An Unhealthy Definition of Rights

The public health profession uses the term “social determinants of health” to describe the social conditions that combine to influence the health of individuals and communities. These include such measurable elements as education, housing, and economic stability as well as environmental quality, structural racism, and other forms of systemic discrimination, some of which are less quantifiable. In Constitutional Contagion, Wendy Parmet demonstrates that among these elements we also need to include law.

It was a given that legal issues would arise in the course of the US response to the Covid-19 pandemic. In the spring of 2020 governors and mayors almost immediately drew on explicit or assumed legal authority to issue shutdown orders and impose other mitigation measures, even as the public health response became fuel for the country’s political polarization. By mid-2021, barely more than a year into the crisis, more than a thousand lawsuits had been filed against pandemic restrictions and mandates, and the Supreme Court had abruptly reversed itself and begun accepting religious objections to such measures rather than the recommendations of those whose job was to keep the public safe—with major doctrinal consequences that are still unfolding.

Parmet, a law professor at Northeastern University who has written widely on public health, recounts these developments, but her goal is deeper: to illuminate the currents in American legal culture that contributed to what she deems the country’s “catastrophic response” to the pandemic. She places on display an American exceptionalism of a particularly disquieting form: a legal mindset that has come to value individual freedom over communal welfare and so has “lost sight of contagion’s most compelling lesson: Our own health depends on the health of others.”

There is no dispute that the country fared poorly during the pandemic in both absolute and relative terms. The US death toll that reached one million in May 2022 represented more than 300 deaths per 100,000 people, compared to France at 230, Germany at 170, and Canada at 110. Among all high-income countries, none performed as badly as the United States.

There was no single cause for this dismal record, and Parmet doesn’t try to assign one. Donald Trump was a contributor, certainly, with his administration’s garbled and often misleading messaging and his embrace of the pandemic as culture-war fodder. The country’s notorious lack of a social safety net added not only to the raw numbers but to the disparate outcomes between rich and poor, white and black; without paid sick leave, blue-collar workers often had no choice but to remain on the job with little protection from the virus. The political scientist Jason Blakely, in a recent issue of Harper’s, argued that the scientific establishment was partly to blame, having undermined its own authority and alienated large segments of the public by insisting that science had all the answers when so much, like school closings, struck ordinary people as open to question or at least in need of discussion. As the months passed and public discourse grew more toxic, it was not easy to remember that protecting a society’s health is, as Parmet puts it, “one of the reasons we have governments.”

Her argument isn’t that law, by itself, disabled the country’s pandemic response, but rather that American legal culture—constitutional law in particular—played an unacknowledged part “in generating the vulnerabilities that the pandemic exploited.” A uniquely American body of law “privileged a particularly thin and one-sided conception of liberty” that helped to “amplify the forces that tear at our social fabric.”

The fight over vaccine mandates that emerged on several fronts during the pandemic demonstrates her point. Vaccine requirements are nothing new; George Washington required soldiers in the Continental Army to be vaccinated against smallpox. Nor is resistance to them a historical anomaly. Jacobson v. Massachusetts, the Supreme Court decision that established the legal framework for dealing with vaccine resistance, dates to 1905 and stems from an individual’s refusal to accept a required smallpox vaccine.

The legal historian John Fabian Witt recounts the background of the Jacobson case in his American Contagions: Epidemics and the Law from Smallpox to COVID-19 (2020). He notes that vaccine mandates, while common at the turn of the twentieth century, were often controversial. During an outbreak of smallpox in 1902, the city of Cambridge, Massachusetts, imposed a smallpox vaccine requirement on all adults, as authorized by state law. A Lutheran minister, Henning Jacobson, refused to comply, claiming that because he had religious and health-related objections to vaccination, the government lacked authority to require his compliance. Convicted of violating the city’s order and fined five dollars, Jacobson lost his state court appeal and took his case to the US Supreme Court.

By a vote of 7–2, the justices upheld Jacobson’s conviction with a ringing endorsement of vaccine mandates in service of the public good. “There are manifold restraints to which every person is necessarily subject for the common good,” Justice John Marshall Harlan wrote in the majority opinion.

Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

In Harlan’s words, this “liberty regulated by law” was the “fundamental principle of the social compact.”

