May 4, 2020

Legal Precedents for Epidemic Response


  • Since the founding of the United States, our courts have debated the government’s power to respond to epidemics.
  • Courts have allowed governments at different levels to take strict measures to combat epidemics, while requiring that the actions be reasonable.
  • Under some circumstances, courts have permitted involuntary quarantine and compulsory vaccination as legal expressions of state police power, even when those actions override religious freedom or the right to vote.

Since the founding of the United States, our courts have considered the legality of public health interventions. The founders had ample experience with smallpox, yellow fever, cholera, typhoid, and malaria. It should be no surprise that they considered how the American system of government could or should respond to outbreaks.

American courts have generally upheld even draconian medical interventions, as long as those measures are reasonably tailored to fit the situation. The Supreme Court held in the landmark 1905 case Jacobson v. Massachusetts that states have the authority to order compulsory vaccination when there is a threat of epidemic. Similarly, courts have consistently upheld mandatory quarantines if they are not carried out in an arbitrary or unreasonable manner.

Legal Precedents for Epidemic Response

Longstanding American Experience With Epidemics

Though medicine has progressed immeasurably over the past two centuries, officials at all levels of government have been working to ward off disease since well before America’s founding.

At least eight of the 13 American colonies adopted laws imposing harsh penalties — including death without benefit of clergy — on people who violated quarantines. The founders frequently considered epidemics and possible responses to them. Thomas Jefferson wrote at length about the dangers of disease in cities, going so far as to call for the reorganization of American cities to lower disease risk. George and Martha Washington spent part of the summers of 1793 and 1794 in Germantown, 10 miles from the nation’s capital in Philadelphia, to avoid yellow fever outbreaks. Dolley Madison lost her first husband in the yellow fever outbreak of 1793. Alexander Hamilton worried during that same outbreak in Philadelphia about the “undue panic which is fast depopulating the city, and suspending business both public and private.”

In 1798, a city official in Philadelphia issued guidance for surviving yellow fever. He noted: “The interest and will of the Society ... is sufficient to justify the peaceable removal of every individual or family in which a contagious disease of a malignant kind makes its first appearance, to such distance from the city as will prevent all danger of its being communicated.”

That same year, the Supreme Court shortened its argument calendar in response to a yellow fever outbreak. It had done the same thing in 1793, and it postponed scheduled arguments in October 1918 because of the Spanish flu epidemic. The Supreme Court recently announced postponement of oral arguments due to the threat of the coronavirus outbreak, citing these previous instances.

Federal vs. State Governments: the Police Power

Regulating health falls under the government’s “police power.” The term originated in the 16th century and refers to the general authority to pass laws providing for public safety and welfare. The very first usage specifically referred to cleaning a military camp, presaging the term’s connection with health measures.

Under the American constitutional system, the police power resides with the states. Alexander Hamilton referred to the “domestic police of a state” in the Federalist Papers in the context of “administration of the general government.” He contrasted that power with authority over “[c]ommerce, finance, negotiation, and war.”

In 1796, Representative Albert Gallatin argued that states should control quarantine law because of its connection to the police power. That view was seconded by Chief Justice John Marshall in the case Gibbons v. Ogden in 1824, when he described the police power as all the residual power in states predating the Constitution’s transfer of some powers to the federal government. He described “health laws of every kind” as the quintessential example of the police power.

The enactment of the 14th Amendment meant that courts had a new directive to ensure individual rights against states, but the Supreme Court continued to uphold state laws relating to epidemics. In 1902, the court upheld a Louisiana ban against immigration at a time of epidemic, and in 1905 it upheld Massachusetts’ mandatory smallpox vaccination program.

Court Precedents on Public health

The 1905 Jacobson case firmly established judicial deference to state health initiatives in times of epidemic as long as the measures were reasonable and proportional to the threat. In that case, the city of Cambridge, Massachusetts, levied a $5 fine on a Lutheran pastor who refused to participate in a mandatory smallpox vaccination program.

A 7-2 majority of the court held that the mandatory vaccination program did not violate the 14th Amendment because states “may be justified in restricting individual liberty ... under the pressure of great dangers.” The majority argued that mandatory immunization against a looming smallpox epidemic was not “arbitrary or oppressive” because “all civilized peoples” recognized that vaccinations play an important part in eradicating the disease.

The Supreme Court has recognized limits to the state police power. In 1941, in the case Edwards v. California, the court invalidated a California law that prohibited bringing indigent people into the state. The plaintiff had brought his indigent brother-in-law to California from Texas. California claimed that indigent people brought into the state from the South came with various diseases and caused an increase of sexual assaults and petty crime that had “featured the criminal calendars of every community into which they have moved.” The Supreme Court unanimously held that the California statute violated the federal commerce clause despite the state’s police power.

Lower courts have ruled in several cases that the state police power supersedes specific individual liberties in times of epidemic. In 1903, the Supreme Court of Pennsylvania upheld the denial of a charter to a Christian Science Church that refused to follow health guidelines. The Supreme Court of Idaho in 1920 ruled that people could be properly excluded from an election if they could not come to a voting location due to a quarantine during an influenza epidemic. The Supreme Court of New Hampshire held in 1897 that a health officer could not be sued for detaining a family in their part of a boarding home while the government took over the rest to use as a “pest house.” While these precedents would not control what a federal court might rule today, they suggest the depth of deference courts have traditionally accorded to state quarantine measures in time of epidemic.

Issue Tags: COVID-19, Judiciary