Justice Harlan authored shortly after Jacobson, he argued that the definitive standard of review for any police power regulation was the one set forth in Jacobson.Footnote ¹⁵ Several months later, in a case upholding state regulations governing the sale of milk, the Court’s majority opinion cited Jacobson for the proposition that “the state has a right, by reasonable regulations, to protect the public health and safety,” without any reference to epidemics or other exigencies.Footnote ¹⁶ Jacobson was “the Court’s first systematic statement of individual rights as limitations imposed on government.”Footnote ¹⁷ It is best understood as having “established a floor of constitutional protection” that courts have subsequently built upon in cases ranging far beyond the epidemic context in which the regulation upheld in Jacobson was adopted.Footnote ¹⁸

When Jacobson was decided, the Supreme Court had not yet developed the tiered levels of review (rational basis review, intermediate scrutiny, and strict scrutiny) that courts now use to adjudicate federal constitutional rights. Beginning in the mid-twentieth century, the Court developed these varying levels of judicial review for different types of civil liberties claims.Footnote ¹⁹ The intermediate and strict scrutiny standards that now determine the outcome in some types of cases are far less deferential to the factual determinations and policy choices of the legislative and executive branches. In modern cases that infringe on fundamental rights, judges are supposed to probe the government’s asserted interests and the suitability of fit between its chosen means and stated ends more deeply, rather than refraining from overturning any law that is arguably reasonable.

B Jacobson in 2020

In the early weeks of the COVID-19 pandemic, state and local officials across the United States issued hundreds of unprecedented executive orders closing businesses, restricting travel, ordering the general public to stay at home, and implementing other measures in hopes of avoiding the devastation experienced in Wuhan, Lombardy, and New York City. Coronavirus mitigation measures adopted in 2020 and 2021 differed from those implemented in the 1918 flu pandemic and mid-century polio outbreaks in important ways. Relying on authority delegated in general emergency and disaster management statutes that largely date to the 1960s and 1970s, governors, not boards of health, typically took the reins on coronavirus mitigation orders.Footnote ²⁰ Many coronavirus mitigation orders remained in place longer than the average length of closures in 1918. In addition, coronavirus mitigation orders included innovative measures that had not been implemented in response to previous epidemics.

One innovation was restrictions on elective medical procedures. Most governors either ordered or recommended that health care providers cease procedures deemed elective, nonessential, or not lifesaving. These measures were intended to reduce close contacts among people who could transmit infection and to preserve medical resources for the treatment of COVID-19 patients. In Texas, the state attorney general interpreted Governor Abbott’s executive order to effectively bar all abortions as elective medical procedures. Providers and patients filed suit challenging the order’s constitutionality.

In re Abbott, decided by the Fifth Circuit in April 2020, was one of the first major court decisions upholding a COVID-19 mitigation order.Footnote ²¹ The plaintiffs were abortion providers who filed a lawsuit arguing that to the extent that the Texas emergency order banned abortions, it violated the Fourteenth Amendment’s Due Process Clause. The district court judge who initially heard the case granted a temporary restraining order to the plaintiffs (barring Texas from enforcing its prohibition on abortions while litigation continued) without referencing Jacobson at all.Footnote ²² The judge held that under the Supreme Court’s abortion precedents dating back to Roe v. Wade, “[t]here can be no outright ban on such a procedure.”Footnote ²³ He referred only obliquely to the defendant’s argument that Jacobson supplied the correct standard, not Roe or subsequent cases establishing abortion rights: “This court will not speculate on whether the Supreme Court included a silent ‘except in a national emergency clause’ in its previous writings on the issue [of abortion].”Footnote ²⁴

The Fifth Circuit stepped in to stay the lower court’s decision, effectively lifting the restraining order and permitting the state to enforce its restrictions on abortion while litigation continued. The appellate court accepted the defendant’s argument and interpreted Jacobson in a new way. Describing Jacobson as imposing “the controlling standards, established by the Supreme Court more than a century ago, for adjudging the validity of emergency measures,” the majority set aside the prevailing test for abortion laws – that is, whether the regulation at issue imposes an “undue burden” on the right to choose an abortion. The court suspended the standard of review that would ordinarily apply to restrictions on abortion in favor of a rule that “the scope of judicial authority to review rights-claims” during “a public health crisis” is limited to cases where “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”Footnote ²⁵ In dicta, the court suggested that this minimal level of scrutiny applies equally to “one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”Footnote ²⁶ The appellate court turned the lower court’s reasoning on its head, arguing that if the Supreme Court had intended for Roe or its subsequent cases on abortion rights to be exceptions to the general rule that in a public health emergency the Jacobson test applies, it would have said so in specific terms.Footnote ²⁷ In the months that followed, dozens of additional courts adopted the Jacobson suspension doctrine to uphold orders closing businesses, limiting gatherings, directing the general public to stay at home, and restricting interstate travel.

