In 1905 the U.S. Supreme Court upheld a state’s exercise of general police powers to promote public safety during a public health crisis. In Jacobson v. Massachusetts (197 U.S. 11 (1905)), the Court considered the enforcement of a compulsory smallpox vaccination law. Pastor Henning Jacobson argued that requiring him to vaccinate his children was an invasion of his liberty as guaranteed by the Preamble to the Constitution. In upholding the law, the Supreme Court determined that the State retains the authority to enact such a statute pursuant to its police power. The Court recalled that it had “distinctly recognized the authority of a State to enact quarantine laws and ‘health laws of every description’ . . . to safeguard the public health and the public safety.” It reiterated that “the 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.” This century-old case continues to be invoked today — and more so in the past few months in the face of the COVID-19 global pandemic and various executive orders. Recent stay-at-home orders have caused a flood of litigation by abortion centers, religious organizations and other businesses. Federal and state courts across the nation have struggled to balance competing fundamental rights in evaluating these orders.
First Amendment Cases and the Free Exercise Clause
First Amendment cases, and specifically those focusing on the free exercise clause, have posed challenges for courts seeking to balance the states’ interests against individual fundamental rights. For example, in Cross Culture Christian Center v. Newsom, a pastor and Christian center sued California Governor Newsom, the California City of Lodi, its police chief and other government officials, alleging that stay-at-home executive orders impermissibly infringed upon their constitutional right to speak, assembly and practice religion as they choose. The United States District Court for the Eastern District of California denied their request for a temporary restraining order against the enforcement of the stay-at-home order. Relying upon the Jacobson authority, the Court held that when normalcy is lost, a “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Thus, when a state or locality exercises emergency police powers to address public health issues, the measure will be upheld “unless (1) there is no real or substantial threat to public health, or (2) the measures are ‘beyond all question’ a ‘plain, palpable invasion of rights secured by  fundamental law.’” The Court found that the California executive orders banning mass gatherings met this test because they “flow[ed] from a larger goal of substantially reducing in-person interactions.” In times of such crisis, “government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society’s most vulnerable” and such measures deserve judicial deference even when they “encroach on otherwise protected conduct” and “even when thoughtful minds could disagree about how to best balance the scales.” The stay-at-home orders applied generally to all non-essential mass gatherings and did not target religious institutions in purpose or applicability. Therefore, First Amendment protections did not relieve the plaintiffs of the obligation to comply with valid and neutral laws of general applicability.
The District Court for New Mexico also denied a church’s request for injunctive relief on the same grounds in Legacy Church v. Kunkel. Like the California district court, this court held that generally applicable, neutrally applied laws that incidentally restrict religious exercise need be only rational and legitimate exercises of governmental power. The court further noted that the “right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”
Successful First Amendment Challenges to Stay-at-Home Orders
However, other First Amendment challenges to stay-at-home orders have proved successful. Applying strict scrutiny in First Baptist Church v. Kelly, the District Court for Kansas issued a TRO preventing the enforcement of an executive stay-at-home order against various churches. Although the order restricted a number of secular activities, the court found the order expressly purported to restrict in-person religious assembly by more than ten congregants. The court determined that a law is underinclusive, and thus not generally applicable, “when it fails to prohibit secular activity that endangers the same interests to a similar or greater degree than the prohibited religious conduct.” In granting the TRO, the district court did order the plaintiff churches to comply with various social distancing and sanitation guidelines.
In On Fire Christian Center, Inc. v. Fischer, the District Court for the Western District of Kentucky issued a temporary restraining order enjoining the enforcement of an order prohibiting drive-in church services. In this case, just prior to Easter the Mayor of Louisville banned religious services even if congregants remained in their cars during the services. Meanwhile, drive-through restaurants and liquor stores remained open under the order. The court found that the order violated the Free Exercise clause because it was not neutral between religious and non-religious conduct. Because Louisville prohibited religious activity while permitting non-religious activities, the order was strictly scrutinized to determine whether it was narrowly tailored to advance a compelling governmental interest. Because the order did not prohibit a host of other “essential” activities, the order unduly burdened a fundamental right to worship. The court concluded, “But if beer is ‘essential,’ so is Easter.”
Stay-at-Home Orders and the Fourteenth Amendment
The issue of a woman’s Fourteenth Amendment right to an abortion has been front and center in this litigation surrounding stay-at-home orders. In Robinson v. Marshall, the District Court for the Middle District of Alabama granted a preliminary injunction enjoining state health officer’s order mandating the postponement of all non-emergency medical procedures during the COVID-19 outbreak. The order at issue mandated the postponement of all dental, medical or surgical procedures with two exceptions: (a) those “necessary to treat an emergency medical condition” and (b) those “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.” Abortion providers successfully sought to enjoin this order from being enforced against them. The district court found that the restrictions, for at least some women, “would operate as a prohibition of abortion, entirely nullifying their right to terminate their pregnancies, or would impose a substantial burden on their ability to access an abortion.” To the extent that the order could be interpreted to prohibit certain women from ever obtaining a pre-viability abortion and force them to carry their pregnancies to term, it very likely was unconstitutional. Thus, the plaintiffs demonstrated a substantial likelihood of success on the merits warranting a preliminary injunction. In this case, the court relied on the “backstop role for the judiciary” outlined by Jacobson: “[I]f 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, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Even though the court gave great weight to the State’s interests (preventing social contact, preserving personal protective equipment and preserving other health care resources), it still determined that the order posed a deprivation of a Fourteenth Amendment right, necessitating court intervention. Alabama has appealed, and the Eleventh Circuit denied the State’s motion to stay the preliminary injunction pending appeal.
