Safe at Home? Legal and Liberty Concerns with Stay-At-Home Orders

Trudy Henson
Volume 28, 
Issue 2

Introduction: Covid-19 Comes to the United States

On December 31, 2019, China alerted the World Health Organization (“WHO”) of a pneumonia-like illness that caused strange, glass-like accumulations in the lungs of patients and was associated with a high mortality rate.1Archived: WHO Timeline–COVID-19, World Health Organization (Apr. 27, 2020), First identified in the city of Wuhan, the novel coronavirus—later to be named SARS CoV-2—quickly swept through China and Europe, leading the WHO to declare Covid-19, the illness caused by SARS CoV-2, a Public Health Emergency of International Concern (“PHEIC”) on January 30, 2020.2Id.

Although later found to have been circulating undetected in the United States as early as January 2020,3CDC Covid-19 Response Team, Evidence for Limited Early Spread of COVID-19 Within the United States, January–February 2020, CDC (June 5, 2020), (“[D]ata indicate that sustained, community transmission had begun before detection of the first two nontravel–related U.S. cases, likely resulting from the importation of a single lineage of virus from China in late January or early February, followed by several importations from Europe.”). the first identified case of “community transmission” of Covid-19 in the United States was detected February 26, 2020, in California.4Press Release, CDC, CDC Confirms Possible Instance of Community Spread of COVID-19 in U.S. (Feb. 26, 2020), At the time of illness, the U.S. patient had no known risk of exposure to Covid-19; the U.S. only had fifteen known cases, fourteen of which were directly attributable to travel.5Id.

By March 11, however, the number of Covid-19 cases surpassed 100,000 globally, and the United States was reporting over 1,000 suspected or confirmed cases in forty-three states.6March 11 Coronavirus News, CNN (Mar. 11, 2020, 11:55 PM), As case numbers on the East and West coasts began to climb, governors began taking extraordinary measures, declaring states of emergency; encouraging (and later mandating) teleworking en masse; and closing schools and businesses. By the end of March, many states, including California, Oregon, Washington, New York, New Jersey, Maryland, and Delaware, would amend their emergency declarations to issue stay-at-home orders.7See Amanda Moreland et al., Timing of State and Territorial COVID-19 Stay-at-Home Orders and Changes in Population Movement – United States, March 1 – May 31, 2020, CDC (Sept. 4, 2020), Eventually, for the first time in U.S. history, all fifty states would be under governor-declared states of emergency;8Justine Coleman, All 50 States Under Disaster Declaration for First Time in US History, The Hill (Apr. 12, 2020, 4:31 PM), many of those would include stay-at-home orders as well.

In the face of an unknown virus, with no known treatment, limited knowledge on transmission, and testing shortages, the use of stay-at-home orders was a necessary response. Although debate centered on what constituted “essential businesses” (those allowed to stay operating during the shutdown), most residents in states with stay-at-home orders were, at least initially, compliant. However, as stay-at-home orders were extended and phased re-openings of states made clear that a return to “normal” was a long way off, civil and legal challenges multiplied.

Although Jacobson v. Massachusetts9197 U.S. 11 (1905). has long upheld a state’s right to take action to protect the health of its citizens, the Supreme Court acknowledged such rights were balanced against the intrusion on individual liberty: in times of crisis, unless a state’s action had “no real or substantial relation to” the crisis or the measures were “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” courts would defer to the state.10Id. at 31. The Covid-19 response measures have cast Jacobson’s holding in a new light, in a new century: What does the balance of civil liberties against the state’s interest in protecting its citizens look like in the twenty-first century?

This Article will examine the powers of the states and governors to issue emergency declarations to protect health; state-issued orders in response to Covid-19, focusing particularly on the quarantine, or “stay-at-home,” aspect of the orders; and legal and civil-noncompliance challenges to the orders to explore the long-term impact of these measures on individual liberty interests. To date, “[t]his century-old historical principle has been reaffirmed just this year by a chorus of judicial voices,”11League of Indep. Fitness Facilities and Trainers, Inc. v. Whitmer, 814 Fed. Appx. 125 (6th Cir. 2020). and the tenets of Jacobson remain intact. In general, the shift has come from the public as they become more educated on the legal rights of a state, and their own inability to be “wholly freed from restraint.”12Jacobson, 197 U.S. at 26. However, as the Covid-19 pandemic continues, current reasoning from the Supreme Court and others suggest that deference to state orders will diminish as acute crises become longer lasting, allowing for more nuanced and tailored responses.

I.     The State’s Established Role as Protector of Public Health

The states’ broad powers to protect its citizens falls under the police powers, reserved to the states by the Tenth Amendment.13U.S. Const. amend. X. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.. In 1905, the Supreme Court upheld states’ right to protect the health and safety of its citizens in Jacobson, a case which contested the right of the state to compel smallpox vaccination during a smallpox outbreak. In Jacobson, the Supreme Court wrote:

Although this court has refrained from any attempt to define the limits of that [Tenth Amendment] power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description’ . . . . According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.14Jacobson, 197 U.S. at 25.