In brief opinions accompanying a series of preliminary orders beginning in May 2020, individual Supreme Court justices revealed their positions on Jacobson’s relevance to COVID-19 disputes. In the first such case, South Bay United Pentecostal Church v. Newsom,Footnote ²⁸ Chief Justice John Roberts authored an opinion concurring with the majority’s decision to leave California’s limits on religious services in place while litigation continued. Roberts cited Jacobson favorably for the general proposition that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”Footnote ²⁹ His opinion indicated that he believed California’s restrictions would pass muster under ordinary standards of review. Justice Brett Kavanaugh wrote a dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch. The Kavanaugh dissent indicated that these three justices would have provided injunctive relief to the plaintiff church because they believed that California’s restrictions failed to satisfy ordinary standards of review. Neither of the opinions discussed the suspension doctrine that had taken hold among many lower courts.

In a similar case in July, the Supreme Court again denied preliminary injunctive relief to a church challenging COVID-19 restrictions. In his dissenting opinion in Calvary Chapel Dayton Valley v. Sisolak, Justice Samuel Alito explicitly discussed the suspension doctrine. Alito (writing for himself, Kavanaugh, and Thomas) argued that “it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic.”Footnote ³⁰

In October, the Court refused to stay a lower court order enjoining limits on mail-in voting. In Democratic National Committee v. Wisconsin State Legislature,Footnote ³¹ Kavanaugh (writing in dissent to indicate that he would have overturned the lower court decision and let the limits on mail-in voting stay in place) endorsed “a limited role of the federal courts in COVID-19 cases.”Footnote ³² Kavanaugh quoted Roberts’s earlier invocation of a basic principle from Jacobson, but without attribution to Roberts or Jacobson. His version replaced “officials” with “legislatures.”Footnote ³³

In November 2020, shortly after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg on the Court, the new majority changed the course of the Court’s religious liberty jurisprudence and rejected the suspension doctrine – for First Amendment religious liberty claims, at least.Footnote ³⁴ In Roman Catholic Diocese of Brooklyn v. Cuomo,Footnote ³⁵ the Court granted preliminary relief to the houses of worship who filed suit, enjoining New York from enforcing occupancy limits on religious services. In a per curiam (unsigned) opinion, the majority applied strict scrutiny – the highest standard of review. Under the suspension doctrine, the Court would not have applied strict scrutiny. But it need not have done so under ordinary standards of review either. To trigger strict scrutiny, the majority found that New York’s COVID-19 mitigation orders were not neutral laws of general applicability, but rather “single[d] out houses of worship for especially harsh treatment.”Footnote ³⁶ This determination departed from the Court’s past religious liberty precedents. It also misrepresented the facts on the ground.

The majority opinion did not discuss Jacobson or the suspension doctrine explicitly, but several justices did discuss it in their concurrences and dissents. Gorsuch concurred in the decision to grant injunctive relief. In an opinion joined by no other justice, Gorsuch harshly criticized the suspension doctrine and accused Roberts of endorsing it by citing Jacobson in his South Bay concurrence. Gorsuch argued that “Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so. Instead, Jacobson applied what would become the traditional legal test associated with the right at issue.”Footnote ³⁷ Gorsuch implied that rational basis review would be the proper test for a Fourteenth Amendment challenge to a vaccination law under modern precedents because a requirement to get vaccinated, pay a fine, or establish that one qualified for an exemption would not implicate a fundamental right that would trigger heightened review.

In their Roman Catholic Diocese of Brooklyn dissent, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor quoted Roberts’ South Bay concurrence (from May 2020) favorably. They appeared to agree with Roberts “that courts must grant elected officials ‘broad’ discretion when they ‘undertake to act in areas fraught with medical and scientific uncertainties.’”Footnote ³⁸

Roberts wrote a separate dissent in Roman Catholic Diocese of Brooklyn to distinguish between the suspension doctrine and the basic principles of Jacobson that he had previously endorsed in South Bay. He defended himself against Gorsuch’s accusations. Arguing that “the actual proposition [he] asserted” (and cited Jacobson in support of) in his South Bay concurrence “should be uncontroversial,” Roberts concluded that Gorsuch’s “concurrence must reach beyond the words themselves to find the target it is looking for.”Footnote ³⁹ Roberts appeared eager to distinguish his own view of Jacobson from that of the lower courts who had adopted the suspension doctrine.

In my view, the Supreme Court was correct to reject the suspension doctrine in favor of applying ordinary standards of review.Footnote ⁴⁰ The point is not that the emergency orders were not justified; rather, suspending ordinary judicial review is the wrong way to evaluate them. I strenuously object to the Fifth Circuit’s novel interpretation of Jacobson, which I have characterized in previous work with constitutional law expert Steve Vladeck as deeply misguided.Footnote ⁴¹ We argued that the vast majority of COVID-19 mitigation orders (but probably not the across-the-board ban on abortions challenged in In re Abbott) would have passed muster under ordinary standards of review. Subsequent cases bore out this prediction. The vast majority of COVID-19 cases that rejected the suspension principle and applied modern standards of review ultimately upheld emergency measures.

