US Court Rulings Constrain Public Health Powers During COVID-19 Pandemic

(Originally published by Stanford Health Policy News on May 22, 2024)

There were more than 1,000 lawsuits by individuals, businesses and religious organizations challenging community mitigation efforts and public health orders imposed during the COVID-19 pandemic.

While most of the plaintiffs lost their cases, a new study finds that 112 lawsuits were successful, predominantly by using religious liberty claims under the First Amendment or the Religious Freedom Restoration Act, or with allegations that an agency or official overstepped the legal authority that a legislature gave them.

Michelle M. Mello
Professor of Law and Health Policy Michelle Mello

“Although plaintiff victories were relatively unusual during the pandemic, those decisions could have important effects on officials’ ability to respond to emergencies—as well as on the everyday work of public health,” said SHP’s Michelle Mello, JD, PhD, a professor of health policy and of law, and one of the authors of the study published in Health Affairs. “For example, a decision that makes it harder to require COVID vaccines could also affect childhood vaccination requirements.”

Mello said the objective of the study—done with Wendy Parmet, a law professor at Northeastern University, and Stanford Law student David Jiang—was to understand how the decisions in these cases could limit public health legal powers going forward.

The researchers examined legal challenges to various public health orders that were issued to stop the spread of the disease that claimed well over 1 million lives in the United States. These orders included business and school closures, stay-at-home orders, restrictions on gatherings, moratoria on evictions, and mask and vaccination mandates. The team reviewed federal and court decisions from March 2020 through March 2023 in which the challenger prevailed on at least one claim related to a COVID-19 order.

Some Surprising Results

The researchers found the most impactful court-imposed restrictions on health orders were in two key areas: orders that restricted religious activities, and actions taken by state and federal agencies, such as eviction moratoria and vaccination and mask mandates, which seemed well within the agencies’ power as it was understood before the pandemic.

They found that the level of judicial scrutiny applied to religious freedoms was much tougher than expected based on how the courts typically examine laws that impact religious practices but don’t explicitly target religion.

“Surprisingly, given past legal precedent, courts treated neutral, generally applicable gathering restrictions as though they singled out religious activity and applied their toughest level of scrutiny,” Mello said. “It’s hard to imagine any health order that has the effect of limiting religious practice surviving in light of these precedents.”

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The researchers cite the example of Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Court found that the state had not tied the specific houses of worship that challenged its health order restricting gatherings to outbreaks of COVID-19, so ordered that limitations on church attendance be lifted. The authors were surprised by the number of emergency interventions by the Supreme Court, using its “shadow docket” to issues decisions without oral arguments and few explanations for rulings.

When it came to federal agencies, the coauthors found that that courts interpreted the laws that gave the agencies their authority much more narrowly than the language of the laws would seem to require. For example, the Supreme Court read the key statute giving the CDC its quarantine powers to limit the CDC to actions such as fumigation, inspection, and pest extermination, even though the law also says CDC can impose “other measures as in [its] judgment may be necessary” to prevent disease spread.

“This way of reading statutes really hamstrings agencies, requiring the legislature to have anticipated and spoken to the exact situation at hand,” Mello said. “Of course, with emergency situations, it’s hard to know what will be required. That’s why catchall language like ‘other measures’ gets used—but here, it was dismissed as meaningless.”

Moving Forward

While these decisions are problematic, the researchers commented, other court decisions could have positive effects on public health policy. For example, they believe it’s fair and even beneficial for courts require health officials to present evidence and clearly state the rationale for their health orders.

“Especially as an emergency wears on and more is learned about the pathogen, it’s reasonable to require that orders that burden people’s liberty have a clear, sound evidentiary basis,” Mello said, adding this shores up protection against litigation and builds public trust in their public health officials.

Why, for example, would church services involve a higher risk of spreading COVID-19 than, say, retail stories? Why is a 3-foot social distancing needed for elementary schools when 6 feet suffices for higher grades?

“Such questions often have good answers, but in some cases, officials may have made distinctions that were not well grounded in the evidence,” the authors wrote. “To weather legal challenges and avoid misuse of public health powers, officials must rely on the best available evidence and state the basis for their decisions clearly, ideally before litigation ensues.”

The coauthors recommend legislators address some of the constraints that courts have imposed by writing laws that are clearer about the legal powers of health agencies.

“There are also ways in which governors and health officials can help litigation-proof their policies—for example, by clearly stating the evidentiary basis on which they rest, and why less burdensome policies wouldn’t work as well,” Mello said.