In Parmet’s view, the Jacobson opinion exemplifies a “rich conception of liberty,” which was lost during the Covid-19 pandemic to the “narrow and individualistic conception of liberty” that came to dominate the public and judicial discussion. She does not exempt the Biden administration from criticism for the “individualistic framing” it adopted. In May 2021, referring to the vaccines that by then were widely available, Rochelle Walensky, head of the Centers for Disease Control and Prevention, declared that “we really want to empower people to take this responsibility into their own hands.” Parmet observes, “Once health risks are viewed in this manner, pandemic mitigation measures appear as intrusions on individual liberty.”

Courts embraced the individualistic framing as if on cue. In January 2022 a federal district judge barred the navy from penalizing a group of SEALs who claimed religious reasons for refusing the Covid vaccine. Parmet notes this astonishing case, but without giving the details that demonstrate how far away from the “rich liberty” of the Jacobson case the legal system was moving not even two years into the pandemic. The district court decision’s list of the SEALs’ rationales for refusing to be vaccinated included the “belief that modifying one’s body is an affront to the Creator” and “direct, divine instruction not to receive the vaccine.” The navy argued that the requested waivers would render the SEALs nondeployable, to the detriment of military readiness and the national defense. Judge Reed O’Connor was unmoved. “The Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy,” he concluded. (The Supreme Court granted the government’s emergency request for a stay of O’Connor’s decision, over the objections of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, while the case proceeded. Congress later that year ordered the Pentagon to lift the deployment bar on unvaccinated service members, and the navy’s compliance rendered the case moot.)

It would have been useful for Parmet to have given the political context for the judicial decisions she cites. O’Connor, appointed to the Federal District Court in Fort Worth, Texas, by President George W. Bush, is a conservative activist who once declared the entire Affordable Care Act unconstitutional. In an even more astonishing decision, he recently ruled that the inclusion of pre-exposure prophylaxis medications (PrEP) that protect against HIV infection on the list of “essential service” drugs that employee insurance plans must cover without a copay violates the religious freedom of employers who believe that PrEP contributes to homosexuality. (That decision, Braidwood Management v. Becerra, is on appeal, and Judge O’Connor’s ruling is on hold.) Kathryn Kimball Mizelle, a federal district judge in Florida who ruled that the CDC lacked authority to require masks on public transportation, was appointed by Donald Trump. (The plaintiff in that case was an organization called the Health Freedom Defense Fund.) At the Supreme Court, the six justices who voted in January 2022 to block enforcement of the Biden administration’s mask-or-test mandate for companies with at least one hundred employees were all Republican appointees, three of them Trump’s.

To see how rapidly and profoundly the balance has shifted from the societal to the individual, it is worth setting Constitutional Contagion side by side with Witt’s similarly named American Contagions, on the legal history of pandemics. (The two authors cite each other.) After discussing the public resentment provoked by measures aimed at containing the historic flu epidemic of 1918–1919, Witt writes:

Despite its persistence, the libertarian thread in American popular reaction to public health law has historically had little uptake in formal constitutional law, at either the state or federal level. Judges have been willing to give public health orders a hard second look. They have been willing to strike some orders down. But rarely have courts interfered with the basic power to keep people safe in a moment of contagion.

Observing that “when jurists voiced ideas about values in the jurisprudence of hygiene, they typically placed social solidarity over individual liberty,” Witt clearly did not anticipate a decision like Judge O’Connor’s. Nor could he have: he wrote his book in the spring of 2020, based on a lecture on epidemics and the law that he gave in his American legal history class at Yale Law School, and it was published that October. The trajectory that Parmet describes in her book, published in May of this year, still lay ahead.

Witt deserves credit for seeing around one corner. In May 2020 the first religion-based challenge to a Covid order reached the Supreme Court, brought by the South Bay United Pentecostal Church in California. Governor Gavin Newsom had ordered attendance at worship services to be limited to a maximum of one hundred people. Seeking an injunction, the church argued that the order violated the First Amendment’s guarantee of the free exercise of religion.

On May 29, 2020, the Court refused to issue the injunction. Noting the severity of an epidemic with neither a vaccine nor a known treatment available, Chief Justice John Roberts wrote that as long as protective measures appeared to fall within reasonable limits,

they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

The chief justice’s opinion was no surprise; as Witt’s book demonstrates, that was how things were supposed to work. The shock lay in the fact that the decision was not unanimous. There were four dissenters—Justices Thomas, Alito, Gorsuch, and Brett Kavanaugh—all of whom would have granted the injunction. Just in time, Witt caught the decision’s deeper meaning:

The almost perfect partisan split in the case offered considerable evidence for a new politics in which ideas about religious liberty attacked the basic structures of the regulatory state, including the public health law powers that predate the beginnings of the republic.