Unless a state’s actions had “no real or substantial relation to” the crisis or the measures were “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,”15Id. at 31. the state’s actions would prevail.16Id. In Jacobson’s case, the Supreme Court found a properly enacted, constitutional vaccination requirement did not unnecessarily intrude on Jacobson’s individual liberty.

Furthermore, the Court famously wrote, “But the liberty secured by the Constitution of the United Sates to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”17Id. at 26. Rather, the Court said the State must balance its interest in protecting the public safety against the intrusion on an individual’s liberty.18Id. at 29. Although “extreme cases” may “justify the interference of the courts to prevent wrong and oppression,”19Id. at 38. “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint . . . as the safety of the general public may demand.”20Jacobson, 197 U.S. at 29. Even prior to Jacobson, the Supreme Court upheld a State Board of Health’s right to quarantine during an unspecified epidemic, finding that “from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress.” Compagnie Francaise de Navigation A Vapeur v. State Bd. of Health, La., 186 U.S. 380, 387 (1902). Furthermore, an attempt to recover damages from the economic hardships resulting from such measures and arguing that such measures were prohibited because of its impact on interstate commerce were unsuccessful. Id. at 396–97.

In the over 100 years since Jacobson, most challenges to a state’s authority to protect the public health—from individual quarantine measures to requiring vaccinations—are typically decided in favor of the state based on the JacobsonCourt’s reasoning.21See, e.g., Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015). Jacobson has been the touchstone for states’ public health powers, but public health legal experts have questioned how its tenets would withstand a modern, widespread pandemic, such as the Spanish Influenza of 1918.

A.     States Grant Governors the Power to Take Extraordinary Actions in Declared Emergencies

While police powers are reserved to the states, the locus of that power is vested in the governor. States designate governors “Commander-in-Chief” through state constitutions, and usually charge governors with an affirmative duty to protect residents.22See, e.g., Va. Code Ann. § 44-8 (2020). In addition to constitutional power, states grant governors specific statutory powers as well. These statutes outline more explicitly the powers and procedures that enable governors to act—in this case, to protect public health safety.

Whether specific to public health emergencies or not, all states grant their governors the power to declare a state of emergency for either man-made or natural disasters. These declarations allow for the exercise of extraordinary powers, often allowing governors to suspend any statute, law, or regulation that may impede response. Specifically, the declarations allow a governor to deploy resources, expend funds for response efforts and resources, seize property, and order evacuations.23See, e.g., Mont. Code Ann. §10-3-104 (2) (West 2016); Or. Rev. Stat. § 433.441 (West 2016). Most governors may “[t]ransfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.”24Fl. Stat. Ann. § 252.36 (5)(c) (West 2016). In addition to these specific statutory provisions, most states include a broad grant of power to the governor to “[u]tilize all available resources of the state government and of each political subdivision of the state, as reasonably necessary to cope with the emergency.”25Id. at (5)(b). Finally, almost all states empower governors to order testing, vaccination, quarantine, and isolation,26See, e.g., N.J. Rev. Stat. § 26:13-3 (2016); New. Mex. Stat. § 12-10A-5 (2016). although many require delegation to or coordination with the state health official.27See, e.g., Ga. Code Ann. § 38-3-51 (2016) (“The Governor may direct the Department of Public Health to coordinate all matters pertaining to the response of the . . . public health emergency.”); Va. Code Ann. § 44-146.17(1) (2016) (“[E]xecutive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area.”). As part of their affirmative duty to protect state residents, governors are also empowered to “prohibit or restrict contact between the State and the place affected by the disease.”28MD. Code Ann., Health—Gen. § 18-212.1 (2016). During Covid-19, Governors have implemented this power with mixed results. Press Release, Governor Andrew M. Cuomo, Governor Cuomo Announces Individuals Traveling to New York from an Additional State Will Be Required to Quarantine for 14 Days (Aug. 4, 2020),

To many unaware of these long-standing powers, the breadth of these powers may seem surprising. But it’s important to note that these gubernatorial powers are exercised frequently in most states, often for weather-related disasters, and occasionally for public health threats, with little or no protest.29Kaci Hickox, a nurse who was quarantined after returning from West Africa in 2014, is an exception to this; she used the attention to seek a Quarantine Bill of Rights. SeeHickox v. Christie, 205 F.Supp.3d 579 (D.N.J. 2016). For example, seven states declared states of emergency for the H1N1 flu in 2009,30See Lainie Rutkow, An Analysis of State Public Health Emergency Declarations, 104 Am. J. Pub. Health 1601 (2014), and states with outbreaks of measles have routinely used public health emergency powers, including mandatory quarantine and isolation orders, to prevent outbreaks from spreading.31See, e.g., Postexposure Prophylaxis, Isolation, and Quarantine to Control an Import-Associated Measles Outbreak — Iowa, 2004, CDC (Oct. 22, 2004), What is different about the use of these powers during the Covid-19 pandemic is the scale at which they are being employed: the use of broad stay-at-home orders by states, and multiple states at the same time, is unprecedented.

