(Originally published by The New England Journal of Medicine on February 26, 2022)
The Covid pandemic has focused attention on the complex relationship between individual rights and public health protection. This tension has long occupied U.S. courts, but today some long-settled understandings in public health law are being contested and disrupted.
Exercises of public health powers in the United States must stay within a constitutionally established framework. Historically, public health law has largely been state law. In 1824, in Gibbon v. Ogden, the Supreme Court recognized that states had plenary power – or “police power” – that includes the power to enact “health laws of every description.” Though broad, the police power has limits, which courts have applied variously over time.
(Continue reading the opinion essay on The New England Journal of Medicine’s page here.)