Parmet’s discussion of the Covid religion cases focuses on the subsequent moment when that dissent was endorsed by a majority of the justices and the Supreme Court changed course. It was November 25, 2020, one day short of a month after Amy Coney Barrett’s confirmation to the seat Justice Ruth Bader Ginsburg had held until her death that September. The question in Roman Catholic Diocese v. Cuomo was the constitutionality of the New York governor’s order capping attendance at worship services in designated “red zones” of maximum Covid spread at ten people. The vote to invalidate the order was 5–4. The unsigned, seven-page opinion was joined by the four dissenters from the previous May plus Justice Barrett. It cited neither Jacobson nor Roberts’s opinion in the California case.

The partisan split was glaring and was not limited to the Supreme Court. For an April 2022 article in The Yale Law Journal, Zalman Rothschild, a Bigelow fellow at the University of Chicago Law School, examined all the vaccine mandate cases in the federal district and appellate courts that involved religious objections. Democratic-appointed judges rejected the religious claims and ruled for the government 80 percent of the time, while Republican-appointed judges accepted them and ruled against the government 77 percent of the time.¹

In the winter of 2021 Parmet sounded a warning about the religious favoritism she saw developing in the Covid-related decisions. “As a result,” she wrote in The Journal of Law, Medicine and Ethics, “the states’ capacity to carry out essential public health functions, as well as protect their populations from Covid-19 or other, potentially more lethal, pandemics, is in jeopardy.”² Clearly, she is deeply versed in the details and implications of how the Covid decisions rewrote the doctrine of free exercise. However, her account in the book would have benefited from more detail, not only about the emergent doctrine of religious privilege but about the political setting that propelled many of these cases into the courts.

The cases did not appear randomly on federal court dockets. Major litigating organizations of the Christian right used resistance to Covid mandates as a vehicle for advancing their broader cause in the courtrooms of friendly judges. The Navy SEALs, for example, were represented by First Liberty Institute, which also represented Joe Kennedy, the “praying coach” who won his Supreme Court case for the right to commandeer the fifty-yard line for prayer after football games at the public high school that employed him. Alliance Defending Freedom, known for representing the Colorado baker who refused to bake a wedding cake for a same-sex couple, filed seventeen cases challenging Covid measures on religious grounds and, according to its website, assisted 3,200 houses of worship with Covid-related issues.

I realize, however, that in Constitutional Contagion Parmet has a broader project in mind than tracing the evolution of religious privilege. When she writes that “to the new majority, public health evidence is irrelevant; there is only one type of freedom, and it is freedom from government restrictions,” she invites us to consider the hollowed-out version of freedom that emerged from the pandemic. This is the “contagion” of the book’s title, and its roots are deep. Parmet finds them in how the Constitution itself has come to be understood.

Early in the Republic, governmental power to protect public health and safety was robust, although it resided mostly at the state rather than federal level. It was based on the common-law doctrine of Salus populi suprema lex—the well-being and health of the public is the highest law. The phrase was deployed explicitly in a Supreme Court decision in 1847 and by reference in numerous others, including the Jacobson case. Yet during the same term that the Court decided Jacobson, it also decided Lochner v. New York, striking down a state-imposed limit on the hours that bakers could work.

Like the vaccine mandate in Jacobson, the New York law was aimed at protecting health. But this time the Court, ruling for the bakery owner who brought the case, saw the question as one of the business owner’s individual rights. The law was an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract,” the Court declared. (Justice Harlan, the author of the Jacobson majority opinion, was one of the four dissenters.) The Court, Parmet observes, “was willing to accept limits on the liberty of individuals who were thought to be potentially contagious; it was far less tolerant of laws that sought to alter the social conditions in which contagion flourishes.”

Although the New Deal Court eventually repudiated Lochner, the fact remains that the rights guaranteed by the Constitution are for the most part negative rights against government interference rather than positive rights to government-provided goods or services. This feature of American constitutionalism has been widely observed and continually contested. In his 1944 State of the Union address, Franklin D. Roosevelt called for “a second Bill of Rights,” one that would include guarantees to the right to “a useful and remunerative job,” “a decent home,” “adequate medical care,” “a good education,” and “the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.” Cass R. Sunstein, in The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (2004), wrote that the address “has a strong claim to being the greatest speech of the twentieth century.”

