Amicus Curiae Brief — Betten Chevrolet, Inc., Applicant v. Department of Labor, Occupational Safety and Health Administration, et al.

Supreme Court briefDec 28, 2021

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Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250,

21A251, 21A252, 21A258, 21A259, 21A260, and 21A267

In the Supreme Court of the United States

IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, INTERIM FINAL RULE: COVID-19

VACCINATION AND TESTING; EMERGENCY TEMPORARY

STANDARD 86 FED. REG. 61402, ISSUED ON NOVEMBER 4, 2021

On Applications for Stays of Injunctions Issued by the United States District Courts

for the Western District of Louisiana and Eastern District of Missouri Pending

Appeals to the United States Courts of Appeals for the Fifth and Eighth Circuits

MOTION OF LIBERTY, LIFE AND LAW FOUNDATION LEAVE TO FILE

ATTACHED BRIEF AS AMICUS CURIAE IN SUPPORT OF APPLICANTS

DEBORAH J. DEWART

Counsel of Record

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

December 30, 2021

MOTION FOR LEAVE TO FILE AN AMICUS BRIEF

Liberty, Life, and Law Foundation (“LLLF”) is a North Carolina tax-exempt

nonprofit organization established to provide scholarly analysis to preserve and

protect the liberties guaranteed to American citizens by the U.S. Constitution,

including free speech, religious liberty, association, and other liberties, including – in

this case – the fundamental right to make individual medical decisions free of

government coercion.

In view of this Court’s expedited consideration and the national significance of

the issues, LLLF has given notice of its intent to file and requested consent from

Petitioners’ counsel for Docket Nos. 21A243, 21A244, 21A245, 21A246, 21A247,

21A248, 21A249, 21A250, 21A251, 21A252, 21A258, 21A259, 21A260, 21A267.

Counsel for 21A244 does not oppose, and all other Petitioners have consented.

Because of the numerous Petitioners and expedited timing, LLLF submits this

Motion with its amicus curiae brief.

LLLF’s brief will be an in-depth analysis of Jacobson v. Massachusetts, 197

U.S. 11 (1905). That case has been cited since the outset of the pandemic in connection

with various medical mandates, including some of the church closing cases considered

by this Court. See, e.g., South Bay United Pentecostal Church v. Newsom, 140 S. Ct.

1613 (2020); Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020); Roman

Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (Nov. 25, 2020). A closer look

reveals that Jacobson does not support the OSHA Mandate currently at issue—or

numerous other harsh medical mandates issued in the wake of COVID-19. Jacobson

did not assault the structure of the Constitution: Jacobson involved state action, not

federal; Jacobson involved the legislature branch, not executive. Jacobson recognized

the potential for government overreach and the necessity for medical exemptions to

the mandate. Jacobson foreshadowed the tiered constitutional scrutiny developed in

later cases by serving a compelling state interest through narrowly tailored means.

Jacobson’s vaccine mandate was based on a century of medical knowledge, not on a

vaccine developed at “warp speed” with no possibility to foresee all of the long-term

effects. Finally, the small financial penalty Jacobson imposed on non-compliant

persons pales in comparison to the loss of livelihood faced by Petitioners and their

employees.

It is possible this Court’s decision will be based on statutory grounds, but if it

does reach the constitutional questions, this detailed analysis of Jacobson will be

especially helpful.

To the extent that leave is required, the proposed amicus respectfully moves

for leave to file the attached brief on 8½- by 11-inch paper rather than in booklet

form, given the expedited briefing. Should the Clerk’s Office or the Court so require,

the proposed amicus commit to re-filing expeditiously in booklet format. See S. Ct.

Rule 21.2(c).

CONCLUSION

For the foregoing reasons, the proposed amicus curiae respectfully requests

that the Court grant leave to file the attached amicus brief.

Respectfully submitted,

DEBORAH J. DEWART

Counsel of Record

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... v

INTEREST OF AMICUS CURIAE ............................................................................... 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT ...................................... 1

II.

