Balancing Liberty and Public Health: Civil Liberties in a Time of Pandemic
This module introduces the basic concepts of public health law in the United States, with an emphasis on exploring the inherent tension between the measures taken by government to promote the health and well being of the community and individual rights. In Session 1, we explore Liberty and Public Health in Historical Perspective. In Session 2, we examine the Constitutional Framework that both empowers and limits government action on behalf of public health. In session 3, we examine these public health law principles in action in the cases that have arisen recently as a result of the COVID19 pandemic.
In this Module, you will be introduced to the basic concepts of public health law in the United States. There is an inherent tension between the measures taken by government to promote the health and well being of the community and individual rights. This Module examines this tension with three sessions. In Session 1, we explore Liberty and Public Health in Historical Perspective. We will read and discuss how 19th century advances in science and public health resulted in what we call a new Public Health Paradigm that legitimized the exercise of government power to protect public health. We then discuss the emergence of a competing Rights Paradigm that in the second half of the 20th century gave more weight to individual rights. In Session 2, we examine the Constitutional Framework that both empowers and limits government action on behalf of public health. Discussed in this section are the constitutional principles of federalism, state police powers, and judicial review. The landmark U.S. Supreme Court decisions in Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health (1902) and Jacobson v. Massachusetts (1905) are discussed and analyzed. In Session 3, the final session, we examine these public health law principles in action in the cases that have arisen recently as a result of the COVID-19 pandemic. After discussing several recent cases, we ask you to decide three hypothetical cases. Afterwards, we ask you to test your knowledge with questions based on the readings and other materials collected in this module. Finally, join in the debate in the Discussion Forum on such topics as the consideration of duties and responsibilities along with individual rights when public health is at issue and the lessons learned today for the next pandemic.
By the end of this module, you should be able to:
- Understand key constitutional/legal principles used in discussion of public health law
- Identify the areas of U.S. law that govern specific public health measures, such as mandatory vaccination, quarantine, contact tracing, and shut-down/stay-at-home orders
- Apply these basic legal principles to various public health measures that have been employed recently and assess their constitutionality
- Reading: Jacobson v. Massachusetts (1905)
- Reading: L. Gostin, “Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension,” American Journal of Public Health
- Reading: J. Colgrove and R. Breyer, “Manifold Restraints: Liberty, Public Health and the Legacy of Jacobson v. Massachusetts,” American Journal of Public Health
- Reading: W. Parmet, “Rediscovering Jacobson in the Era of COVID-19,” Boston University Law Review Online
- Lecture: Introduction and Liberty and Public Health in Historical Perspective
- Questions to Consider:
- Describe how the balance between individual liberty and public health was tipped in the landmark case Jacobson v Massachusetts (1905)?
- In his commentary on the Jacobson case 100 years later, Professor Gostin identified four standards that the U.S. Supreme Court relied on in reaching that decision. Identify these standards.
- Do you think the framework for balancing liberty and public health enunciated in 1905 is still valid today?
- The rhetorical framing of the debate often influences policy. In thinking about the public health measure of mandatory vaccination, is the debate “liberty” vs “government power” or “science” vs “ignorance”? Explain how policymakers today have framed the debate over measures designed to slow the spread of COVID-19.
- Professor Gostin argues that the “primary legacy of Jacobson…is its defense of social-welfare philosophy and police power regulation.” Do you think this is a legacy worth continuing?
- James Colgrove and Ronald Bayer argue that “it was the AIDS epidemic that provided the most fundamental reconceptualization of the relationship between public health and the claims of individual rights.” Do you agree?
- What does Wendy Parmet mean when she describes the landmark Jacobson case as “Janus faced”? Here is the passage in full: “…in a Janus-faced opinion, Jacobson looked back to its nineteenth century police power jurisprudence and forward to the fundamental rights jurisprudence that will develop in the mid-twentieth century.” How does this feature affect the “legacy” of Jacobson?
- Reading: Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380 (1902)
- Reading: Jared Cole, “Federal and State Quarantine and Isolation Authority,” Congressional Research Service
- Reading: “Letter from President Trump on Emergency Determination under the Stafford Act” The White House
- Reading: Lindsay Wiley & Stephen Vladeck, “Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review,” Harvard Law Review Forum
- Video: “Lawrence Gostin on Federal Government Powers during Health Emergencies”
- Video: “The Wisconsin Decision”
- Lecture: Liberty and Public Health
- Questions to Consider:
- Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health (1902) gave the U.S. Supreme Court an opportunity to resolve disputes over the sometimes conflicting regulatory powers of the national government and the states. Based on the Court’s reasoning, under what conditions would a state’s quarantine law, exercised to protect the health and well-being of the community, be found to violate the U.S. Constitution?
- Jared Cole argues that the federal structure of the American political system sometimes causes conflicts between the national government and the states when what is needed is cooperation. What mechanisms are there to enhance the responses of the national government and the states to the national threats of pandemic?
- What were the consequences of President Trump’s letter on March 13, 2020, determining that the COVID-19 pandemic “is of sufficient severity and magnitude to warrant an emergency declaration under the Stafford Act?
- Reading: South Bay United Pentecoastal Church, etal. v. Newsom
- Reading: Roberts v. Neace
- Reading: Planned Parenthood v. Abbott
- Reading: David M. Studdert, Mark A. Hall, and Michelle M. Mello, “Partitioning the Curve — Interstate Travel Restrictions During the COVID-19 Pandemic,” New England Journal of Medicine
- Video: “Religious Freedom Restoration Act”
- Lecture: Introduction & Religion
- Lecture: Masks
- Lecture: Travel
- Lecture: Abortion
- Lecture: Shutdown
- Lecture: Conclusion
- Additional Resources: Tom Ginsburg and Mila Versteeg, States of Emergency. Part 1 and Part 2
- Questions to Consider:
- In what ways are the contrasts between Chief Justice Roberts’ opinion concurring in denial of application for injunctive relief, citing Jacobson, and the dissenters’ opinions citing First Amendment rights in the recent Supreme Court decision in South Bay United Pentecostal Church v. Newsom (2020) a reflection of the inherent tension between liberty and public health?