The mid-twentieth-century Supreme Court came close to adopting aspects of a positive-rights constitution, notably a right to education, but those opportunities vanished under a Court that, beginning with Richard Nixon’s appointment of four justices between 1969 and 1971, became steadily more conservative. (Michael J. Graetz and I traced this arc in our 2016 book, The Burger Court and the Rise of the Judicial Right.) What it means to have a constitution of negative rights has probably never been more clearly expressed than in a decision to which Parmet gives welcome attention, DeShaney v. Winnebago County (1989).

In this case, the father of a four-year-old boy was known by government social service workers to be abusing his son, yet the county failed to remove the boy from his custody. A final beating left the boy severely brain-damaged. The question was whether the government’s failure to act on its knowledge violated the child’s constitutional right to due process. Rejecting the claim, Chief Justice William Rehnquist wrote for the majority:

Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.

DeShaney, which deserves to be better known, was a foundational statement of modern constitutional law.³ For several years after the case was decided, I copied and saved every petition to reach the Court that asked the justices to reconsider or at least modify the decision. The petitions filled a sizable carton, which I eventually discarded when I ran out of storage space and patience and it was clear that no change would be forthcoming from the Court.

Parmet writes that having a negative-rights Constitution during the pandemic has resulted in a dangerous “asymmetry of judicial intervention.” She explains: “Although courts increasingly strike public health laws as unconstitutional, they rarely conclude that the government’s failure to protect health is unconstitutional.” While the justices may assume that by rejecting claims of positive rights, they are appropriately refraining from making policy decisions, Parmet argues persuasively that the choice to enforce negative rather than positive rights has inevitable if implicit policy consequences:

Policymakers who act to promote public health may be viewed as violating constitutional rights; those who take no action are spared such condemnation. Thus, during the pandemic, policymakers who decided to let Covid-19 surge faced no constitutional risk. Likewise, although individuals who rejected Covid-related orders had viable—if not always successful—constitutional claims, those who needed assistance or were at elevated risk from the lack of mitigation measures had none. All the power and force of constitutional law pushed against public health interventions.

Parmet acknowledges that a system of positive constitutional rights would put unaccustomed pressure on courts, requiring judges to “tackle difficult trade-offs.” She writes, “Courts lack the power of the purse. Without it, how can they fund the positive rights they proclaim?” Should a constitutional right to health “be read as demanding that states provide health insurance? If so, must any particular set of services be covered? And must the insurance program take any particular shape?” What interventions might a court demand during a pandemic?

For nearly three decades a great natural experiment has been playing out in South Africa, where the antiapartheid constitution of 1996, written in consultation with American legal academics, includes guarantees of social and economic rights, including housing, health care, food, and water. A “gap between promise and practice,” in the words of Pierre de Vos, a constitutional law professor at the University of Cape Town, emerged quickly. As a young law lecturer at the time, he recalled in a 2017 essay, “I truly believed that the newly adopted Constitution would change everything” and would transform South African society.⁴

Unsurprisingly, constitutional transformation proved not so simple. The South African Constitutional Court has had to perform a “precarious balancing act” to preserve its legitimacy in the face of the obvious limits on its ability to enforce the constitution’s promises. An important early decision, the Grootboom case in 2000, required the government to take reasonable steps to realize the constitutional right of access to housing. But when the lead plaintiff, Irene Grootboom, died eight years later, she was still living in a shack. “Court judgements on their own cannot effect the social and economic transformation of society,” De Vos observed.

While the South African experience might serve as a cautionary tale, it interests me for another reason: as an illustration of the sheer complexity of harnessing law as a tool to serve broad social goals rather than individual interests. Somewhere between the lofty aims of the South African constitution and the sheer meanness of the DeShaney decision, such a legal system might be found. But it is unlikely to be found in the United States, where consensus is lacking on what the goals should even be.

One test, outside the scope of Parmet’s project but going directly to the question of whose interests the health care system should serve, is presented by the pharmaceutical industry’s attack on the federal law that empowers Medicare to negotiate prices for some prescription medications. Among the claims in the industry’s multiple lawsuits is that the required negotiation, which will presumably lead to lower prices for Medicare prescriptions, amounts to an unconstitutional “taking” of private property without compensation and to compelled speech in violation of the First Amendment. It would be unrealistic to discount the chance that some of the lawsuits’ claims will succeed in some court, even in the Supreme Court.

To accept the idea that law is one of the “social determinants of health” poses the question of whether, in that capacity, it is advancing or impeding the goal of a healthy society for all. Parmet argues at the end of this provocative and illuminating book that the legal structure we now have has given us “a government that is less responsive to the public’s interest and less capable of protecting those interests.” Is it not only Covid but the Constitution itself, she asks, that is “pathogenic”? A bold question, and a fair one.