UNLIKE THE OSHA MANDATE, JACOBSON DID NOT VIOLATE THE

CONSTITUTION’S STRUCTURAL PROTECTIONS....................................... 3

Jacobson’s mandate was a law enacted by the state legislature. The

OSHA Mandate was crafted through unauthorized executive action .... 4

Jacobson involved action by a state government, based on a local

determination of necessity—not the federal government ....................... 6

Jacobson did not rely on an abuse of emergency government powers

................................................................................................................... 8

JACOBSON ANTICIPATED LATER LEGAL DEVELOPMENTS

PROTECTING FUNDAMENTAL RIGHTS AGAINST GOVERNMENT

INTRUSION ...................................................................................................... 10

Subsequent precedent in this Court confirms that bodily autonomy

is a fundamental right “deeply rooted” in America’s history and

traditions ................................................................................................ 11

Jacobson acknowledged the potential for government

overreach ...................................................................................... 15

Jacobson acknowledged the need for mandatory medical

exemptions in appropriate cases ................................................. 17

Jacobson foreshadowed the “compelling interest” standard later

developed in cases involving fundamental rights ................................. 17

Jacobson anticipated the “narrow tailoring” developed in later cases

................................................................................................................. 20

CONCLUSION............................................................................................................. 22

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

141 S. Ct. 2485 (2021) ............................................................................................... 4

BST Holdings, L.L.C. v. Occupational Safety & Health Admin.,

2021 U.S. App. LEXIS 33698 (5th Cir. 2021) ....................................... 1, 3, 8, 11, 20

Buck v. Bell,

274 U.S. 200 (1927) ................................................................................................. 16

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ....................................................................................... 4, 7, 8

Commonwealth v. Pear,

66 N.E. 719 (Mass. 1903) ........................................................................................ 22

Compagnie Francaise De Navigation A Vapeur v. Louisiana State Board of Health,

186 U.S. 380 (1902) ................................................................................................... 6

Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261 (1989) ......................................................................... 11, 12, 13, 14, 19

Doe v. Mills,

211 L. Ed. 2d 243 (2021).......................................................................................... 17

Downes v. Bidwell,

182 U. S. 244 (1901) ................................................................................................ 22

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) ................................................................................................. 19

Gibbons v. Ogden,

22 U.S. 1 (1824) ......................................................................................................... 6

Globe School District v. Board of Health of City of Globe,

179 P. 55 (Ariz. 1919) ............................................................................................ 4, 9

Griswold v. Connecticut,

381 U.S. 479 (1965) ................................................................................................. 14

Grutter v. Bollinger,

539 U.S. 306 (2003) ................................................................................................ 19

Hillsborough County v. Automated Medical Laboratories, Inc.,

471 U.S. 707 (1985) ................................................................................................... 6

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934) ................................................................................................... 5

Illinois State Bd. of Elections v. Socialist Workers Party,

440 U.S. 173 (1979) ................................................................................................. 21

In re Cincinnati Radiation Litig.,

874 F. Supp. 796 (S.D. Ohio 1995) .................................................................... 15, 20

In re Storar,

420 N.E.2d 64 (N.Y. 1982), cert. denied, 454 U.S. 858 (1981) ............................... 12

Jacobson v. Massachusetts,

197 U.S. 11 (1905) ............................................................................................passim

Korematsu v. United States,

323 U.S. 214 (1944) ................................................................................................... 9

Kusper v. Pontikes,

414 U.S. 51 (1973) ................................................................................................... 21

Marshall v. United States,

414 U.S. 417 (1974) ................................................................................................... 5

MCP No. 165 v. United States DOL,

2021 U.S. App. LEXIS 37024 (6th Cir. 2021) ........................................ 4, 7, 8, 9, 10

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ................................................................................................... 6

Midwest Inst. of Health, PLLC v. Governor of Mich. (In re Certified Questions from

the United States Dist. Court), 958 N.W.2d 1 (2020) ............................................... 9

Mills v. Rogers,

457 U.S. 291 (1982) ................................................................................................. 12

Mitchum v. Foster,

407 U.S. 225 (1972) ................................................................................................. 18

Mugler v. Kansas,

123 U.S. 623 (1887) ................................................................................................. 18

New York v. United States,

505 U.S. 144 (1992) ................................................................................................... 3

Palko v. Connecticut,

302 U.S. 319 (1937) ................................................................................................. 14

Railroad Company v. Husen,

95 U.S. 465 (1878) ................................................................................................... 15