B.     Governor’s Executive Orders in Response to Covid-19

As Covid-19 spread across the United States, states faced difficult decisions with incomplete knowledge. Although the virus was spreading like wildfire across Europe, little was known about transmission, testing was limited, and treatments were unknown. Furthermore, federal guidance was scant and as caseloads grew, governors increasingly became aware that decisions would rest on them.32Ailsa Chang, Across the Country, Governors Are Taking the Lead on Coronavirus Response, NPR (Apr. 17, 2020, 4:20 PM),

States that were first hit with the virus, including California, New York, and Washington, acted quickly with executive orders that initially mobilized resources and implemented physical and social distancing practices. As more cases were discovered, these executive orders quickly morphed into “shelter at home” or “stay-at-home” orders. The stay-at-home orders varied, but in most states the orders amounted to a shutdown of the state, closing schools and nonessential businesses, encouraging or requiring telework, and requiring healthcare practitioners to cancel elective procedures.33See, e.g., Wash. Proclamation No. 20-25 (Mar. 23, 2020),; Ca. Exec. Order N-33-20 (Mar. 19, 2020),; N.Y. Exec. Order No. 202.8 (Mar. 20, 2020),; Or. Exec. Order No. 20-12 (Mar. 23, 2020),; Md. Exec. Order No. 20-03-30-01 (Mar. 30, 2020),; N.J. Exec. Order No. 107 (Mar. 21, 2020), Residents were ordered to stay home, often indoors, and forgo gatherings larger than ten people;34See, e.g., Interim Guidance: Get Your Mass Gatherings or Large Community Events Ready for Coronavirus Disease 2019 (COVID-19), CDC (Apr. 5, 2020), many businesses and facilities that remained open were ordered to operate at a drastically reduced percentage of occupancy, with CDC-recommended distancing, masking, and sanitation protocols.35Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, CDC (May 6, 2020),

California became the first state to issue a stay-at-home order, doing so on March 19, 2020. Two pages long, the svelte executive order amended the previous declaration of emergency to “order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors,” as defined by the federal government.36See Ca. Exec. Order N-33-20 (Mar. 19, 2020), Other states quickly followed with orders that included language unique to state concerns. New Jersey,37N.J. Exec. Ord. No. 107 (Mar. 21, 2020), for example, wrote that “[i]ndividuals who have to travel . . . should only use public transportation only if they have no other feasible choice.”38Id. Several states included religious services in their definition of “essential services,” including Texas, which defined essential services to include everything on The Department of Homeland Security’s list, “plus religious services conducted in churches, congregations, and houses of worship.”39Tex. Exec. Order No. Ga-14, 2 (March 31, 2020), Alabama included religious services as essential, and specified the conditions under which they could occur.40Scott Harris, State Health Officer, Ala. Dep’t Pub. Health, Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19 (Apr. 3, 2020), (“A person may leave his or her place of residence to attend an event that is a religious worship service, wedding, or funeral in either of the following circumstances: (i) The event involves fewer than 10 people and the people maintain a consistent six foot distance from one another; or (ii) The event is a ‘drive-in’ worship service that adheres to the following rules: 1. All participants shall remain in their vehicles for the entirety of the service; 2. The participants in each vehicle all share the same place of residence; and 3. Participants do not come within six feet of participants in other vehicles.”). Most states specified that outdoor “recreational activities” (exercising, walking animals, etc.) were allowed so long as the proper distance was maintained.41See, e.g., Or. Exec. Order No. 20-12 (Mar. 23, 2020),

These stay-at-home orders were largely targeted at limiting the spread of Covid-19, protecting the supply chain, increasing hospital capacity, and limiting the economic costs of a widespread pandemic.42See Maggie Davis, Christine Gentry & Trudy Henson, Calling Their Own Shots: Governors’ Emergency Declarations During the COVID-19 Pandemic, 12 ConLawNOW 95 (2020). Given the ability of asymptomatic individuals to transmit the disease, and that particularly early on into the virus the nation was experiencing severe personal protective equipment (“PPE”) shortages in health settings, stay-at-home orders provided a stop-gap measure as states rushed to prepare field hospitals, procure PPE, implement policies that could decrease transmission, and hopefully allow science to catch up to Covid-19’s rapid spread.43Megan L. Raney, Valerie Griffeth & Ashish K. Jha, Critical Supply Shortages—The Need for Ventilators and Personal Protective Equipment During the Covid-19 Pandemic, 41 New Eng. J. Med. 382 (2020). . Originally, stay-at-home orders were typically for a period of thirty days, although some states’ orders were shorter—Georgia’s, for example, was originally drafted to last ten days44Ga. Exec. Order No. (Apr. 2, 2020),—and most states ending up extending these orders.45See, e.g., Ga. Exec. Order No. (Apr. 8, 2020),

