When Balancing Freedoms and Public Health, Courts Often Choose Health

JULIE LEOPO, Voice of OC

Federal Courthouse in Santa Ana on May 18, 2020.

When it comes to balancing individual freedoms with a state’s power to protect public health, freedoms have long taken a backseat in court rulings.

That precedent – cited often in recent court decisions – goes back over a century, to a 1905 case where the U.S. Supreme Court upheld a state’s power to mandate vaccinations during an epidemic.

“Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law,” the court ruled in Jacobson v. Massachusetts.

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

In its 7-2 decision, the court upheld the constitutionality of state laws requiring vaccinations for infectious diseases.

The 1905 ruling was cited recently in federal and state court decisions on the state’s power to close or limit Orange County beach access in the ongoing coronavirus pandemic. The judges, pointing largely to the Jacobson decision, found Gov. Gavin Newsom to be within his powers to prevent the disease’s spread.

“The law for this county was set locally in the course of the last week by two courts right here in Orange County,” said OC Supervisor Don Wagner, who opposed the governor’s beach closures, at the county supervisors’ meeting last week.

“In both cases, those courts went with the governor and against the push to open quickly,” Wagner said. “If it were my decision to make, I’d say we know enough [about the coronavirus disease] and we should push back against the governor and his orders. But that’s not where the courts are.”

“Courts give great deference to the government in taking actions to stop the spread of a communicable disease,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law and a former Voice of OC board member.

“Jacobson v. Massachusetts, 1905, held that a government’s action is constitutional so long as it has a reasonable relationship to protecting public health. There have been a lot of legal challenges, but most have failed and the restrictions have been upheld,” added Chemerinsky, who previously was dean of the UC Irvine School of Law.

Last month, the conservative 5th U.S. Circuit Court of Appeals called the 1905 decision a “settled rule” when it upheld Texas’ ban on doctors performing abortions during the coronavirus pandemic.

“Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency,” the appeals court wrote.

“That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”

In the U.S., states have the primary power to enact laws protecting public health, but that power is not absolute, said Mairo Mainero, a Chapman University law professor.

A common theme of court rulings is that states – not the federal government – “have the police power—the power to regulate in order to protect public health and safety,” said Mainero, who served as chief of staff to state Sen. John Moorlach (R-Costa Mesa) when Moorlach was a county supervisor.

A second thread, he said, is “There must be a logical link between the measures undertaken pursuant to the police power and the government goals (public health, etc.).”

In the 1905 ruling, “there was a strong link between vaccination and defeating smallpox,” Mainero said in an email.

During the current pandemic, he said, “states can likely show a link between the use of various social distancing measures (including stay at home measures, wearing masks, etc.) and reduction of the spread of the coronavirus.”

“While the mortality rate of COVID 19 is not nearly as high as smallpox (which was, I believe, around 30%), the link between the specific measures enacted and reduction of the spread still appears to be sufficient to uphold most reasonable measures.”

But there are limits, he said.

“Where a government could get into trouble is by allowing some gatherings, etc. and not others that are highly similar, or by not requiring social distancing in some activities but requiring it in others that are similar,” Mainero wrote.

“For example, the government probably could not require masks in churches but not at football stadiums—that would be arbitrary and not logical.”

In at least one case, a racially-targeted health order was tossed out by a court.

A 1900 federal court decision struck down a San Francisco quarantine that restricted Chinese-Americans’ movements, finding it was racially motivated and would actually worsen the spread of disease.

“If we are to suppose that this bubonic plague has existed in San Francisco since the 6th day of March, and that there has been danger of its spreading over the city, the most dangerous thing that could have been done was to quarantine the whole city, as to the Chinese, as was substantially done in the first instance,” the court ruled in that case, Jew Ho v. Williamson.

In the most recent Orange County beach ruling, the judge said health orders are valid unless they fail to protect public health or severely violate fundamental rights.

“Emergency public health orders should be upheld unless they lack any ‘real or substantial relation’ to public health or are ‘beyond all question a plain, palpable invasion of rights secured by the fundamental law,’ ” Judge Nathan R. Scott of OC Superior Court wrote in his decision.

Quoting from the 1905 decision, he added: “The United States Supreme Court has long recognized that the Constitution ‘does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from constraint.’ ”

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.