Quarantine, Public Health and and Jacobson v Virginia

States have broad police powers that grant them authority to use that power for the protection of its citizens. The lock downs can, in fact, be mandatory and have the force of law and could subject violators to fines or jail time. The text of the orders makes that clear even though the governors themselves may talk as if they were just recommendations.

So what civil rights are violated by these orders.? What can the states actually do? (Aside from what the virus can do, i.e. kill you.)

In 1902, during a smallpox outbreak, the Cambridge, Mass, Board of Health passed a resolution that required all citizens who had not been vaccinated during the previous 5 years to undergo the procedure or pay a fine of $5. The board did so in accordance with a state law that empowered localities to enforce general compulsory vaccination when deemed necessary for the public safety. A local pastor (of course) Henning Jacobson, who had immigrated from Sweden, where he had been subject to mandatory vaccinations for smallpox as a child (a program that had eliminated smallpox from Sweden), argued in court that the vaccination had caused him harm and therefore he should not be subject to it nor should anyone be required to be vaccinated. He said that it violated his liberties under the Constitution. Jacobson’s refusal both to be vaccinated and to pay the fine instigated a series of legal actions in the Massachusetts court system. After failing to convince the state’s Supreme Judicial Court that the law was oppressive, Jacobson appealed to the US Supreme Court.

On February 20, 1905, the Supreme Court handed down a 7–2 decision in favor of Massachusetts. Writing for the majority, Justice John Marshall Harlan declared that the authority to compel vaccination fell within the “police powers” of state and local governments to guard the community’s health, welfare, safety, and morals. While the high court had never attempted to define the limits of police powers, Harlan contended it had recognized the authority of states to enact “health laws of every description” to guard the common good in whatever way the citizens, through their elected representatives, thought appropriate. States also could legitimately impose quarantines or penalties (such as fines) on those who refused to cooperate with such laws.

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

“[T]he 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. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.” (Jacobson v Massachusetts, 197 US 11 (1905))

The compulsory vaccination law, Harlan said, was consistent with what the Massachusetts constitution had laid out as “a fundamental principle of the social compact that the whole people covenants with each citizen and each citizen with the whole people.

Immunization during the course of the twentieth century gradually reduced the need for drastic public health measures. (In 1922, the court had ruled in Zucht v King that schools could refuse to admit students who had not been vaccinated.) Massive outbreaks of contagious diseases became rare and the trend in public health was to use information and education to practice good public health rather than coercion. Panic can often be a good motivator as was evidenced during the polio epidemic and when the vaccine was made available generally little state coercion was needed to assure compliance. Parents were thrilled to be able to remove fear from their lives.

By 1981, all 50 states had made vaccination against measles and most other vaccine-preventable illnesses mandatory for school entry. Support for these laws was buttressed by empirical evidence that showed a strong correlation between the presence of laws and the lower rates of measles. But even then, the use of coercion was framed as hortatory. A CDC official who supported the laws said, “[S]ome additional stimulus is often needed to provoke action on the part of a basically interested person who has many other concerns competing for attention.” In this view, the laws served as a “means of bringing to individuals’ attention the continuing publicly perceived need for immunization. (Colgrove)

Increased awareness of the expense to society through ignorance or simple feckless behavior (smoking, motorcycle helmets, drug and alcohol abuse) has begin to swing the pendulum in a more proscriptive direction.

However, states and municipalities can often go to extremes. When the mayor of Louisville said that people could not congregate for religious services even sitting in your car as a kind of drive through services while at the same time permitting other drive through liquor sales. ALL social gathering could be prohibited (with obvious exceptions for getting food, etc.) but not regulations aimed at a specific group. That would be a violation of the free exercise clause. The Jacobson decision was cited in the district court's opinion overturning the mayor's regulation arguing in excessively purple prose that some rights can be protected from the state's police power. Ironically, the Jacobson decision was also cited by the Fifth Circuit in arguing that other fundamental rights could be suppressed (e.g. abortion) during times of health emergencies.

When the president tweets about liberating states from governor's orders and that he has total power, the next day "authorizing states to do what they want," he simply reveals his complete ignorance of basic federalism. If the states close, they also can open up -- or not under their own police power and the 10th amendment. The president's substantial power comes from his megaphone and bully pulpit. He could be promoting the importance of public health recommendations every day. That would made state coercion less necessary. Instead contradictions abound. When AG Barr suggests that stay-at-home orders may be like house-arrest and his office would file in support of those suing state governments, he is simply muddying the waters and subverting the authority of the governors not to mention subverting the public health experts.

Yet I find myself having a severe case of whiplash having lived through the Civil Rights movement when governors in the south would stand on the steps of their Capitol buildings declaring their complete opposition to federal authority. We opposed "states-rights" then, but also for good reason. They were using their "police power" to deny citizens their fundamental civil rights. Unlike in Jacobson where the state was using its power to protect the general welfare, these southern governors were doing just the opposite.

References:

Mariner, W. K., Annas, G. J., & Glantz, L. H. (2005). Jacobson V Massachusetts: It’s not your great-great-Grandfather’s public health law. American Journal of Public Health, 95(4), 581-590. https://doi.org/10.2105/ajph.2004.055160
[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/}]
Note that this article was written in 2005 and suggests limiting the state's power to quarantine. I wonder if the views of the authors might have changed considerably in light of the current virus?

Gostin, L. O. (2005). Jacobson V Massachusetts at 100 years: Police power and civil liberties in tension. American Journal of Public Health, 95(4), 576-581. https://doi.org/10.2105/ajph.2004.055152

Colgrove, J., & Bayer, R. (2005). Manifold restraints: Liberty, public health, and the legacy ofJacobson V Massachusetts. American Journal of Public Health, 95(4), 571-576. https://doi.org/10.2105/ajph.2004.055145