Reno v. Flores,

507 U.S. 292 (1993) ................................................................................................. 20

Robinson v. Attorney General,

957 F.3d 1171 (11th Cir. 2020) ................................................................................. 2

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ....................................................................................... 5, 17, 23

San Antonio Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973) ..................................................................................................... 19

Schloendorff v. Society of New York Hospital,

105 N.E. 92 (N.Y. 1914) ........................................................................................... 12

Shelton v. Tucker,

364 U.S. 479 (1960) ................................................................................................. 21

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) ................................................................................................. 16

Snyder v. Massachusetts,

291 U.S. 97 (1934) ............................................................................................. 13, 14

South Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ......................................................................................... 6, 17

South Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) ................................................................................................. 5

Thorpe v. Rutland & B. R. Co.,

27 Vt. 140 (1855)........................................................................................................ 6

vii

Union P. R. Co. v. Botsford,

141 U.S. 250 (1891) ................................................................................................. 11

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ................................................................................................. 18

United States v. Morrison,

529 U.S. 598 (2000) ................................................................................................... 3

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................................................................... 4

Washington v. Glucksberg,

521 U.S. 702 (1997) ................................................................................................. 14

Washington v. Harper,

494 U.S. 210 (1990) ..................................................................................... 12, 13, 14

Wilson v. New,

243 U.S. 332 (1917) ................................................................................................... 8

Wisconsin, M. & P. R.R. Co. v. Jacobson,

179 U.S. 287 (1900) ................................................................................................. 15

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................................................................... 8, 9

Zablocki v. Redhail,

434 U.S. 374 (1978) ........................................................................................... 19, 20

Zucht v. King,

260 U.S. 174 (1922) ................................................................................................... 7

Constitutional Provisions

Art. I, § 1 ........................................................................................................................ 4

Other Authorities

54 Fed. Reg. 23,042 (May 30, 1989) ............................................................................ 11

54 Fed. Reg. 23,045 (May 30, 1989) ............................................................................ 11

viii

William M. Brooks, Reevaluating Substantive Due Process as a Source of

Protection for Psychiatric Patients to Refuse Drugs,

31 Ind. L. Rev. 937 (1998) ............................................................... 11, 12, 13, 18, 21

Kathy L. Cerminara, Cruzan’s Legacy in Autonomy, 73 SMU L. Rev. 27 (Winter

2020) ................................................................................................................... 12, 14

Daniel Farber, The Long Shadow of Jacobson v. Massachusetts: Public Health,

Fundamental Rights, and the Courts, 57 San Diego L. Rev. 833 (NovemberDecember 2020) ................................................................................... 1, 5, 18, 19, 20

Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 68 (1st ed. 2000)

.................................................................................................................................. 22

B. Jessie Hill, Article: The Constitutional Right to Make Medical Treatment

Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277

(December 2007) ................................................................................ 5, 11, 14, 15, 16

James G. Hodge, Jr. & Lawrence I. Gostin, School Vaccination Requirements:

Historical, Social and Legal Perspectives, 90 KY. L.J. 831 (2001) ........................ 19

W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts

§ 9 (5th ed. 1984) ..................................................................................................... 12

Jason Marisam, Local Governance and Pandemics: Lessons from the 1918 Flu,

85 U. Det. Mercy L. Rev. 347 (Spring 2008) ................................................... 4, 7, 16

Wendy E. Parmet, Rediscovering Jacobsen in the Era of Covid-19,

100 B.U. L. Rev. Online 117 (2020) .................................................... 2, 3, 10, 21, 22

Kellen Russoniello, Article: The End of Jacobson’s Spread: Five Arguments Why

an Anti-intoxicant Vaccine Would Be Unconstitutional, 43 Am. J. L. and Med.

57 (2017)................................................................................................... 2, 13, 18, 20

Antonin Scalia, Foreword: The Importance of Structure in Constitutional

Interpretation, 83 Notre Dame L. Rev. 1417 (2008) ................................................. 3

Lindsay F. Wiley and Stephen I. Vladeck, Coronavirus, Civil Liberties, and the

Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. F.

179 (July 2020) .................................................................................................passim

INTEREST OF AMICUS CURIAE 1

Liberty, Life and Law Foundation (“LLLF”), as amicus curiae, respectfully

urges this Court to reverse the Sixth Circuit decision.

