Covid-19 has spurred an outbreak of a different kind: litigation. To combat the pandemic, officials imposed extensive community-level mitigation measures using their broad but largely untested emergency powers. In response, more than 1000 suits challenged orders shuttering businesses, banning indoor worship services, restricting travel, and mandating mask wearing.1 As with other social aspects of the pandemic, this litigation will have lasting effects.

Courts have historically been deferential to health orders, especially during disease outbreaks. Most famously, in 1905 in Jacobson v. Massachusetts, the Supreme Court upheld a vaccination mandate and emphasized that public health protection was the primary responsibility of elected officials and the experts to whom they delegated power. Judicial review, the Court found, is limited to determining whether officials’ decisions have “no real or substantial relation to” their goals, are “a plain, palpable invasion of rights,” or are “arbitrary and oppressive in particular cases.” Since then, courts have attempted to reconcile Jacobson with evolving conceptions of individual rights.

Initially, courts rejected most challenges to Covid-related emergency orders. For example, in In re Abbott, the Fifth Circuit Court of Appeals vacated a restraining order against a Texas directive halting most abortions during the emergency. The court read Jacobson as requiring very deferential review, even in cases in which important constitutional rights, such as abortion rights, were at stake.

Most courts haven’t read Jacobson as expansively but have nevertheless granted considerable deference to health officials.1,2 For example, courts rejected the idea that there is a right to keep one’s business open during a pandemic or that emergency orders represent an unconstitutional taking of property. Although one federal appeals court held that closing private schools implicates parents’ fundamental right to choose private schooling, that court and others rebuffed assertions that public-school closures are constitutionally impermissible. Even most free-speech and right-to-travel challenges were rejected.2 Courts have been more receptive, however, to challenges relating to religious liberty and the scope of executive authority.3

In May 2020, in South Bay United Pentecostal Church v. Newsom, the Supreme Court refused to enjoin California’s capacity limits on in-person religious services. There was no majority opinion, but Chief Justice John Roberts’s concurring opinion cited Jacobson and cautioned courts not to second-guess health officials. The Court’s approach changed, however, after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg. In November 2020, in Roman Catholic Diocese v. Cuomo, the Court enjoined New York State’s capacity limits on in-person religious services in areas heavily affected by Covid-19. The majority ruled that because the order treated schools and certain “essential” secular activities more leniently than houses of worship, it discriminated against religion and was subject to strict scrutiny, which required the government to show that the rule was narrowly tailored to advance a compelling interest. Although indoor worship had spurred outbreaks elsewhere, the Court found that because no outbreaks had occurred at the houses of worship that filed the lawsuit, the rule was more restrictive than necessary and couldn’t pass strict scrutiny.

The majority cited neither Jacobson nor any scientific evidence. Concurring, Justice Neil Gorsuch opined that Jacobson must be read in light of current understandings of religious liberty. A dissent noted that the state had treated worship similarly to large secular gatherings, such as theatrical performances, and criticized the majority for substituting its own judgment about which activities were appropriate for comparison.

After Roman Catholic Diocese, the Supreme Court issued several more orders granting relief to religious-liberty claimants. In February 2021, for example, it revisited South Bay and, without providing much analysis, enjoined California from banning indoor worship services (but allowed capacity limits and a ban on chanting).

Then, in April 2021, in Tandon v. Newsom, the Court found that a California rule restricting in-home gatherings to three households impermissibly burdened religion by preventing plaintiffs from holding in-home Bible-study groups. Although California’s rule didn’t single out religious activity, the majority concluded that by regulating similar secular activities and spaces (such as movie theaters) less strictly, the rule wasn’t neutral toward religion and merited strict scrutiny. The Court explained that the determination of which activities are similar to the regulated religious activity depends solely on disease-transmission risk — yet it based its decision about what was similar to in-home Bible study on no scientific evidence. The Court further found that the order failed strict scrutiny because the state hadn’t shown that less restrictive precautions were ineffective.

