On Sunday, Israel opened 120 rapid coronavirus antigen testing complexes as part of the Health Ministry’s reinstated Green Pass program. But thus far it has not enforced indoor masking on a widespread basis.
A year and a half in, the coronavirus pandemic is still especially troublesome because of its novelty. How will American courts, which have a long and proud tradition of protecting individual rights of privacy and choice, keep dealing with mandatory masking, calls for quarantines and large-scale lockdowns?
In fact, over the years judges have had to reconcile First Amendment liberties with the necessity of government actions aimed at protecting the public against a number of communicable diseases, such as cholera, diphtheria, tuberculosis, smallpox, yellow fever and influenza.
Well over a century ago, in the old landmark case Jacobson v. Massachusetts (1905), the US Supreme Court rejected a challenge to mandatory smallpox vaccination, holding that the libertarian principle allowing individuals to always exercise their own judgment is incompatible with the government’s power to impose health measures upon the entire population. It thus upheld the authority of states to enforce compulsory vaccination laws.
Last year the Department of Justice determined that social-distancing rules cannot be enforced in churches because they violate the Constitution’s guarantee of religious freedom.
Now the Centers for Disease Control and Prevention have issued a series of somewhat confusing orders, first requiring people to wear masks while traveling on public transportation, and later just recommending that they do so.
But, said the CDC, “Conveyance operators must continue to require all people onboard to wear masks when boarding and disembarking, and for the duration of travel.” And, “Operators of transportation hubs must require all persons to wear a mask [regardless of their vaccination status] when entering or while located in the indoor premises.”
In other words, go figure.
Even constitutional scholars find themselves in a quandary. “The good news,” says Glenn Cohen, director of the Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School, “is that there are a number of cases on public health needs, the Constitution and the so-called state ‘police power.’ The bad news is they are quite old, mostly from the turn of the 20th century, and a huge amount of constitutional law has changed since then. As a result there is a lot that is vague and uncertain in this area.”
Federal authority to order isolation and quarantine is derived from the Constitution’s Commerce Clause. Currently it is the secretary of health and human services who is designated to take measures for preventing the entry and spread of communicable diseases from foreign countries.
Historically, though, the federal government has rarely gotten involved. The last time it played a major role was during the so-called “Spanish flu” pandemic in 1918–1919. Today it is the states themselves that generally enforce quarantines and isolation orders.
From the earliest colonial days, American citizens were accustomed to being deprived of various freedoms, especially those associated with religious beliefs and practices. Even the Bill of Rights did not eliminate such restrictions. Although many of these cases ended in split decisions (often 5-4), the limitations on liberty were deemed necessary to ensure order or preserve national security.
Only after two centuries of hindsight did we come to doubt this end-justifies-the-means approach, when in a 1944 case Justice William Brennan observed that the government’s regulation of basic freedoms does not always preserve national security. “After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary,” he wrote in a dissenting opinion in Korematsu v. United States, which upheld the government’s policy to prevent Japanese-Americans from entering the West Coast during World War II. “But it has proven unable to prevent itself from repeating the error when the next crisis came along.”
Given today’s realities, though, when entire populations could be threatened by mass infection, the extent to which we can afford to indulge once-cherished civil liberties is in serious doubt.
There’s an old nostrum that “hard cases make bad law.” Neither federal nor state governments have clear authority to restrict travel. Our system of responding to public-health emergencies has long been fragmented. Both federal and state lower courts have been divided on whether to implement social distancing or quarantine measures, as have policies of the roughly 2,800 local public health departments. There’s virtually no standardization.
As each state looks to its own interests and resources, the variations could serve to make an epidemic worse.
Ethicists seem to agree. They’re concerned about the impact social distancing might have on certain vulnerable groups, like low-wage workers. “There’s a different set of ethical dominoes,” said Nancy Kass, deputy director for public health at Johns Hopkins’ Berman Institute of Bioethics, “[forcing us] to make sure there’s adequate income replacement for workers unable to earn a living, that grocery stores stay open and accessible, and that people have access to the creature comforts that make social distancing bearable.”
While to some civil libertarians, over two centuries of traditional American ideals appear to be genuinely in jeopardy – and that we are in the midst of a perilous quest to preserve them – to others the worldwide pandemic has changed forever the way we consider such issues.
“The Constitution is not a suicide pact,” Supreme Court Justice Robert Jackson wrote over 70 years ago in Terminello v. Chicago (1949). A nation’s strongest instinct, after all, is survival – even at the cost of individual rights.
The writer is a professor of law at the University of Baltimore School of Law, where he specializes in civil liberties and international human rights.