Public Health versus Personal Liberty: Politicization’s Role in the Constitutionality of Public Health Mandates

As the COVID-19 pandemic continues its assault around the world, American state and federal legislators have taken extraordinary measures in an attempt to preserve public health. Yet, from stay-at-home orders to mask mandates, many Americans have questioned the constitutionality of emergent public health measures. Using the 10th Amendment of the U.S. Constitution, Supreme Court decisions extending over 200 years have authorized state governments to employ wide-ranging public health emergency actions to control infectious disease spread.[1] However, recent court cases regarding the constitutionality of public health mandates, such as Roman Catholic Diocese of Brooklyn v. Cuomo, may upend centuries of Supreme Court precedent while also signaling a legal—and arguably political—shift in the balance between public health and personal liberty.

In November 2020, the Supreme Court ruled in a 5-4 decision to temporarily prohibit limits on in-person religious worship imposed by New York Governor Andrew Cuomo.[2] Mere months prior, on May 29, the Supreme Court declined to block California’s limit on attendance at places of worship by a 5-4 vote in South Bay United Pentecostal Church v. Newsom.[3] Although the contrasting decisions between these nearly identical issues were attributed to the addition of Justice Amy Coney Barrett and the subsequent ideological transition of the Court, Roman Catholic Diocese of Brooklyn v. Cuomo more broadly underscores the recent politicization of public health and its ramifications on courts’ use of science in decision-making. If continued, this partisan trend will upend both public health safety and personal liberty during the current pandemic and beyond.

A clear partisan divide has emerged in the evaluation and contestation of public health mandates and personal liberties. In May 2020, Republican lawmakers in Wisconsin challenged a statewide stay-at-home order, arguing that the restrictions exceeded the authority afforded to state public health officials.[4] The Wisconsin Supreme Court ruled in favor of the lawmakers, and the decision was lambasted by Democratic representatives nationwide.[5] A month later, the Illinois Republican and Democratic parties held a bitter dispute on the Republican Party’s request to the Supreme Court for an emergency injunction against statewide orders restricting gathering to less than 50 people.[6] Before the Supreme Court ultimately rejected the appeal, the Illinois governor’s office denounced state Republican lawmakers and stated the lawsuit was merely an attempt to “score political points.”[7]

 Courts have not avoided the profound impacts of public health politicization. Roman Catholic Diocese of Brooklyn v. Cuomo was predictably decided along ideological lines but unpredictably possessed six differing opinions.[8] In his concurring opinion, Justice Neil Gorsuch argued the dissenting Justices were “cutting the Constitution loose during a pandemic” in upholding emergency restrictions on religious gatherings and in suggesting that it was unnecessary to rule on the injunction’s constitutionality, as the restrictions were no longer in effect at the time of the trial.[9] Chief Justice John Roberts firmly rebuked Justice Gorsuch’s characterization in his dissenting opinion, directly repudiating Justice Gorsuch’s quote: “To be clear, I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘shelter[ing] in place when the Constitution is under attack.”[10] These disputes are larger reflections of increased political and ideological tensions regarding the balance between public health and personal liberty during the pandemic. Such tensions pose serious detriments to courts’ ability to fairly and effectively determine which public health restrictions are valid and which are constitutionally and epidemiologically questionable. Amid ideological bickering, the nuance of public health and personal liberty issues are obscured.

While public health should not automatically override personal liberties, lawmakers increasingly cast aside scientific expertise for public health cases, thus undermining evidence-based law. On March 2, Republican Governor of Texas, Greg Abbott, ended a state-wide mask mandate in an appeal to his conservative constituents and colleagues.[11] Governor Abbott claimed the policy would benefit businesses and boost the state’s economy, despite data from the U.S. Centers for Disease Control and Prevention which highlights that increased masking can “prevent the need for lockdowns and reduce associated losses of up to $1 trillion.”[12] In an era of intensive politicization on matters of science and public health, lawmakers are increasingly inclined to rely on anecdotal evidence and common wisdom unsupported by scientific research.[13]

In addition to affecting legislators, the pressure to conform to partisan expectations is disastrously shaping courts’ use of scientific guidance when adjudicating public health cases. In Roman Catholic Diocese of Brooklyn v. Cuomo, the majority argued that places of religious worship should possess relaxed restriction and be classified as “essential” alongside some secular businesses, such as laundromats, banks, hardware shops, and grocery stores.[14] However, the majority failed to acknowledge existing epidemiological data demonstrating that activities performed in a church, including speaking and singing in close proximity indoors, pose different transmissibility risks compared to other essential activities, such as shopping for groceries.[15] The disregard of clear epidemiological data is both counterintuitive and dangerous. Overlooking scientific evidence is detrimental to public health, which in turn hurts the same individuals whose personal liberties the courts are trying to accommodate.

Courts inarguably play an imperative role in ensuring public mandates are not employed as justification for discriminating against vulnerable communities or suppressing protected liberties, particularly in emergent situations. However, scientific guidance is an essential instrument for legislative action, and as critical players in the lawmaking process, courts cannot assume public health expertise. “Real liberty” cannot exist in the absence of reasonable restraints to protect the public’s health, and the courts cannot allow the adjudication of public health measures to devolve into partisan brawls.

[1] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[2] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020)

[3] South Bay United Pentecostal Church v. Newsom, 592 U.S. ____ (2021)

[4] Steve Gorman Bernstein Sharon, “Wisconsin Supreme Court Invalidates State’s COVID-19 Stay-at-Home Order,” Reuters, May 14, 2020, https://www.reuters.com/article/us-health-coronavirus-usa-wisconsin-idUSKBN22Q04H.

[5] Ibid.

[6] J. Edward Moreno, “Kavanaugh Rejects Illinois GOP Request to Block Rule Banning Large Gatherings,” TheHill, July 4, 2020, https://thehill.com/regulation/court-battles/505884-kavanaugh-rejects-illinois-gop-request-to-block-rule-banning-large.

[7] Porter Wells, “Illinois GOP Sue Over State’s Ten-Person Gathering Cap (1),” Bloomberg Law, June 16, 2020, https://news.bloomberglaw.com/coronavirus/illinois-republicans-sue-over-states-ten-person-gathering-cap.

[8] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).

[9] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020), (Gorsuch, Neil, concurring).

[10] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020), (Roberts, John, dissenting).

[11] Isaac Stanley-Becker, “GOP Governors Scorn Pandemic Restrictions as They Compete for Primacy in a Pro-Trump Party,” Washington Post, accessed March 7, 2021, https://www.washingtonpost.com/politics/texas-mask-mandate-abbott/2021/03/04/ceec92bc-7d12-11eb-b3d1-9e5aa3d5220c_story.html.

[12] Erin Schumaker, “Swift Backlash after Texas Governor Drops COVID Restrictions,” ABC News, accessed March 7, 2021, https://abcnews.go.com/Health/swift-backlash-texas-governor-drops-covid-restrictions/story?id=76225286; “Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2” (Centers for Disease Control and Prevention, February 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/masking-science-sars-cov2.html.

[13] Christopher Ogolla, “The Public Health Implications of Religious Exemptions: A Balance Between Public Safety and Personal Choice, or Religion GoneToo Far?,” Health Matrix 25 (n.d.): 53.

[14] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020)

[15] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020), (Sotomayor, Sonia, dissenting).