Several cases have examined executive officials’ authority to issue emergency orders. Although most orders have been upheld, some courts have read statutory powers narrowly and questioned both the processes used to issue orders and the constitutionality of statutes granting officials broad authority. In Wisconsin Legislature v. Palm, for example, the Wisconsin Supreme Court ruled that the health secretary lacked the authority to issue protracted emergency orders without legislative involvement or a public notice-and-comment period.4 Later, that court ruled in Fabick v. Evers that the governor lacked the authority to mandate mask wearing.

Several courts, including the Supreme Court, have considered challenges to the eviction moratorium instituted by the Centers for Disease Control and Prevention (CDC). Most notably, on August 26, 2021, the Supreme Court in Alabama Association of Realtors v. Department of Health and Human Services affirmed a lower court’s order blocking the moratorium. By a 6-to-3 vote, the Court in an unsigned opinion ruled that the CDC had overstepped its authority under the Public Health Service Act (PHSA). That statute, the Court said, confined the CDC to measures that “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself,” such as isolating infected individuals, inspecting premises, and exterminating pests. If Congress wants an eviction moratorium, the justices suggested, it must pass legislation to impose one or to clarify that the CDC may impose one.

Some lower courts have also read the PHSA narrowly. For example, in State of Florida v. Becerra, a federal judge ruled that the CDC exceeded its authority in requiring cruise ships to implement extensive Covid-19 mitigation measures unless nearly all passengers and crew members were vaccinated. The court read the PHSA in a manner similar to the Supreme Court’s interpretation in the eviction moratorium case. It also found that Congress gave the CDC too much discretion and that even during emergencies, a notice-and-comment process may be required before the CDC can issue requirements for cruise ships. The 11th Circuit Court of Appeals refused to allow the order to remain in effect while the CDC appeals, which signals its likely acceptance of the lower court’s reasoning. Although the cruise ship requirements more closely resemble the disease prevention measures enumerated in the PHSA than the eviction moratorium, the Supreme Court’s decision adversely affects the CDC’s prospects on appeal.

Taken together, these cases pose new challenges to officials’ ability to protect public health. The decisions with regard to free exercise of religion suggest that health orders will face strict scrutiny if they regulate religious practices more strictly than any secular activity that courts deem similar. Any restrictions that touch on religious activities may therefore be constitutionally suspect.

A key question is how these rulings will affect vaccination mandates and other public health laws that don’t directly implicate worship. Though courts have consistently held that neutral, generally applicable vaccination mandates needn’t include religious exemptions, Tandon suggests a reduced willingness to view laws that include some exemptions as neutral. Also, in June 2021, in Fulton v. City of Philadelphia, five justices voiced concerns about Employment Division v. Smith, a 1990 holding that neutral laws of general applicability shouldn’t receive strict scrutiny when challenged on free-exercise grounds. Although Fulton didn’t decide whether Smith should be overruled, it did hold that a law permitting individualized exceptions wasn’t generally applicable and that strict scrutiny therefore applied. This holding creates further uncertainty about how courts will view vaccination mandates that allow exemptions. To date, most lower courts that have heard challenges to Covid-19 vaccination mandates have upheld them without mentioning Fulton or deciding whether a religious exemption was required. However, on August 31, 2021, in Dahl v. Board of Trustees, a federal district court temporarily blocked enforcement of a university vaccination mandate against an athlete whose religious exemption request was denied. In a sparsely reasoned decision citing Fulton, it deemed strict scrutiny appropriate because the mandate had a mechanism for individualized religious exemptions.

Apart from religion-related cases, few courts adjudicating Covid-related claims have shown an interest in expanding individual rights. Nevertheless, there are indications of a growing unwillingness to read executive powers expansively. The potential implications of the Supreme Court’s decision regarding the CDC’s authority are especially troubling. To ensure that the CDC isn’t hobbled during future outbreaks, we believe that Congress should clarify that it intends the agency to have broader powers — within constitutional limits. Many state legislatures are moving in the opposite direction by enacting or considering legislation stripping officials of public health powers.5

Emergencies can lead to abuses of authority and the disregard of individual rights. Courts are rightly charged with rectifying such abuses. But in their zeal to protect religious liberty and constrain executive action, courts may be leaving officials with fewer tools to fight Covid-19 and the next pandemic.