The balancing and proportionality tests that modern standards direct the courts to employ are adaptable to emergency conditions. During an emergency, the government’s purpose becomes far more compelling and the evidence a court will expect it to present will understandably and appropriately be less well developed. By interpreting Jacobson as a directive to suspend ordinary standards of judicial review during a public health emergency, many lower courts in 2020 sidestepped important legal questions. They abdicated their constitutional responsibility for “forc[ing] the government to do its homework – to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes.”Footnote ⁴² Ironically, by using Jacobson as a kind of rubber stamp and failing to require government officials to justify their orders in the ordinary way, these courts robbed government officials of firm precedents to support similar orders in the future.

Fortunately, some lower courts rejected the suspension principle and applied ordinary standards of review throughout 2020. As a result, when the Supreme Court rejected the suspension doctrine in November 2020, at least some federal courts had already upheld every major type of COVID-19 mitigation order pursuant to ordinary standards of review.Footnote ⁴³

A The “Second Language” of Community

Advocates often struggle to build support for public health interventions because individualistic cultural norms tend to dominate political debates. Robert Bellah and colleagues have described individualism as the “first language” of American culture, “centered on the values of freedom, self-determination, self-discipline, personal responsibility, and limited government.”Footnote ⁴⁵ Public health scholars have noted that the “second language” of America identified by Bellah et al. – “a language of inter-connectedness[,] egalitarian and humanitarian values, of interdependence and community” – is the “first language” for public health.Footnote ⁴⁶ Jacobson is a Rosetta Stone by which these two languages are connected in American public health jurisprudence.

The enduring meaning of Justice Harlan’s “nuanced and Delphic opinion” in Jacobson is that in emergencies,Footnote ⁴⁷ as in routine times, individual liberties should be balanced against collective needs. The Court put “the duty” of “every well-ordered society” to “conserv[e] the safety of its members” on an equal footing with the right of “the individual” to “assert the supremacy of his own will” and to “dispute the authority … of any free government existing under a written constitution, to interfere with the exercise of that will.”Footnote ⁴⁸ Jacobson offered a ringing endorsement of the social compact in which cooperative efforts to ensure the public’s health and safety are important counterweights to individual rights. “There are manifold restraints to which every person is necessarily subject for the common good,” the Court reasoned.Footnote ⁴⁹ “On any other basis organized society could not exist with safety to its members.”Footnote ⁵⁰

Even if Jacobson’s highly deferential standard no longer applies to laws that infringe on fundamental rights under modern precedents, the basic principles of public health necessity and proportionality that the Jacobson Court set forth remain relevant.Footnote ⁵¹ Modern standards of review may calibrate the scales differently, but collective necessities still serve as counterweights when courts exercise their duty to protect individual rights. In the post-2020 era, public health advocates will need to craft new arguments that incorporate the basic principle that collective needs may outweigh individual rights within the bounds of modern standards of review that require the government to articulate in more compelling terms its purpose and why the means it has chosen are likely to further that end.

B Deference to Democratic Delegation

Though it has primarily been relied on in cases asserting individual liberties, Jacobson also offers enduring counsel for courts adjudicating claims that public health measures violate the structural constraints imposed by constitutional commitments to separation of powers.Footnote ⁵² Concluding that “[t]he authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body,” the Court in Jacobson approved the legislature’s choice “to refer that question, in the first instance, to a board of health composed of persons … appointed … because of their fitness to determine such questions.”Footnote ⁵³ Thus, the Court endorsed judicial deference to the scientific findings of experts exercising delegated authority, noting that the statutory standard authorized local officials to make vaccination compulsory “only when, in the opinion of the board of health, that was necessary for the public health or the public safety.”Footnote ⁵⁴

As a statutory guardrail, the standard of public health necessity has an impressive pedigree. State public health statutes typically delegate authority to health officials to take measures they deem “necessary” to prevent or slow the spread of communicable disease during a declared emergency. Indeed, the public health necessity standard provides more guidance to executive branch officials (and the courts reviewing their actions) than many of the general emergency or disaster management statues on which governors frequently relied during the COVID-19 pandemic. Some governors used general emergency management statues to prohibit local government measures – and even private business policies – that were more protective of public health than the governor preferred, arguing that these statutes give unfettered discretion to the state executive to manage emergencies as they see fit.Footnote ⁵⁵ Courts have not typically relied on Jacobson in recent cases interpreting the breadth of officials’ authority under these provisions and whether they run afoul of the constitutional doctrine that legislatures cannot delegate their authority to the executive branch without providing sufficient principles to guide officials’ exercise of discretion. But the courts can and should rely on the basic principles set forth in Jacobson when they are called on to interpret public health statutes.