How U.S. Pandemic Restrictions Became a Constitutional Battlefield

How U.S. Pandemic Restrictions Became a Constitutional Battlefield

After 100 Years, Public Health Controls Are Under Attack

In November, the U.S. Supreme Court struck down emergency limits that New York State had placed on religious gatherings because of the COVID-19 pandemic. Such restrictions, the Court ruled, unconstitutionally prohibited New Yorkers from freely exercising their religions. It was the first time in history that the nation’s highest court has intervened to strike down similar regulations during a public health crisis.

The justices in the majority pointed to history to support their ruling. Justice Neil Gorsuch characterized public health measures put in place during previous pandemics as “relatively modest,” while Justice Brett Kavanaugh called current COVID-19 regulations “severe.” In a recent speech to the Federalist Society, Justice Samuel Alito explained that states’ emergency restrictions during the COVID-19 pandemic were “more severe, extensive, and prolonged” than any that had been previously promulgated.

But this story is plainly untrue. A century ago, states and cities took aggressive regulatory action to prevent the spread of the influenza pandemic. They placed limits on public gatherings, mandated masks, and forced businesses and schools to close. Disgruntled parties only rarely questioned the constitutionality of such measures, and judges almost never struck them down. Today, by contrast, judges are striking down state public health rules in states across the country, arguing that they violate federal and state constitutions.