All CHP/PCOR News Commentary September 1, 2021

The COVID-19 Pandemic Spurs Outbreak of Another Kind: Litigation

In this New England Journal of Medicine perspective, SHP's Michelle Mello writes that more than 1,000 lawsuits have challenged public health orders shuttering business, banning indoor worship, restricting travel and mandating masks. She argues that the outcome of these cases will have a lasting impact on our public health.
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"COVID-19 has spurred an outbreak of a different kind: litigation. To combat the pandemic, officials imposed extensive community-level mitigation measures using their broad but largely untested emergency powers," reads the perspective. "In response, more than 1000 suits challenged orders shuttering businesses, banning indoor worship services, restricting travel, and mandating mask wearing. As with other social aspects of the pandemic, this litigation will have lasting effects.

"Courts have historically been deferential to health orders, especially during disease outbreaks. Most famously, in 1905 in Jacobson v. Massachusetts, the Supreme Court upheld a vaccination mandate and emphasized that public health protection was the primary responsibility of elected officials and the experts to whom they delegated power. Judicial review, the Court found, is limited to determining whether officials’ decisions have “no real or substantial relation to” their goals, are “a plain, palpable invasion of rights,” or are “arbitrary and oppressive in particular cases.” Since then, courts have attempted to reconcile Jacobson with evolving conceptions of individual rights."

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Michelle Mello

Professor of Medicine, Professor of Law
Researchers issues at the intersection of law, ethics and health policy.
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