LLLF is a North Carolina nonprofit corporation established to defend

constitutional liberties. LLLF is gravely concerned about the growing expansion of

government power. LLLF’s founder is the author of a book, Death of a Christian

Nation (2010) and many amicus curiae briefs in this Court and the federal circuits.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

The federal government has used a dubious “work-around” process to issue a

“sweeping pronouncement[] on [a] matter[] of public health affecting every member

of society in the profoundest of ways.” BST Holdings, L.L.C. v. Occupational Safety

& Health Admin., 2021 U.S. App. LEXIS 33698, *8 (5th Cir. 2021). The resulting

Mandate “purports to definitively resolve one of today’s most hotly debated political

issues.” Id. at 23. This massive overreach assaults the structure of the Constitution

and encroaches on treasured American liberties.

COVID-19 has “prompted public health mandates without precedent for at

least a century.” Daniel Farber, The Long Shadow of Jacobson v. Massachusetts:

Public Health, Fundamental Rights, and the Courts, 57 San Diego L. Rev. 833, 833

(November-December 2020). Officials often rely on “emergency” powers to issue

1 A Motion for Leave to File accompanies this brief. Amicus curiae certifies that no

counsel for a party authored this brief in whole or in part and no person or entity,

other than amicus, its members, or its counsel, has made a monetary contribution to

its preparation or submission.

mandates. Jacobson v. Massachusetts, decided over a century ago, is often cited to

justify this unprecedented expansion of government power. 197 U.S. 11 (1905). But

Jacobson “is not an absolute blank check for the exercise of governmental power.”

Robinson v. Attorney General, 957 F.3d 1171, 1179 (11th Cir. 2020). Jacobson does

not grant any level or branch of government carte blanche to issue medical mandates.

Jacobson respected separation of powers and federalism. Jacobson relied on a century

of medical knowledge to craft a narrowly tailored mandate to address a compelling

interest. And the penalty for violation—a small fine—pales in comparison to the lifealtering loss of livelihood facing Petitioners’ employees.

The judiciary is perhaps “the only institution . . . in any structural position to

push back against potential overreaching by the local, state, or federal political

branches.” Lindsay F. Wiley and Stephen I. Vladeck, Coronavirus, Civil Liberties,

and the Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev.

F. 179, 183 (July 2020). But courts reviewing COVID-related claims often “disregard[]

both the complexity and nuance of Justice Harlan’s opinion.” Wendy E. Parmet,

Rediscovering Jacobson in the Era of Covid-19, 100 B.U. L. Rev. Online 117, 129

(2020).

Prior to the pandemic, Jacobson was typically met with “unwavering

adherence.” Kellen Russoniello, Article: The End of Jacobson’s Spread: Five

Arguments Why an Anti-intoxicant Vaccine Would Be Unconstitutional, 43 Am. J. L.

and Med. 57, 83 (2017). But now, the sweeping mandates—lockdowns, masks,

distancing, vaccines—should alarm Americans and prompt courts to take a closer

look at Jacobson. That case did not give easy answers. While affirming the

government’s general authority to protect public health, this Court also warned that

“public health powers can be abused,” so courts “must be vigilant” and “alert to

pretext or abuse of power.” Parmet, Rediscovering Jacobson, 100 B.U. L. Rev. Online

at 132.

UNLIKE THE OSHA MANDATE, JACOBSON DID NOT VIOLATE THE

CONSTITUTION’S STRUCTURAL PROTECTIONS.

“Those who seek to protect individual liberty ignore threats to th[e]

constitutional structure at their peril.” Antonin Scalia, Foreword: The Importance of

Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1419 (2008).

The OSHA Mandate jeopardizes the Constitution’s structure. It is an executive

branch decree that evades the normal procedures followed by legislatures and

executive agencies. Jacobson, on the contrary, conformed to structural constitutional

requirements, including separation of powers and federalism. The American public is

best served by “maintaining our constitutional structure and maintaining the liberty

of individuals to make intensely personal decisions according to their own

convictions—even, or perhaps particularly, when those decisions frustrate

government officials.” BST, *26. “[T]he Framers crafted the federal system of

Government so that the people’s rights would be secured by the division of power.”

United States v. Morrison, 529 U.S. 598, 616 n.7 (2000); see also New York v. United

States, 505 U.S. 144, 181 (1992) (federal-state division of authority is “for the

protection of individuals . . . . [S]tate sovereignty is not just an end in itself.”).

Jacobson’s mandate was a law enacted by the state legislature.

The OSHA Mandate was crafted through unauthorized executive

action.

Legislative power belongs solely to the legislative branch—not the executive.

See, e.g., Art. I, § 1. This Court requires Congress to “speak clearly” to grant an agency

power to make decisions of “vast economic and political significance.” Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 324 (2014). See BST, *23. Congress must use “exceedingly

clear language if it wishes to significantly alter the balance between federal and state

power.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489

(2021) (quotation omitted) (emphasis added). See MCP No. 165 v. United States DOL,

2021 U.S. App. LEXIS 37024, *7 (6th Cir. 2021) (Sutton, J., dissenting from denial

of initial hearing en banc).

This is not the first time the executive branch has encroached on legislative

territory during a health crisis. The Arizona Supreme Court, considering a school

closing case during the Spanish influenza epidemic, “was troubled that the board of

health had gone beyond clear executive enforcement powers and exhibited legislative

tendencies.” Jason Marisam, Local Governance and Pandemics: Lessons from the

1918 Flu, 85 U. Det. Mercy L. Rev. 347, 364 (Spring 2008) (emphasis added); see Globe

School District v. Board of Health of City of Globe, 179 P. 55, 57 (Ariz. 1919)

(explaining that the board of health could not be granted legislative powers).

This Court has “a duty to defend the Constitution, and even a public health

emergency does not absolve [it] of that responsibility.” Calvary Chapel Dayton Valley

v. Sisolak, 140 S. Ct. 2603, 2604 (2020) (Alito, J., dissenting). “Jacobson didn’t seek

to depart from normal legal rules during a pandemic, and it supplies no precedent for

doing so. . . Jacobson hardly supports cutting the Constitution loose during a

pandemic.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020)

(Gorsuch, J., concurring). It is not easy to “balance the need for deference in an

emergency and the court’s duty to protect constitutional rights . . . neither giving the

government a blank check nor hamstringing its emergency response.” Farber, The

Long Shadow, 57 San Diego L. Rev. at 863. “[T]he Constitution . . . entrusts the

protection of the people’s rights to the Judiciary.” South Bay United Pentecostal

Church v. Newsom, 141 S. Ct. 716, 717 (2021) (Roberts, C.J., concurring). Courts must

be cautious “in areas fraught with medical and scientific uncertainties” and not

“rewrite legislation.” Marshall v. United States, 414 U.S. 417, 427 (1974). Courts

ordinarily “defer to legislative fact-finding” in keeping with the separation of powers

principle that “allocates to legislatures the fact-dependent task of determining social

policy.” B. Jessie Hill, Article: The Constitutional Right to Make Medical Treatment

Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277, 333 (December 2007). Here,

there is only rushed executive action—not legislation. This Court, as an “independent

judiciary,” should exercise its “unique role . . . to smoke out pretext for government

actions during an emergency.” Wiley, Coronavirus, Civil Liberties, 133 Harv. L. Rev.

F. at 194-195. “Emergency does not create power” but merely provides an occasion to

exercise pre-existing power. Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426

(1934).

Jacobson involved action by a state government, based on a

local determination of necessity—not the federal government.

Two centuries ago, then Chief Justice Marshall observed the power reserved

to the states to enact “health laws of every description.” Gibbons v. Ogden, 22 U.S. 1,

203 (1824). That understanding has stood the test of time. See, e.g., Thorpe v. Rutland

& B. R. Co., 27 Vt. 140, 149 (1855) (states legislate to protect “the lives, limbs, health,

comfort, and quiet of all persons”); Hillsborough Cnty., Fla. v. Automated Med. Lab’ys,

Inc., 471 U.S. 707, 719 (1985) (health is “primarily, and historically, a matter of local

concern”); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“states have exercised

their police powers to protect the health and safety of their citizens”). It is “beyond

question” that Congress has recognized, “from an early day,” the power of states to

enforce regulations for the health and safety of their own residents. Compagnie

Francaise De Navigation A Vapeur v. Louisiana State Board of Health, 186 U.S. 380,

387 (1902). In keeping with “both federalism concerns and the historic primacy of

state regulation of matters of health and safety,” even Congress does not normally

pre-empt state police power regulations. Medtronic, 518 U.S. at 485.

