Wendy E. Parmet’s important new book, Constitutional Contagion: COVID, the Courts, and Public Health, revolves around the question of how much authority governments possess in the domain of public health—and what the appropriate limitations on that authority might be. Parmet is a leading scholar of public health law, and Constitutional Contagion offers a detailed discussion of the politically contested development of public health jurisprudence in the United States from the colonial period through Reconstruction, the pivotal 1905 Jacobson v. Massachusetts case, and through the volatile past few years. It contributes not only to the literatures on public health law and on American political development and governing institutions but also to a growing, COVID-informed literature on politics and public health. The book will therefore be of interest to any reader seeking to better understand the massive shifts in how courts have dealt with public health interventions in the years since the COVID-19 pandemic began.
Parmet’s central focus is the challenge that the pandemic posed to the US public health infrastructure and to the legal frameworks that have long underpinned it. Among the myriad court cases that she discusses, the most important is the 2020 Supreme Court case, Roman Catholic Archdiocese of Brooklyn v. Cuomo. In Archdiocese, the Supreme Court found that an executive order issued by New York governor Andrew Cuomo limiting the number of people permitted in religious services in areas where COVID-19 was rapidly spreading violated the First Amendment rights of worshippers.
The Court’s decision, Parmet argues, represents the culmination of a long trend in US public health law away from a deference to conceptions of the public good and toward a jurisprudence in which individual liberty claims often trump arguments about protecting collective health, safety, and well-being. In the post-Roman Catholic Archdiocese world, Parmet suggests, public health interventions have been reconceptualized as potential threats to protected individual liberties.
This is a bold argument. Parmet lays the groundwork for it through a perceptive discussion of the Court’s pre-pandemic public health jurisprudence. US courts, she emphasizes, once favored the Latin adage, “salus populi suprema lex”: the health of the people is the supreme law. Under this legal regime, courts tended to defer to public health authorities. If interventions were reasonable, safe, proportionate, and applied neutrally, courts typically upheld them.
Parmet’s discussion highlights foundational cases to this approach, such as Gibbons v. Ogden (1824) and Jacobson v. Massachusetts (1905). In Gibbons, the Supreme Court explained that regulating public health was a police power that was left to the states under the Tenth Amendment. Before adoption of the Fourteenth Amendment and the process of selective incorporation—through which the Supreme Court gradually applied the protections contained in the Bill of Rights to state and local governments—the national Constitution offered few protections to those who viewed state and local public health interventions as an infringement on their rights. States and localities, under this regime, possessed broad powers to impose regulations that they believed would improve the overall health of their citizens.
The extent and nature of state and local police powers in the realm of public health were made clear in Jacobson, decided in 1905. The case dealt with an objection to compulsory vaccination that emphasized individual liberty. The Court found that the objector (Jacobson) did not possess the liberty to put others in harm’s way by rejecting public health regulations. Expressing broad deference to state-level public health authorities, the Court also outlined limitations intended to ensure that health officials did not engage in actions that were unnecessary, harmful, or unreasonable. As in Gibbons, the Court noted that it was states (rather than the federal government) that held most authority in the realm of public health.
The decision in Roman Catholic Archdiocese, Parmet argues, represents a sharp and pivotal turn away from this earlier jurisprudence. As the book makes clear, however, this was not a turn without precedent. Post-New Deal interpretations of the interstate commerce clause have endorsed direct federal action in arenas, such as environmental protection and occupational health and safety, that might be described as “public health.” The selective incorporation of the Bill of Rights under the Fourteenth Amendment, meanwhile, led to a revolution in conceptions of individual rights. In the hands of liberal justices, this resulted in decisions such as Griswold v. Connecticut (1965) and Roe v. Wade (1973). In the hands of conservative justices, this meant decisions such as McDonald v. Chicago (2010), which found that the individual right to bear arms should be protected against state and local governments.
Although somewhat startling in its limitation of states’ public health authority, the Court’s decision in Archdiocese rests on a straightforward claim that religious institutions were being singled out and treated differently than other institutions. Governor Cuomo’s executive order allowed “essential” businesses such as grocery stores to admit far larger numbers of people than houses of worship. Attendance at religious services in high-COVID-transmission areas, however, was capped at 10. The decision to outline specific rules for religious gatherings and the governor’s public statements about COVID transmission in the Orthodox Jewish community almost invited the Court to apply a strict scrutiny standard in considering the executive order. Striking down the governor’s executive order, the Court suggested that Cuomo might have adopted an alternative approach while staying within the bounds of the First Amendment. Instead of capping religious worship at 10 people, the Court advised tethering the maximum number of attendees to the size of the religious place of worship in its Per Curium opinion. Rather than being seen as a repudiation of the public good, then, this decision might be read as a reasonable attempt to balance the state’s legitimate interest in protecting public health with the legitimate interest of individuals and religious institutions in freely exercising their right to worship.
The Court’s majority decision, however, largely ignores a key fact: other public gatherings, such as concerts, were fully banned in the high-transmission areas where Cuomo limited attendance at religious services. However clumsily executed, the 10-person cap was an attempt to create a carve out that would allow for the freedom to worship under circumstances where public gatherings might plausibly have led to additional community spread of a deadly virus.
What should we make of this? Parmet notes that, under different circumstances, Archdiocese might have been viewed as a fairly narrow ruling. Her analysis suggests, however, that the case represents a turn away from deference to public health authorities and a rejection of long-standing conceptions of the public good (and the role of government in promoting it). In subsequent cases dealing with social distancing and religious liberty claims, courts have been more skeptical of public health claims. Meanwhile, in an array of cases—including those dealing with public health interventions such as mandatory vaccination—Parmet identifies a clear movement away from pre-pandemic norms and jurisprudence. More broadly, she contends, this shift in the perspective of the courts is tied to shifts in political ideologies and conceptions of the public good.
Ultimately, Constitutional Contagion offers an impressively detailed analysis of the development of public health law in the United States. It makes a compelling case that the balance in public health jurisprudence has shifted away from long-standing commitments to the public good. Taken as a whole, Parmet argues, the jurisprudence embodied in cases such as Archdiocese has emphasized individuals’ “negative rights” over the positive right to be healthy. She therefore suggests that the US judiciary has recently embraced an approach to constitutional law that is detrimental to the health of the American public. To restore some semblance of balance, the Supreme Court should take the implications of individual decisions for our collective well-being more seriously.
But balancing individual liberty and public health is a genuine challenge. Although some public health work is at least superficially impersonal—treating water to kill bacteria, for instance—public health policies are some of the most visceral and intimate interventions that democratic governments can implement. It is not surprising that government requirements that children be vaccinated before attending school or mandates for contact tracing and notification for sexually transmitted diseases are politically contested. Although there are a wide range of alternative approaches that we might adopt in trying to balance competing claims between the public good and individual liberty, a more thoughtful public conversation about these issues is undeniably in order. As Parmet’s work makes clear, there is a great deal of danger in pretending that our individual actions and decisions do not affect the well-being of the community as a whole.