The Southern District of Ohio in Preterm-Cleveland v. Attorney General of Ohio also granted a preliminary injunction sought by abortion providers, enjoining an order issued by the Director of Ohio Department of Health in response to the pandemic. Like the district court in Alabama, this district court determined that absent a court order, women in Ohio would face a substantial obstacle that would make accessing abortion care very difficult. Thus, it enjoined Ohio’s officers from applying and enforcing the order “in such a way as to prohibit those physicians from making case-by-case determinations that a surgical abortion is essential when the procedure is necessary because of the timing vis-à-vis pre-viability; to protect the patient’s health or life; and due to medical reasons (which implicate undue risk to the current or future health of the patient and the gestational age of the fetus, as determined by the physician, as it relates to the increased risk of the procedure as the pregnancy progresses).”
In Adams v. Boyle, the Sixth Circuit upheld a Tennessee district court’s preliminary injunction as well. However, acknowledging that under the Jacobson precedent abortion rights during a public health crisis are not identical to abortion rights during normal times, the Circuit Court modified the injunction to prevent enforcement of the executive order for certain categories of patients, including those who, in the good faith professional judgment of the provider, would lose their ability to obtain an abortion in Tennessee if their procedures were delayed past the expiration date of the stay-at-home order.
However, not all challenges by abortion providers have been successful. A divided Fifth Circuit panel in In re Abbott issued a writ of mandamus directing a district court to vacate a temporary restraining order that exempted abortions from enforcement of a Texas executive order. The appellate court concluded that the district court had “clearly abused its discretion by failing to apply (or even acknowledge) the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in” Jacobson. The circuit court also found that the district court’s declaration that the executive order was an “outright ban” on pre-viability abortions was wrong, and thus the temporary restraining order was overbroad in exempting all abortion procedures from its scope. The Eighth Circuit adopted the analysis outlined in In re Abbott, also granting a writ of mandamus to vacate a temporary restraining order. This court determined the district court’s analysis of Jacobsen was merely perfunctory and had failed to acknowledge the State’s “legitimate interest in protecting or promoting the public’s health and safety during the COVID-19 pandemic.” The Court was further persuaded by the fact that the executive order’s expiration date meant that abortion procedures were merely delayed, not banned.
Other Attempts to Secure Relief From Stay-at-Home Orders
Other businesses and individuals across the nation have also sought relief from executive orders based upon general due process and civil rights claims, which have not met with much success. For example, In Hartman v. Acton, the owner of a bridal shop sought a temporary restraining order enjoining the enforcement of a stay-at-home order directing that all “non-essential businesses and operations must cease.” The District Court for the Southern District of Ohio determined plaintiff was unlikely to prove a due process violation because a “person adversely affected by a law of general applicability has no due process right to a hearing since the law’s generality provides a safeguard that is a substitute for procedural protections.” Another individual challenged the validity of various state and local activities taken in response to COVID-19 in Arizona, which he claimed infringed on his due process right to “wander about without any specific purpose.” In McGhee v. City of Flagstaff, the District Court for Arizona relied on Jacobson in denying the request for a temporary restraining order and held that the orders had at least some “real or substantial relation” to the public health crisis and were not beyond all question a plain, palpable invasion of the plaintiff’s fundamental rights. A nonprofit advocacy group called Open Our Oregon sued the governor of Oregon and other state officials, arguing their response to the pandemic violated their civil rights. In Open Our Oregon v. Brown, the District Court for Oregon decided to “side with the chorus of other federal courts in pointing to Jacobson and rejecting similar constitutional claims brought by Plaintiffs challenging similar COVID-19 restrictions in other states.”
Although the majority of courts have generally determined that such stay-at-home orders are a valid exercise of a state’s police powers under the Supreme Court’s Jacobson precedent, not all of them have been upheld. For example, a split Supreme Court of Wisconsin declared an emergency under “unlawful, invalid, and unenforceable” in Wisconsin Legislature v. Palm. In this case, the Wisconsin Supreme Court determined that the emergency order was a “rule” that was subject to state statutory rulemaking procedures under its Administrative Procedures Act that had not been followed. In addition, the court concluded that the order promulgated by the state’s Department of Health Services exceeded its statutory authority to control and suppress communicable diseases because it applied to all persons in the state regardless of whether they were infected or suspected of being infected and it prohibited all travel rather than simply interstate travel. In other words, the court’s determination was based upon state law, and not federal authority acknowledging states’ police powers.
Conclusion: Courts Seeking to Strike Right Balance
COVID-19 has disrupted all industries and individuals on an unprecedented level and left states and local governments scrambling to implement Centers for Disease Control and Prevention guidelines and other measures to contain its spread. However, as with most governmental action, such orders and activities can and indeed do infringe on fundamental rights. While Supreme Court’s century-long precedent clearly provides that states enjoy police powers to use in times of emergency, such as pandemics, those powers are not without limitations. Courts already are grappling with striking the right balance between these competing interests, and that struggle will likely continue to play out in courts across the nations in the coming months.
Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.