Covid-19 has spurred an outbreak of a different kind: litigation. To combat the pandemic, officials imposed extensive community-level mitigation measures using their broad but largely untested emergency powers. In response, more than 1000 suits challenged orders shuttering businesses, banning indoor worship services, restricting travel, and mandating mask wearing. 1 As with other social aspects of the pandemic, this litigation will have lasting effects. Courts have historically been deferential to health orders, especially during disease outbreaks. Most famously, in 1905 in Jacobson v. Massachusetts , the Supreme Court upheld a vaccination mandate and emphasized that public health protection was the primary responsibility of elected officials and the experts to whom they delegated power. Judicial review, the Court found, is limited to determining whether officials’ decisions have “no real or substantial relation to” their goals, are “a plain, palpable invasion of rights,” or are “arbitrary and oppressive in particular cases.” Since then, courts have attempted to reconcile Jacobson with evolving conceptions of individual rights. Initially, courts rejected most challenges to Covid-related emergency orders. For example, in In re Abbott , the Fifth Circuit Court of Appeals vacated a restraining order against a Texas directive halting most abortions during the emergency. The […]

By : Mark McDowell Tags: