How U.S. Pandemic Restrictions Became a Constitutional BattlefieldRoundup
tags: public health, COVID-19
JOHN FABIAN WITT is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School.
KIKI MANZUR is a 2020 Yale Law School graduate.
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.
A LESS LITIGIOUS TIME
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.”
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