Parmet
Rediscovering Jacobson in the Era of COVID-19
Wendy E. Parmet
100 B.U. L. Rev. Online 117 (2020)
On May 29, 2020, as states across the country continued to ease the social distancing measures that had been put in place to stem the spread of COVID-19, the Supreme Court in South Bay United Pentecostal Church v. Newsom,[1] by a 5-4 vote, denied an emergency request to enjoin California Governor Gavin Newsom’s order limiting the number of worshippers at in-person religious services.[2] Although the Court issued no opinion, Chief Justice Roberts, in a concurring opinion, quoted the Supreme Court’s 1905 decision in Jacobson v. Massachusetts[3]: “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”[4] In dissent, Justice Kavanaugh, who was joined by Justices Thomas and Gorsuch, ignored Jacobson. Instead, he argued that the Governor’s emergency order violated the First Amendment.[5]
The justices’ disparate treatment of Jacobson echoed its reception by the lower courts. In In re Abbott,[6] one of the first cases reviewing a COVID-19-related order, the U.S. Court of Appeals for the Fifth Circuit relied on Jacobson to overturn an injunction of a Texas law banning abortions during the pandemic.[7] To the Fifth Circuit, Jacobson required courts to limit their review of constitutional rights during a public health emergency.[8] A little more than two weeks later, in another abortion case, the Eleventh Circuit disagreed, concluding that Jacobson “was not an absolute blank check for the exercise of governmental power.”[9]
As courts continue to hear challenges to COVID-19-related orders, citations to Jacobson are bound to proliferate, and uncertainty as to its meaning is likely to continue. Thus a re-examination of the 115-year-old decision seems timely. This Essay offers that re-examination, situating Justice Harlan’s nuanced and Delphic opinion in its jurisprudential and public health context.[10]
This Essay proceeds in three parts. Part One discusses Jacobson’s public health context. Part Two examines the opinion in light of the police power jurisprudence of its age. Part Three looks briefly at Jacobson’s legacy, examining how courts have read the case in the years since 1905, including during the COVID-19 pandemic. The paper ends by explaining what Jacobson does and does not have say about today’s challenges. […] Read the full article.
[1] 140 S. Ct. 1613 (2020) (mem.).
[4] S. Bay United Pentecostal Church, 140 S. Ct. at 1613 (Roberts, CJ., concurring) (quoting Jacobson, 197 U.S. at 38).
[5] Id. at 1614-15 (Kavanaugh, J., dissenting).
[6] 954 F.3d 772 (5th Cir. 2020).
[7] Id. at 778-79. Five days latter, on April 13, 2020, the Fifth Circuit allowed a narrower temporary restraining order applying to medication abortions to remain in effect. See In re Abbott, No. 20-50296, 2020 WL 1866010, at *2-3 (5th Cir. Apr. 13, 2020). Later in April, the Fifth Circuit struck the district court’s revised temporary restraining order. 956 F.3d 696 (5th Cir. 2020).
[8] In re Abbott, 954 F.3d at 783-85; see also In re Abbott, 956 F.3d at 703; Lindsay F. Wiley & Steve Vladeck, COVID-19 Reinforces the Argument for “Regular” Judicial Review—Not Suspension of Civil Liberties—In Times of Crisis, Harv. L. Rev. Blog (Apr. 9, 2020), https://blog.harvardlawreview.org/covid-19-reinforces-the-argument-for-regular-judicial-review-not-suspension-of-civil-liberties-in-times-of-crisis/ [https://perma.cc/B83P-6PNJ]. For a further discussion of courts that have followed In re Abbott, see infra text accompanying notes 105-12.
[9] Robinson v. Attorney General, 957 F.3d 1171, 1179 (11th Cir. 2020).
[10] This Essay does not attempt to review or assess the COVID-19 cases that discuss Jacobson. I intend to cover that ground in a forthcoming paper for the San Diego Law Review.