The Constitutionality of Public Health Regulations During a Time of Pandemic: Jacobson v. Massachusetts, 197 U.S. 11 (1905).

From Elon Musk to armed protesters occupying the Michigan Capitol, every day we hear claims that the COVID-19 stay-at-home and safer-at-home orders issued by states and counties are violating constitutional rights. As noisy as these people are, they are often flat wrong. Moreover, businesses and individuals who blatantly disregard public health orders, rather than litigating their constitutionality, are eroding the rule of law.

The constitutionality of the exercise of the police power by state and local governments to protect public health in times of emergency was settled by the Supreme Court 115 years ago in Jacobson v. Massachusetts, 197 U.S. 11 (1905). The Supreme Court rejected Jacobson’s claim that the state's compulsory small pox vaccination law violated his Fourteenth Amendment right "to care for his own body and health in such way as to him seems best."

“[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

Id. 26 (1905).

Jacobson remains the law of the land and has been cited in the past few months to reject constitutional challenges to stay-at-home orders and public health regulations. See e.g. SH3 Health Consulting, LLC v. St. Louis Cnty. Exec. Dr. Sam Page, No. 4:20-cv-00605 SRC, at 11 (E.D. Mo. May 8, 2020) (rejecting a challenge to a public health order closing non-essential businesses).

Interestingly, the application of Jacobson does not fall neatly into liberal vs. conservative categories. In a curious turn of events, Jacobson has become important in abortion-related cases, where public health orders have been used to block even early term abortions that are obviously time-sensitive.  See In re Abbott, No. 20-50264 (5th Cir. Apr. 7, 2020) (overturning a District Court order enjoining a Texas public health order restricting elective surgeries during the pandemic); In re Abbott, No. 20-50264 (5th Cir. Apr. 7, 2020).

Of course, there will be litigation over the details and context of each public health regulation under the  Jacobson framework, as seen in the abortion-related litigation. See Adams & Boyle, P.C. v. Slatery, No. 20-5408, at *17 (6th Cir. Apr. 24, 2020), affirming in part the District Court’s order enjoining Tennessee from enforcing its general ban on elective and non-urgent surgeries against doctors performing abortion procedures. (“We conclude by acknowledging that orders analogous to EO-25 have generated a flood of litigation the past few weeks, and that judges across the country have reached differing conclusions as to the orders' legality. Compare, e.g., In re Rutledge, No. 20-1791 (8th Cir. Apr. 22, 2020); In re Abbott, ---F.3d ---, 2020 WL 1911216 (5th Cir. Apr. 20, 2020); In re Abbott, 954 F.3d 772 (5th Cir. 2020), with Robinson v. Attorney General, --- F.3d ---, 2020 WL 1952370 (11th Cir. Apr. 23, 2020); In re Abbott, 2020 WL 1911216, at *18-30 (Dennis, J., dissenting); In re Rutledge, No. 20-1791, slip op. at 24 (Loken, J., dissenting); South Wind Women's Ctr., LLC v. Stitt, 2020 WL 1932900 (W.D. Okla. Apr. 20, 2020) (Goodwin, J.).”)

As these cases demonstrate, however, the rule of law requires litigation, not self-help. Blatant disregard for public health regulations erodes the rule of law. Cries of unconstitutionality and fascism don’t cut it. If you don’t like a public health order or regulation, file a lawsuit.

The Supreme Court described the stakes clearly:

“We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the State. If such be the privilege of a minority  then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the State.”

Jacobson v. Massachusetts, 197 U.S. 11, 37-38 (1905).

The Jury Trial in a Time of Pandemic

My federal jury trial in a civil case scheduled for early June 2020 has been continued, rightly so. All trials in the District of Colorado were previously vacated and continued through May 29, 2020, so it seemed unlikely that a civil jury trial would go forward so soon.  And this got me to thinking: What will jury trials look like going forward?  Will older people or others at risk be excused from jury duty? Will the virus skew the make-up of juries and create appellate challenges? How will the pandemic impact speedy trial rights under the Sixth Amendment in criminal prosecutions?

COVID-19 provides a needed reminder that we have a Constitutional right to a jury trial.   

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The Seventh Amendment, which applies to civil suits, provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The preservation of these Constitutional rights poses critical challenges for our courts and trial lawyers. Jury trials must be resumed as soon as reasonably practicable, with priority given to criminal trials. Careful thought must be given to jury composition and impartiality. How will courtroom layout be affected? Will only 10 people be allowed in the courtroom at a time? Will lawyer movement in the courtroom be restricted? Will masks be required for jurors, lawyers, parties, witnesses and/or the Judge? Would masks affect evaluation of witness credibility? Are jury trials by video conference possible? And, on a more mundane level for all trials, bench and jury, will hotel and restaurant accommodations be available for out-of-town parties and witnesses?

We fought a Civil War without suspending the Constitution. We can work our way through these questions and challenges during this time of pandemic. A crisis has a way of focusing the best legal and constitutional minds in the country.