As the scope and reach of the COVID-19 pandemic's impact remain difficult to over-state, it will surprise few to learn that the full reach of public health officials' legal/statutory claims did not escape judicial scrutiny. What is not yet well understood, however, is a more granular understanding of how legal decisions informed particular legal doctrines, including those involving religious liberty and statutory interpretation in the public health silo. To this end, a recent paper by Michelle Mello et al., Judicial Decisions Constraining Public Health Powers During COVID-19: Implications for Public Health Policy Making, takes an initial empirical cut.
Deploying "legal epidemiology," the paper analyzes 112 federal and state courts decisions between March 2020 and March 2023 that involve successful plaintiff challenges to federal, state, or local pandemic-motivated "mitigation" orders. The authors argue that the 112 cases reveal "areas of profound instability in how courts analyze challenges to exercises of public health legal powers." The disruptions were particularly acute in the religious liberty and statutory authority areas. The findings make clear that going forward assertions of public health authority will unlikely benefit from "broad [judicial] deference." The paper's abstract follows.
"Public health legal powers are increasingly under pressure from the courts in the United States. During the COVID-19 pandemic, individuals and organizations successfully challenged many community mitigation orders (for example, mask mandates, vaccination mandates, and restrictions on gatherings), demonstrating the legal vulnerability of disease control measures. Analyzing 112 judicial decisions in which the plaintiff prevailed from March 2020 through March 2023, we examined the ways in which courts constrained public health powers during the COVID-19 pandemic. We found that in these 112 decisions, courts shifted how they analyze religious liberty claims and reviewed challenges to the exercise of statutory powers by health officials in novel ways. We discuss implications for public health policy going forward, and we recommend ways in which legislatures and health officials can design policies to maximize their prospects of surviving legal challenges."
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