II.     Legal Cases Arising out of Stay-At Home Orders

Though necessary, challenges to the orders were almost immediate. Most states have seen some civil protests to the prolonged stay-at-home orders. In addition, individuals, businesses, and even lawmakers and political officials have filed suit in state or district court, challenging provisions of the stay-at-home orders, resulting in consideration by the Supreme Court at least twice, and making headlines in other states, including Michigan, California, and Wisconsin.46See Mark A. Hall, Michelle M. Mello & David M. Studdert, The Legal Authority for States’ Stay-at-Home Orders, 29 New Eng. J. Med. 383 (2020), A number of cases have made their way to the Supreme Court. See, e.g., S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Cases have challenged curfews;47Shows v. Curtis, No. 1:20-CV-00088-MOC-WCM, 2020 WL 1953621 (W.D.N.C. Apr. 23, 2020). closures to nonessential businesses,48See, e.g., Benner v. Wolf, No. 20-CV-775, 2020 WL 2564920 (M.D. Pa. May 21, 2020); Amato v. Elicker, No. 3:20-cv-464, 2020 WL 2542788 (D. Conn. May 19, 2020); Open Our Or. v. Brown, No. 6:20-cv-773-MC, 2020 WL 2542861 (D. Or. May 19, 2020); SH3 Health Consulting, LLC v. Page, No. 4:20-CV-00605, 2020 WL 2308444 (E.D. Mo. May 8, 2020); Hartman v. Acton, No. 2:20-CV-1952, 2020 WL 1932896 (S.D. Ohio Apr. 21, 2020); Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020). including marijuana stores,49Commcan, Inc. v. Baker, No. 2084-cv-00808, 2020 WL 1903822 (Sup. Ct. Mass. April 16, 2020). gyms,50League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 Fed. Appx. 125 (6th Cir. 2020); Best Supplement Guide, LLC v. Newsom, No. 2:20-cv-00965-JAM-CKD, 2020 WL 2615022 (E.D. Cal. May 22, 2020). gun stores and shooting ranges,51Altman v. County of Santa Clara, No. 20-cv-02180-JST, 2020 WL 2850291 (N.D. Cal. June 2, 2020). entertainment venues,52McCarthy v. Cuomo, No. 20-cv-2124, 2020 WL 3286530 (E.D.N.Y. June 18, 2020); Slidewaters LLC. V. Wash. Dep’t of Labor & Indus., No. 2:20-CV-0210-TOR, 2020 WL 3130295 (E.D. Wash. June 12, 2020); Talleywhacker, Inc. v. Cooper, No. 5:20-CV-218-FL, 2020 WL 3051207 (E.D.N.C. June 8, 2020). and cosmetologists;53Pro. Beauty Fed’n of Cal. v. Newsom, No. 2:20-cv-04275-RGK-AS, 2020 WL 3056126 (C.D. Cal. June 8, 2020). changes to voting procedures;54Tex. Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). whether Covid-19 constitutes a public health emergency;55Lawrence v. Colorado, No. 1:20-cv-00862-DDD-SKC, 2020 WL 2737811 (D. Colo. Apr. 19, 2020). and challenges to limits on gatherings.56See, e.g., Geller v. De Blaiso, 20-cv-3566, 2020 WL 2520711 (S.D.N.Y. May 18, 2020) (“The March 25 Executive Order is content-neutral. It bans ‘any non-essential gathering of individuals of any size for any reason.’ It does not target the contents of the speech itself or the listener’s agreement or disagreement with those contents.”); Givens v. Newsom, No. 2:20-cv-00852-JAM-CKD, 2020 WL 2307224 (E.D. Cal. May 8, 2020) (“[T]he Court finds Plaintiffs are not likely to succeed on their challenge to the State’s stay at home order as an impermissible exercise of emergency police powers.”). But see Ramsek v. Beshear, No. 3:20-cv-00036-GFVT, 2020 WL 3446249 (E.D. Ky. 2020) (“Plaintiffs do not dispute that the Governor has a significant interest in protecting Kentuckians from Covid-19. They simply argue the Governor has gone too far in his pursuit of that interest. Based upon the record before it, the Court agrees. Plaintiffs are likely to succeed in showing that the Mass Gatherings Order is not narrowly tailored.”). In addition, cases have included general challenges to the constitutional soundness of executive orders.57Six v. Newsom, No. 8:20-cv-00877-JLS-DFM, 2020 WL 2896543 (C.D. Cal. May 22, 2020); Henry v. DeSantis, No. 20-cv-80729-SINGHAL, 2020 WL 2479447 (S.D. Fla. May 14, 2020); McGhee v. City of Flagstaff, No. CV-20-080081-PCT-GMS, 2020 WL 2308479 (D. Ariz. May 8, 2020).

The question quickly became: Would Jacobson v. Massachusetts hold up to modern times? The majority of cases—spanning various individual liberty interests, as well as business and economic interests—apply Jacobson to find governors are acting within their powers, even as their orders cut off access to income and commerce, group worship, abortion, and other individual rights long held sacred in the United States—reinforcing that such rights are not “wholly without restraint,” as the Supreme Court held over 100 years ago in Jacobson. The expediency of the measures, however, have come under scrutiny as what were originally anticipated as stop-gap measures have become a longer-term temporary way of living. As time and science aid in better tailoring restrictions, restrictions will need to be curtailed, or they will likely not withstand courts’ scrutiny.

