Professor Farber has hit the nail on the head. Constitutional rights aren't suspended during a pandemic, nor has SCOTUS endorsed a special "pandemic standard of review." As the Jacobson case amply demonstrates, courts should apply the usual due-process standard of review, taking into account the special circumstances confronting state and local governments when contagion hits their communities.The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts
20 Pages Posted: 29 Jun 2020 Last revised: 7 Jul 2020
Daniel A. Farber
University of California, Berkeley - School of Law
Date Written: June 25, 2020
AbstractWhen emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination.
Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today.
During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.
