The 1905 case that governs the law

greenberger-michael-col-sigIn mid-March this year, shortly before St. Patrick’s Day, Gov. Larry Hogan ordered that the state’s restaurants be closed to stop COVID-19 from spreading. There were widespread complaints by owners and threats to disobey the governor’s orders. I received a call from a local reporter, who asked how it could be that Hogan could close these businesses by fiat, depriving them of their rightful profits. Lawsuits were threatened. The reporter claimed that this seemed a clear denial of the owner’s constitutional due process rights.

I told the reporter to read the 1905 U.S. Supreme Court case of Jacobson v. Massachusetts. Indeed, the Maryland Attorney General had already raised Jacobson in support of the Governor’s COVID-19 responses.  In the end, the restaurants closed, did not defy the governor and brought no suits.  It is very rare that a 115-year-old case still holds such overwhelming currency with over 1,500 references in law review articles and half that number in judicial opinions.

Jacobson concerned a regulation from the Cambridge Board of Health that every resident be vaccinated against smallpox or pay a fine. Smallpox at the time was highly contagious and could be spread by those who were asymptomatic. Thirty percent of those who contracted it died. And, even many of those who survived were left with unsightly body and facial scars.

The smallpox vaccine prevented infection. (Fortunately, by 1977, after a successful and aggressive worldwide vaccination campaign led by the late Dr. Donald Henderson of Johns Hopkins University, smallpox was declared by the World Health Organization to be eradicated.)

In Jacobson, Mr. Jacobson refused to be vaccinated. He claimed that “his liberty [would be] invaded,” and this state action was “unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”

When the case reached the U.S. Supreme Court, Justice John Marshall Harlan, writing for a 7-2 Court majority, ruled that, under the Constitution, states have broad “police powers”, i.e., the primary governmental authority to enact “reasonable regulations” to “protect the public health and public safety” all of its citizens.

Justice Harlan said 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.”  (Emphasis added.)

Harlan further said that each state’s rightful and constitutionally authorized concern for the “common good” in fighting a pandemic, could not exist if each citizen was “a law unto himself,” because “disorder and anarchy” would prevail.

To be sure, this broad authority constitutionally afforded the states under Jacobson is not without limitation. Individuals can pursue legal recourse if the action by the state, “has no real or substantial relation,” to public health “or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

The Jacobson rule, nevertheless, is highly deferential to the states’ authority in a public health crisis and, over these many years, the case has allowed states to combat pandemics by denying individual claims of individual liberty if they are outweighed by the safety and welfare of a state’s citizens as a whole.

Because Covid-19, unlike the spread of other recent viruses, has affected every state, D.C., and the U.S. territories at virtually the same time, Jacobson-like issues have now arisen more widely and more broadly in this pandemic than in any other.  As a result, Jacobson’s import has never been so repeatedly tested in courts all over the nation. With some limited exceptions within a few state courts,  Jacobson has held up well.

It is worth noting here that in the most important Maryland COVID-19 case so concerning Jacobson, Maryland U.S. District Court Judge Catherine Blake denied several plaintiffs’ request for preliminary injunction against Hogan’s coronavirus-related executive orders, because “under the Jacobson framework, they have not shown that the measures [challenged] have no real or substantial relation to protecting public health, nor have they shown that the measures are, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

All of this nationwide COVID-19 related litigation suggests that, in one way or another, Jacobson’s ruling may soon make it back to the U.S. Supreme Court, probably on an emergency basis before the pandemic ends. My bet is that at least a majority of the court’s present justices will follow this 115-year-old precedent and sustain the rights of all citizens against any contrary Constitutional rights asserted by individuals.

The continued vitality of Jacobson is well worth watching.

Michael Greenberger is a professor at the University of Maryland Francis King Carey School of Law and is founder and director of the Center for Health and Homeland Security.