A.     Challenges to Governors’ Authority from Other State Actors

Notably, a number of suits challenging governors’ orders have come from other state actors, including state legislatures, elected officials, and even, in one case, the Lieutenant Governor. These challenges—both legislative and legal—have proven unsuccessful. In Wolf v. Scarnati,58233 A.3d 679 (Pa. 2020). for example, the Pennsylvania State Supreme Court found that the legislature could not terminate the Governor’s disaster proclamation “by passing a concurrent resolution, without presenting that resolution to the Governor for his approval or veto.”59Id. The court “express[ed] no opinion as to whether the Governor and the General Assembly . . . . presents a superior approach.”60Id. at 1. It did reinforce, however, as it had in a prior case,61Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020). that the Governor’s emergency “proclamation had the ‘full force of law.’”62Scarnati, 233 A.3d at 690 (quoting Friends of Danny DeVito, 227 A.3d at 892); see also Elkhorn Baptist Church v. Brown, 466 P.3d 30 (Or. 2020).

Other courts have been careful to likewise delineate the contours of their decisions. In Legislature v. Palm,63Wis. Leg. v. Palm, 942 N.W.2d 900 (Wis. 2020). for example, the Wisconsin Supreme Court made national headlines for a decision that was seen as “strik[ing] down the governor’s stay-at-home order.”64See, e.g., Molly Beck, Wisconsin Supreme Court Strikes Down Governor’s Stay-At-Home Order, USA Today (May 13, 2020, 6:54 PM),; Kolby Itkowitz, Wisconsin Supreme Court Strikes Down Governor’s Extension of Stay-At-Home Order, Wash. Post (May 13, 2020, 10:04 PM), However, very early into its decision, the court writes: “This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.”65Palm, 942 N.W.2d at 905. Rather, the court’s decision was about the state health official’s extension of the order—again, a decision that rested on administrative grounds.66Id.; see also House of Representatives v. Governor, 943 N.W.2d 365 (Mich. 2020). Cases that are still developing, such as the Georgia Governor’s suit against the Atlanta mayor for requiring Atlanta residents to wear masks,67See Complaint, Kemp v. Bottoms, 2020 CV338387 (Ga. Super. Ct. Fulton Cty. Jul. 16, 2020), and, similarly, the threat of suit from North Carolina’s Lieutenant Governor for the Governor’s order requiring masks,68See Letter from Lt. Governor Daniel J. Forest to Hon. Roy Cooper (Jun. 25, 2020),; Zack Burdryk, North Carolina Lt. Governor to Sue Governor Over Coronavirus Orders, The Hill (Jun. 25, 2020), may help further articulate the lines of gubernatorial power as balanced against other state actors.

B.     Individual Liberty Challenges to Governors’ Orders

More numerous are cases from private actors (individuals, businesses, etc.) that challenge specific provisions of governors’ orders. Many of these suits touch on core constitutional rights—the right to travel, to worship, and to access abortion. Yet for the most part, courts (including the Supreme Court) have deferred to state orders. These decisions show the latitude governors will be granted in the acute phase of response to a novel pathogen.

1.     Quarantine Orders Affecting Travel

In Carmichael v. Ige,69470 F. Supp. 3d 1113 (D. Haw. 2020. the District Court used Jacobson’s deferential standard to uphold the governor of Hawaii’s fourteen-day quarantine measures for residents and nonresidents who travelled to Hawaii and, eventually, interisland.70Id. at 1138. In denying the request for injunctive relief, the court found that the quarantine measures “bear a real or substantial relation to public health,”71Id. at 1144. and that such governor proclamations were not a “‘palpable invasion’ of Plaintiffs’ Fifth and Fourteenth Amendment rights,” whether under “traditional levels of scrutiny or Jacobson’s highly deferential standard.”72Id. at 1145 (citing Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)).. Similarly, the court wrote, “Although the right to travel within the United States is constitutionally protected, that does not mean that a temporary quarantine cannot be instituted in certain areas when evidence shows that unlimited travel there would directly and materially interfere with the safety and welfare of that area.”73Id. at 1148. For another look at state travel restrictions, see also Bayley’s Campground Inc. et al. v. Mills, No. 2:20-cv-00176-LEW, 2020 WL 2791797 (D. Me. May 29, 2020).

2.     Orders Affecting Access to Abortion

The Fifth Circuit Court of Appeals, in In re Abbott,74954 F.3d 772 (5th Cir. 2020). used Jacobson to reach a similarly deferential conclusion on a different area of individual liberties. In a petition for writ of mandamus, the court found that the governor of Texas’s March 22, 2020 Executive Order was subject to Jacobson’s standard.75Id. at 777–78. The three-week order, which required that all licensed healthcare providers and facilities “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance . . . would be at risk for serious adverse medical consequences or death,”76Id. at 780. included healthcare facilities providing pre-viability abortions. Finding that closing such facilities bore a “real and substantial relation” to Texas’s Covid-19 crisis by decreasing the hospital capacity or PPE supply,77Id. at 784. the court went on to write that the order “merely postpones non-essential abortions,” and therefore was not “an outright ban on pre-viability abortions.”78Id. at 788. The order, then, was not “beyond question, in palpable conflict with the Constitution.”79Id. at 787–88 (emphasis in original). The Eighth Circuit used similar reasoning to find an Arizona Department of Health suspension of surgical procedures was likewise not an unconstitutional infringement.80See In re Leslie Rutledge, 956 F.3d 1018 (8th Cir. 2020) (using Jacobson’s test to find that the Arizona Department of Health order had a “real or substantial relation” to the state’s interest in responding to Covid-19, and that it did not constitute a “palpable invasion” of constitutional rights because it did not present an undue burden, nor was it was an outright ban on abortions). But see South Wind Women’s Ctr., LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1932900, at *7 (W.D. Okla. Apr. 20, 2020) (“This effective denial of a constitutional right represents the type of ‘plain, palpable invasion of rights’ identified in Jacobson as beyond the reach of even the considerable powers allotted to a state in a public health emergency.”).