Jacobson echoed the prevailing understanding of the states’ role. 197 U.S. at

25-26 (“to mandate that a person receive a vaccine or undergo testing falls squarely

within the States’ police power”). “Our Constitution principally entrusts ‘the safety

and the health of the people’ to the politically accountable officials of the States ‘to

guard and protect.’” South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613

(2020) (Roberts, C.J., concurring), quoting Jacobson, 197 U. S. at 38. These matters

“do not ordinarily concern the National Government.” Id. The “police power of a State”

embraces “reasonable regulations established directly by legislative enactment” to

“protect the public health and the public safety.” Id. at 25. Despite the severity of the

smallpox outbreak, there was no attempt to undercut federalism.

“Under the Constitution, state and local governments, not the federal courts,

have the primary responsibility for addressing COVID-19 matters.” Calvary Chapel,

140 S. Ct. at 2614 (Gorsuch, J., dissenting) (emphasis added).

Not only was

Jacobson’s mandate a state level action—it was explicitly based on a local

determination of necessity. The Massachusetts legislature required vaccinations

“only when, in the opinion of the Board of Health, that was necessary for the public

health or the public safety. . . . a Board of Health, composed of persons residing in the

locality affected and appointed, presumably, because of their fitness to determine

such questions.” Jacobson, 197 U.S. at 27. When Spanish influenza hit the world in

1918, “localities were empowered (and expected) to respond to the flu,” although “the

states could limit and override that power.” Marisam, Lessons from the 1918 Flu, 85

U. Det. Mercy L. Rev. at 361. Courts have recognized a limited power for localities

and strictly construed the powers delegated to them. Id.

Jacobson is one of the only two cases where this Court has upheld a vaccine

mandate imposed on individuals. 2 Both arose from state action—not federal—and

acknowledged that this is a state matter. MCP, *23 (Sutton, J., dissenting from denial

of initial hearing en banc). “It’s worth remembering that the power of a federal agency

See Zucht v. King, 260 U.S. 174, 176 (1922) (upholding school requirement, noting

that “it is within the police power to provide for compulsory vaccination”).

to regulate is the power to preempt—to nullify the sovereign power of the States in

the area—which explains why 27 States oppose the emergency rule.” Id.

It is unlikely, under our constitutional structure, that even Congress would

have “authority under the Commerce Clause to impose, much less to delegate the

imposition of, a de facto national vaccine mandate upon the American public.” MCP,

*56 (Bush, J., dissenting). “The States . . . have an interest in seeing their

constitutionally reserved police power over public health policy defended from federal

overreach.” BST, *25.

Jacobson did not rely on an abuse of emergency government

powers.

It would be a “considerable stretch” to read Jacobson’s upholding of a “local

ordinance” as establishing a standard applicable to “statewide measures of indefinite

duration.” Calvary Chapel, 140 S. Ct. at 2608 (2020) (Alito, J., dissenting). However

serious COVID-19 may be, “a public health emergency does not give Governors and

other public officials carte blanche to disregard the Constitution for as long as the

medical problem persists.” Id. at 2605. Although an “emergency may afford a reason

for the exertion of a living power already enjoyed,” it cannot “call into life a power

which has never lived.” MCP, *71 (Bush, J., dissenting), quoting Wilson v. New, 243

U.S. 332, 348 (1917).

America’s Founders understood that emergencies “afford a ready pretext for

usurpation” of government powers that in turn “would tend to kindle emergencies.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J.,

concurring). In that case, “the executive branch claimed it needed to seize control of

the country’s steel mills as a necessary measure to avert a national catastrophe.”

MCP, *12 (Sutton, J., dissenting from denial of initial hearing en banc), citing

Youngstown, 343 U.S. at 582 (cleaned up). Judicial review guards against decisions

like Korematsu v. United States, 323 U.S. 214 (1944), where courts “sustain gross

violations of civil rights because they are either unwilling or unable to meaningfully

look behind the government’s purported claims of exigency.” Wiley, Coronavirus,

Civil Liberties, 133 Harv. Rev. F. at 183. If governments are only held to “modest

burdens of justification for incursions into our civil liberties during emergencies,” it

will be easier for them to “find pretexts for triggering such emergencies” and then

“use emergencies as pretexts for scaling back our rights.” Id. at 198.

