One of the few certainties about the coronavirus pandemic is the prospect of lawsuits concerning exposures, medical treatment, and future quarantines and vaccination orders. But one lesson from past outbreaks is that courts have seldom interfered with government authority to clamp restrictions on private citizens, as long as they have some connection with public well-being.
The federal government passed its first quarantine law in 1796 during a yellow fever epidemic. In an unrelated case in 1824, Supreme Court Chief Justice John Marshall said quarantines restricting movement from endangered areas were within “the acknowledged powers of the states to provide for the health of the citizens.”
In 1902, the Supreme Court allowed Louisiana to prevent a ship of healthy passengers from docking at a port quarantined during an epidemic, on the grounds that the travelers might spread the illness. And in 1905 the court upheld Massachusetts’ requirement of smallpox vaccinations for all adults in the city of Cambridge during an outbreak of the disease, and a $5 fine against a resister who argued that the mandate violated his liberty.
But the courts have also insisted on at least some arguable connection between public health and government curbs on freedom, as San Francisco health officials learned in 1900.
After nine deaths from bubonic plague were reported in Chinatown, the city health office, with support from state and federal health officials, ordered a quarantine of a 12-block area that prevented thousands of residents from leaving. The order ignored evidence that the disease was spread by rats, not humans — and the quarantine applied only to Chinese Americans, carving out a handful of homes and other buildings owned by whites.
In a lawsuit by a grocer named Jew Ho, the Ninth U.S. Circuit Court of Appeals said a limited quarantine of the death sites might have been justified, but there was no authority “to enforce any ordinance in this city that shall discriminate against any class of persons in favor of another.”
The appeals court quoted an 1886 appeals court ruling in another case from San Francisco’s Chinatown, a challenge to an ordinance requiring a permit to operate a laundry in a wooden building — permits that were regularly denied to Chinese Americans and granted to others. The high court said the government could not enforce a law that, though neutral on its face, was “administered by public authority with an evil eye and an unequal hand.”
“The Constitution requires that you treat similarly situated people similarly,” said Michelle Mello, a Stanford professor of law and medicine. “If this affected only people of Asian descent, it would be a different conversation.
“The government needs to show a public health necessity,” Mello said, and if it does, it’s “given a lot of deference by the courts.”
The same might be true of private facilities, like the Life Care Center nursing home in Kirkland, Wash., where 29 patients or former patients have died of the coronavirus.
If a nursing home were sued for failing to protect its residents or staff, Mello said, a jury would be instructed to “put itself in the shoes of the decision maker at that time and under those circumstances,” considering such factors as shortages of supplies or nursing staff, in deciding whether it acted reasonably.
Or maybe they’d be expected to act even more carefully, said another health law professor, Dorit Reiss of UC Hastings law school in San Francisco.
“In a crisis, reasonableness can change, but it can change either way,” she said. Lawyers for the victims would argue, and judges might agree, Reiss said, that “in an emergency you should take more precautions.”
When it comes to government intervention during an outbreak, though, courts have generally refrained from intervening as long as the action was evenhanded.
Opinions differ on the effectiveness and potential hazards of smallpox vaccinations, Justice John Marshall Harlan said in the Supreme Court’s 7-2 ruling in 1905 upholding the vaccination mandate in Cambridge, Mass. But he said the procedure has “strong support in the experience of this and other countries,” and from “high medical authority,” and courts must accept those judgments when lawmakers rely on them.
Even the government’s failure to act — for example, by not promptly providing test kits or other tools and procedures to combat COVID-19 — is extremely difficult to challenge in court.
“It’s really hard to successfully sue the government for not mounting an effective public health response,” Mello said. And Reiss noted that U.S. law shields the federal government from suits for discretionary policy decisions.
But government authority is not unlimited, even during an epidemic. Quarantines, for example, can be challenged not only on racial grounds, as in the 1900 Chinatown case, but also for being too broad.
“Mass quarantines are going to run into constitutional problems,” said Reiss. A state or local government will need evidence of a “public health necessity” to cordon off specific areas, she said, and would probably have difficulty justifying a quarantine of an entire city.
At times, the courts’ response seems to have been based on who is affected by government orders.
When San Joaquin County ordered a quarantine in 1948 for people with venereal disease, it put some of them in the county jail, which was already overcrowded and had been condemned for its conditions by a state legislative committee.
But the state’s Third District Court of Appeal in Sacramento said health officers were entitled to choose the site in an emergency, and the court also upheld the quarantining of individuals whose homes were determined to be sites of prostitution, saying they were “more likely to be infected than not.”
By contrast, the South Carolina Supreme Court in 1909 refused to allow an elderly “lady of refinement” suffering from leprosy to be quarantined in a “pesthouse” — a small building located near a trash heap and formerly used to confine black people with smallpox — and ordered her relocated to a “comfortable cottage.”
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