But the Sixth and Eleventh Circuits decided similar cases differently. In Robinson v. Attorney General,81957 F.3d 1171 (11th Cir. 2020). the Eleventh Circuit denied a stay of a preliminary injunction against Alabama, upholding the district court’s finding that Alabama’s medical restrictions limiting abortions “are undue under Casey, and that they impinge the right to an abortion in a ‘plain, palpable’ fashion under Jacobson.”82Id. at 1182. The Sixth Circuit, in Adams & Boyle, P.C. v. Slatery,83956 F.3d 913 (6th Cir. 2020). affirmed a preliminary injunction84Id. at 917. The Sixth Circuit affirmed the district court’s order but directed the court to modify the preliminary injunction. against Tennessee’s temporary ban on abortions, finding that it was “incompatible not only with Jacobson, but also with American constitutional law writ large.”85Id. at 927. Furthermore, the court distinguished the case from In re Abbott, which upheld the temporary ban on abortions, by noting that the Texas order contained “an important caveat permitting doctors to perform procedures that, in their clinical judgment” would not adversely affect hospital capacity or access to PPE.86Id. The Tennessee order contained no such caveat, allowing procedures only if the woman faced “serious adverse health consequences,” a “narrow provision” that did not “save [the executive order’s] constitutionality.”87Id.

3.     Orders Affecting the Right to Gather and Worship

By far the most numerous cases contesting governors’ orders are those that limit the size of group gatherings—particularly in houses of worship. This may have been in part due to the outbreak’s timing. The Covid-19 response required states to begin closing down just as many Americans were about to celebrate Easter, considered the most holy day in the Christian calendar.88Don Hill, World: Easter Is Holiest Day of the Year for Christians, RadioFreeEurope RadioLiberty (Apr. 2, 1999), Churches filed suit to be allowed to hold services; some church leaders made headlines, declaring they would hold services in defiance of governors’ orders.89See Rich McKay, Some Defiant U.S. Churches Plan Easter Services, Ignoring Public Health Guidelines, Reuters (Apr. 10, 2020, 6:23 AM),

The outcome of these cases have varied, largely depending on the way the governors’ orders are written. A handful of lower courts found that state orders prohibiting religious gatherings that met the safety requirements of similar entities did constitute a palpable infringement of constitutional rights.90See, e.g., Maryville Baptist Church v. Beshear, 957 F.3d 610, 615 (6th Cir. 2020) (“But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom. Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers.”); On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901 (W.D. Ky. 2020) (“But even under Jacobson, constitutional rights still exist. . . . But mindful of that importance, the Court believes there is a strong likelihood On Fire will prevail on the merits of its claim that Louisville may not ban its citizens from worshiping – or, in the relative safety of their cars, from worshiping together.”); First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *7 (D. Kan. Apr. 18, 2020) (“Given the circumstances, Plaintiffs have made a substantial showing that development of the current restriction on religious activities shows religious activities were specifically targeted for more onerous restrictions than comparable secular activities.”). Much longer, however, is the list of courts that have upheld orders which limit gatherings, even when those limits may impact religious gatherings.91See, e.g., Cross Culture Christian Conservative Ctr. v. Newsom, 445 F. Supp. 3d 758 (E.D. Cal. 2020) (denying Plaintiff’s request for a TRO to enjoin officials from enforcing stay-at-home orders for church’s services, finding that “[e]ven in times of health, government officials must often strike the delicate balance between ensuring public safety and preserving the Constitution’s fundamental guarantees. The judiciary plays an important role in ensuring that balance is permissibly struck. But during public health crises, new considerations come to bear, and government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society’s most vulnerable. Under these rare conditions, the judiciary must afford more deference to officials’ informed efforts to advance public health—even when those measures encroach on otherwise protected conduct; even when thoughtful minds could disagree about how to best balance” considerations); High Plains Harvest Church v. Polis, No. 1:20-cv-01480-RM-MEH, 2020 WL 3263902 (D. Colo. Jun. 16, 2020) (denying plaintiff’s request for a TRO against limits on religious gatherings); Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv-00907-RFB-VCF, 2020 WL 3108716 (D. Nev. Jun. 11, 2020) (denying plaintiff’s request for a preliminary injunction against limits on gatherings, finding: “The Supreme Court in Jacobson v. Massachusetts, and more recently in South Bay, has made clear that the state has broad authority to pass emergency measures to protect public health, and will not upset that authority absent clear excess of constitutional boundaries. Because the Court finds for the reasons stated above that the Emergency Directive is a valid use of state police power, it finds that there is no due process violation”); Christian Cathedral v. Pan, No. 20-cv-03554-CRB, 2020 WL 3078072 (N.D. Cal. Jun. 10, 2020) (denying Plaintiff’s TRO against a county official, finding that “[t]his record does not support Christian Cathedral’s contention that worship services are treated less favorably than graduation ceremonies. On the contrary, it shows that the proposed graduation ceremony and worship services were prohibited for the same reason: because they were to be held indoors”); Calvary Chapel of Bangor v. Mills, No. 1:20-cv-00156-NT, 2020 WL 2310913 (D. Maine May 9, 2020) (denying plaintiff’s TRO to block governor’s ten-person limit on gatherings, finding that “[t]he orders are in place to protect Maine residents from the spread of a virus that can cause serious illness and death. Given what we know about how COVID-19 spreads, the nature of the orders—in permitting drive-in services, online services, and small gatherings, while restricting large assemblies of people—demonstrates a substantial relation to the interest of protecting public health”); Cassell v. Snyders, 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020) (denying Plaintiff’s motion for a TRO and preliminary injunction against orders related to religious gatherings, finding that “COVID-19 qualifies as the kind of public health crisis that the Supreme Court contemplated in Jacobson and that the coronavirus continues to threaten the residents of Illinois”); Lighthouse v. Northam, Civ. No. 2:20cv204, 2020 WL 2110416 (E.D. Va. May 1, 2020) (denying request for preliminary injunction, finding that the Governors order limiting all gatherings to ten people were “facially neutral. They do not refer to a religious practice to single it out for discriminatory treatment. They prohibit all social gatherings of more than ten individuals, secular and religious”); Gish v. Newsom, No. EDCV 20-755 JGB (KKx), 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020) (denying plaintiff’s TRO against state and local officials in order to host religious gatherings, finding that California’s orders “have a substantial relation to the COVID-19 crisis” and that “there is no ‘plain, palpable invasion’ of Plaintiffs’ free exercise of religion”); Legacy Church, Inc. v. Kunkel, No. CIV 20-0327, 2020 WL 1905586 (D. N. Mex. Apr. 17, 2020) (denying request for a TRO against the limitation on religious gatherings as “[t]he Court conclude[d] that: (i) the Order does not violate Legacy Church’s First Amendment religious freedom rights, because the Order is neutral and generally applicable; and (ii) the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church’s First Amendment rights to assemble”).