The duration of the emergency is a critical consideration. In early 2020, “two

weeks to stop the spread” morphed into months of fluctuating restrictions, with

executive officials repeatedly extending emergency declarations. Concerns escalate

when a government official can declare open-ended emergencies. See, e.g., Midwest

Inst. of Health, PLLC v. Governor of Mich. (In re Certified Questions from the United

States Dist. Court), 958 N.W.2d 1 (2020) (recognizing statutory and constitutional

limits on the governor’s authority to renew or indefinitely extend a declaration of

emergency); Globe, 179 P. at 61 (explaining that board of health order closing schools

was valid “during the existence of said disease in epidemic form . . . and no longer”).

Jacobson does not demand that “lower courts have no choice but to apply more

deferential review to governmental restrictions during public health crises.” Wiley,

Coronavirus, Civil Liberties, 133 Harv. Rev. F. at 190. Instead, it foreshadows later

cases where fundamental rights are balanced against compelling state interests and

solutions are narrowly tailored to minimize the restraint on individual liberty.

II.

JACOBSON ANTICIPATED LATER LEGAL DEVELOPMENTS

PROTECTING FUNDAMENTAL RIGHTS AGAINST GOVERNMENT

INTRUSION.

“A national vaccinate-or-test mandate . . . is unprecedented, . . ., presumably

because the intrusion on individual liberty is serious.” MCP, *21 (Sutton, J.,

dissenting from denial of initial hearing en banc) (emphasis added). Those who

advocate lifting the Fifth Circuit stay “must come to grips with each of the statutory

imperatives, each of the clear statement requirements, and all of the constitutional

claims.” Id., *41-42 (emphasis added). Those “constitutional claims” include the longrecognized right to bodily autonomy.

Jacobson was written long before courts began to apply the now familiar tiered

scrutiny of fundamental rights—indeed, “Jacobson predated the entire modern

canonization of constitutional scrutiny.” Wiley, Coronavirus, Civil Liberties, 133

Harv. L. Rev. F. at 193. While endorsing government protection for public health, this

Court also “offered hints of judicially protected limitations on public health powers”

and even “endorsed a relatively modern vision of individual liberty” that gave courts

“a basis for limiting laws that infringe upon bodily integrity.” Parmet, Rediscovering

Jacobson, 100 B.U. L. Rev. Online at 126. The Court “looked back to its nineteenthcentury

police

power jurisprudence”

and simultaneously “forward to

the

fundamental-rights jurisprudence that would develop in the mid-twentieth century.”

Id. Jacobson did not offer simple answers or easy tests but instead foreshadowed the

balancing that would characterize future court decisions.

Subsequent precedent in this Court confirmed that bodily

autonomy is a fundamental right “deeply rooted” in America’s

history and traditions.

Even OSHA acknowledges that “[h]ealth in general is an intensely personal

matter….” (54 Fed. Reg. 23,042 (May 30, 1989)), and because “vaccine is an invasive

procedure . . . OSHA prefers to encourage rather than try to force by governmental

coercion, employee cooperation in [a] vaccination program” (54 Fed. Reg. 23,045 (May

30, 1989)). Unlike the small financial penalty assessed in Jacobson, “the Mandate

threatens to substantially burden the liberty interests of reluctant individual

recipients put to a choice between their job(s) and their jab(s).” BST, *24.

Jacobson was one of earliest confrontations between “the assertion of an

individual right to resist a state-mandated medical intervention” and a state claim

that public health warranted the mandate. Hill, A Tale of Two Doctrines, 86 Tex. L.

Rev. at 296. But even at this early point, “the extent to which Jacobson considers and

validates personal autonomy interests regarding medical treatment is surprising.”

Id. This Court should not overlook this aspect of Jacobson.

Bodily integrity is “one of the oldest fundamental rights recognized by the law.”