- How did the U.S. Court of Appeals, 5th Circuit, understand and apply the landmark case Jacobson v. Massachusetts in the recent case called Planned Parenthood v. Abbott?
- Should the duties and responsibilities that citizens owe to one another be considered along with individual rights?
- What lessons have we learned today that will be useful for the next pandemic in the future? To what extent have the experiences of other advanced, liberal-democratic societies been helpful in thinking about how the balance between liberty and public health should be set?
- Should the duties and responsibilities that citizens owe to one another be considered along with individual rights?
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What lessons have we learned today that will be useful for the next pandemic in the future? To what extent have the experiences of other advanced, liberal-democratic societies been helpful in thinking about how the balance between liberty and public health should be set?
How would you decide these hypothetical cases? “You be the Judge.”
Case 1
Due to the COVID–19 pandemic, the State of Jefferson limits attendance of non–essential gatherings to 50 individuals. This limit includes weddings. Restaurants in the state are allowed to operate at 50 percent capacity. Alex (A) and Bea (B) want to hold their wedding ceremony at a restaurant. The restaurant’s permissible dining capacity at 50 percent exceeds the number of guests A and B have invited.
How would you decide on A and B’s claims: ( 1) that the state’s 50–person gathering restriction violates their First and Fourteenth Amendment rights of free exercise of religion by “forbidding them to preside over or participate in religious weddings according to the dictates of their conscious and religious beliefs”; (2) that the 50–person gathering restriction violates their First and Fourteenth Amendment rights of freedom of speech, assembly, expression and intimate association by forbidding them to gather with their invited guests for a religious purpose; (3) that the 50–person gathering restriction violates their Fourteenth Amendment rights of equal protection and substantive due process in that it treats religious conduct (i.e., weddings) differently than non–religious conduct (including restaurant patronage); and (4) that the state acted ultra vires in enacting the many restrictions related to COVID–19 pursuant to the Governor’s emergency power, including the 50–person gathering restriction.
Case 2
In response to the ongoing COVID–19 pandemic, the Governor of the State of Madison has issued a series of executive orders, including Executive Order 2020–123 which prohibits gatherings greater than fifty people but exempts the free exercise of religion from this limit. The chair of the local chapter of the Republicratic Party wants to challenge this exemption in federal district court as violating their rights under the First and Fourteenth Amendments.The party chair alleges that by exempting the free exercise of religion from the general gathering limit, the governor has created an unconstitutional content–based restriction on speech. The party chair has filed a complaint and a motion for a temporary restraining order and preliminary injunction because the local party chapter wants to hold political party events larger than fifty people, including a picnic on July 4th. The party chair seeks a declaration stating that treating political party gatherings differently than religious gatherings violates the First and Fourteenth Amendments. The party chair also asks the court to enjoin the governor from enforcing the Executive Order against political parties.You are advising the governor. What are the best arguments that the court should deny the party chair’s claims and that the Executive Order is constitutional?
Case 3
The COVIDSafe app has been used in Australia to help state and territory health officials to quickly identify and contact people who may have been exposed to COVID–19 (called ‘close contacts’). Without the help of technology, finding close contacts relies on people: being able to recall everyone they have been in closecontactwith. This app provides local health officials with every person who was in the vicinity by simply tracking where they were with the GPS technology on their smartphones. Fearing a spike in COVID–19 cases, the town of Oakmount, California required its citizens to install this app on their cell phones. Several weeks later, a positive case from a person known to have attended a nudist colony prompted officials to reach out and contact all individuals/cell phone users who were determined to have been in the vicinity by the automated features in the app. Membership lists and other information about those attending the private nudist colony have always been kept in strictest confidence. As authorities widened their search of persons who may have come into contact with the infected person, names soon found their way into the local newspaper. Several of those named individuals and ‘close contacts’ brought suit against the local health officials for violating their rights to privacy. Was the use of the COVIDSafe app and the subsequent release of the names of several individuals who were at the nudist colony a violation of plaintiff’s right to privacy?
- Lawrence Gostin, Lindsay F. Wiley, and Thomas R. Frieden, Public Health Law: Power, Duty, Restraint, 3rd edition (University of California Press, 2016)
- Lawrence Gostin and Zita Lazzarini, Human Rights and Public Health in the AIDS Pandemic (Oxford University Press, 1997)
- Wendy K. Mariner, George J. Annas, Nicole Huberfeld, and Michael R. Ulrich, Public Health Law (Carolina Academic Press, 2019)
- Wendy Parmet, Populations, Public Health, and the Law (Georgetown University Press, 2009)
- Podcast series “COVID-19 Briefings” Public Health Law Watch https://www.publichealthlawwatch.org/covid19-briefings
In this module, you learned what makes discussion of liberty and public health so controversial–the inherent tension between public health measures designed to promote the well-being of the community and individual rights. The controversial nature of this subject often results in lawsuits asking courts to decide whether the interests of the community or the interests of the individual will prevail. We examined how judges approach these cases by focusing on the constitutional and legal framework which governs this area of U.S. law. And when you were given the chance to apply these legal principles in some hypothetical cases, we are sure that you struggled in the same way judges do to find the “right” balance between the public health interests of the larger society and the fundamental rights of individuals.