The Seventh Circuit, for example, in Elim Romanian Pentecostal Church v. Pritzker,92962 F.3d 341 (7th Cir. 2020). upheld the governor’s restrictions, noting that there was no unconstitutional discrimination in the governor’s ban on gatherings of groups larger than ten:

The vital question therefore is whether Executive Order 2020-32 discriminates against religion. Funerals, weddings, and similar activities are subject to the same size limit that applies to worship services. Illinois did not set out to disadvantage religious services compared with secular events. Nor does the order discriminate among faiths.93Id. at 346.

In Robert v. Neace,94958 F.3d 409 (6th Cir. 2020). however, the Sixth Circuit found that Kentucky Governor Andrew Beshear’s order, which it noted as having “four pages of exceptions”95Id. at 413. to what constituted a “life-sustaining” entity, did “likely fall on the prohibited side of the line.”96Id. The court noted that while the governor’s orders were likely not “motivated by animus towards people of faith,”97Id. given the number of exceptions to the closures “and the kinds of group activities allowed,” the order was “remove[d] from the safe harbor for generally applicable laws.”98Id. The church would agree to hold services in a manner that met the required standards for other “life-sustaining” businesses. Furthermore, the court wrote:

Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time? . . . All in all, the Governor did not customize his orders to the least restrictive way of dealing with the problem at hand.99Id. at 416.

Additionally, as states continued to work on their Covid-19 response, the death of George Floyd in police custody led to nationwide protests and unrest, further complicating the response and highlighting the difficulty of balancing free speech with public health interests.100See Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. Times (July 10, 2020), In many cases, courts noted the disparity between the treatment of protest gatherings and church gatherings: “If officials are now exempting protestors, how can they justify continuing to restrict worshippers? The answer is that they can’t. Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are ‘open’ and which remain ‘closed.’”101Spell v. Edwards, 962 F.3d 175, 181 (5th Cir. 2020) (Ho, J., concurring).

III.     Dissipating Deference: Supreme Court Decisions Indicate the Future Direction of Jacobson Considerations

In addition to the flurry of Jacobson jurisprudence being generated in lower courts, the Supreme Court has considered two separate applications for injunctive relief related to Covid-19.102Calvary Chapel Dayton Valley v. Sisolak 140 S. Ct. 2603 (2020); S. Bay Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020). Both petitions involved limits on religious gatherings and both times, the petition was denied, upholding governors’ orders limiting religious gatherings.103See Calvary Chapel Dayton Valley, 140 S. Ct. at 2603; S. Bay United Pentecostal Church, 140 S. Ct. at 1613. Of course, as has been pointed out, “opinions accompanying the denial of injunctive relief pending appeal ‘cannot have the same effect as decisions on the merits.’”104Ramsek v. Beshear, No. 3:20-cv-00036-GFVT, 2020 WL 3446249, at *5 (E.D. Ky. June 24, 2020) (quoting Teague v. Lane, 489 U.S. 288, 296 (1989)). But the cases are significant because they suggest that lower courts are providing the proper analysis under Jacobson, and indicate the direction of analysis future cases may face as the pandemic continues and governors seek to reopen states while protecting residents.

The first, South Bay United Pentecostal Church v. Newsom,105140 S. Ct. 1613 (2020). was denied May 29, 2020, in a 5–4 decision. There, a church sought to enjoin enforcement of Governor Gavin Newsom’s order that restricted places of worship from gathering.106Id. at 1613. At the time of the Supreme Court’s consideration, attendance was permitted but limited to twenty-five percent capacity or 100 attendees.107Id. In his concurrence denying the petition, Chief Justice John Roberts wrote that “although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.”108Id. “Secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances”109Id. were subject to similar or more stringent requirements.110Id. Furthermore, “the Order exempts or treats more leniently only dissimilar activities.”111S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (citation omitted) (including grocery stores, banks, and laundromats, which have neither “large groups” nor people “in close proximity for extended periods”). Chief Justice Roberts goes on to state that when state officials “‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary.’”112Id.

Writing for the dissent, Justice Brett Kavanagh, joined by Justices Clarence Thomas and Neil Gorsuch, reinforced California’s “compelling interest in combating the spread of COVID–19 and protecting . . . its citizens.”113Id. at 1614. But California failed to justify “distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.”114Id. at 1615. Accordingly, writes Justice Kavanagh, California’s order “contravenes the Constitution.”115Id. at 1614.

But the level of deference granted to a governor’s state action may dissipate over time. In late July, almost two months after denying the South Bay petition, the Supreme Court denied a similar petition for Calvary Chapel Dayton Valley v. Sisolak.116140 S. Ct. 2603 (2020). This time, however, in his ten page dissent, Justice Samuel Alito, joined by Justices Thomas and Kavanaugh, strenuously protested the denial of injunctive relief, pointing to the governor’s order, which allowed casinos to open at fifty percent capacity while still prohibiting houses of worship from gathering at the same occupancy restrictions.117Id. at 2603­–04. Alito points out that for Calvary Chapel Dayton Valley, this fifty percent cap would constitute ninety congregants; for a casino, it could still mean thousands of occupants.118Id. at 2604–05. Additionally, the dissent points to the disparity between the governor publicly supporting a protest that violated the State’s fifty person cap on outdoor gatherings, while still prohibiting congregants to gather.119Id. at 2607. Alito cites the State’s argument that its decisions should be upheld under Jacobson’s deferential standard.120Id. at 2608. But, Alito writes,

Even under this test, the directive’s discriminatory treatment would likely fail for the reasons already explained. And in any event, it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic. Language in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for small pox. It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.121Id. Indeed, the duration and specificity of orders are taken into consideration elsewhere. See Soos v. Cuomo, No. 1:20-cv-651, 2020 WL 3488742 (N.D. NY Jun. 26, 2020) (“[T]here is wide and reasonable disagreement about exactly how to implement rules and regulations to achieve those ends, and, as is particularly present in this case, even more so with respect to reopening in a way that promotes safety, economic viability, and the enjoyment of all the rights that the people of this country and the State of New York are guaranteed.”).

Both Justices Gorsuch and Kavanaugh wrote additional, separate dissents as well that both point to similar disparities. The mounting strength of dissents in these cases122See, e.g., Barnes v. Ahlman, 140 S. Ct. 2620 (2020) (Sotomayor, J., dissenting). suggests that the 5–4 outcome in cases upholding Jacobson’s deference to state actions may soon swing the other direction.

IV.     Long-Term Impact on Civil Liberties

The plethora of cases since March 2020 underscores the difficulty of protecting constitutional rights while protecting public health and the importance of doing so evenly across the country. Challenges to orders, specifically mask requirements, may provide additional tests to Jacobson’s relevance. State legislatures may impose limits on gubernatorial orders as well as states reconsider the impact governors’ powers can have in a longer-term emergency. For example, both Virginia and Alabama have introduced legislation that would impose a time limit on a governor’s emergency declaration without approval from the state’s general assembly. A Virginia Joint Resolution states that an executive order related to an emergency “that restricts, limits, or prohibits otherwise lawful action by a private business, nonprofit entity, or individual shall not exceed a period of forty-five days” without approval by the General Assembly.123H.D.J. Res. 5001, 2020 Gen. Assemb., Spec. Sess. (Va. 2020). A similar, but failed, Senate Bill in Alabama attempted to limit Governor-declared emergencies to fourteen days, and to only allow extension “by joint resolution of the Legislature.”124S. 334, 2020 Leg., Reg. Sess. (Ala. 2020). If the legislature is not in session, the extension could be approved by “joint proclamation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives.” Id.

Ongoing challenges to individual liberty interests will likely prove more successful if governors do not more narrowly tailor orders as the pandemic continues. For now, however, even after over 100 years—under modern Supreme Court scrutiny and unprecedented state-level actions—Jacobson has held and has served as a reminder to a public that has forgotten, or never knew, the limits of their own freedom in the face of an acute, immediate public health threat.

Share this article