Hill, A Tale of Two Doctrines, 86 Tex. L. Rev. at 304. Even before Jacobson, this Court

recognized that no right is “more sacred” or “more carefully guarded” than “the right

of every individual to the possession and control of his own person, free from all

restraint or interference of others, unless by clear and unquestionable authority of

law.” Union P. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). Botsford’s concept of bodily

integrity “served as a framework for the informed consent doctrine” articulated a

century later in Cruzan. William M. Brooks, Reevaluating Substantive Due Process

as a Source of Protection for Psychiatric Patients to Refuse Drugs, 31 Ind. L. Rev. 937,

989 (1998).

American law has long recognized the right to informed consent that is

“generally required for medical treatment.” Cruzan v. Dir., Mo. Dep’t of Health, 497

U.S. 261, 269 (1989). Cruzan “effectively enshrined personal autonomy in a medical

setting as a constitutionally protected liberty interest,” with the majority assuming

it while dissenting Justices “explicitly found that the right existed.” Kathy L.

Cerminara, Cruzan’s Legacy in Autonomy, 73 SMU L. Rev. 27, 27 (Winter 2020). As

then-Judge Cardozo expressed it, every competent adult has “a right to determine

what shall be done with his own body; and a surgeon who performs an operation

without his patient’s consent commits an assault, for which he is liable in damages.”

Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914). This tracks

common law, where “even the touching of one person by another without consent and

without legal justification was a battery.” Id., citing W. Keeton, D. Dobbs, R. Keeton,

& D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984).

The logical corollary of informed is “the right of a competent individual to

refuse medical treatment.” Cruzan, 497 U.S. at 277; see also In re Storar, 420 N.E.2d

64, 70 (N.Y. 1982), cert. denied, 454 U.S. 858 (1981) (basing the right to refuse

treatment on doctrine of informed consent). “The right to refuse any medical

treatment emerged from the doctrines of trespass and battery, . . . applied to

unauthorized touchings by a physician.” Mills v. Rogers, 457 U.S. 291, 294, n.4 (1982).

During the same term as Cruzan, this Court concluded in Washington v. Harper that

“[t]he forcible injection of medication into a nonconsenting person’s body represents

a substantial interference with that person’s liberty.” 494 U.S. 210, 229 (1990).

Washington v. Harper is perhaps the case “most pertinent to vaccination mandates.”

Russoniello, The End of Jacobson’s Spread, 43 Am. J. L. and Med. at 87. Coerced

vaccination, like the injection of psychotropic drugs, is “an intrusive treatment . . . a

significant infringement on bodily autonomy, one of this Nation’s most cherished

rights under the Constitution.” Brooks, Reevaluating Substantive Due Process, 31

Ind. L. Rev. at 945.

Cruzan’s affirmation of bodily integrity was not confined to the majority.

Justice O’Connor’s concurrence noted that “incursions into the body” are “repugnant

to the interests protected by the Due Process Clause” because “our notions of liberty

are inextricably entwined with our idea of physical freedom and self-determination.”

497 U.S. at 287 (O’Connor, J., concurring). Such coercion “burdens the patient’s

liberty, dignity, and freedom to determine the course of her own treatment.” Id. at

289. The conclusion is inescapable—”the liberty guaranteed by the Due Process

Clause must protect, if it protects anything, an individual’s deeply personal decision

to reject medical treatment.” Id. at 289.

The Cruzan dissents agreed that “freedom from unwanted medical attention is

unquestionably among those principles ‘so rooted in the traditions and conscience of

our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U.S. 97,

105 (1934).” Cruzan, 497 U.S. at 305 (Brennan, J., dissenting). Justice Stevens was

equally adamant: “The right to be free from medical attention without consent, to

determine what shall be done with one’s own body, is deeply rooted in this Nation’s

traditions, as the majority acknowledges.” Cruzan, 497 U.S. at 342 (Stevens, J.,

dissenting). The right is “firmly entrenched in American tort law” and “securely

grounded in the earliest common law.” Id.

Building on Cruzan, Washington v. Harper, and other precedent, this Court

confirmed the right to bodily integrity in Washington v. Glucksberg although

concluding that assisted suicide is not a “fundamental right.” 521 U.S. 702 (1997).

Glucksberg echoed the common-law doctrine of informed consent utilized by the

Cruzan majority and Justice O’Connor’s concurrence. Cerminara, Cruzan’s Legacy,

73 SMU L. Rev. at 28. Glucksberg highlighted the now-familiar terminology that

defines “fundamental rights,” combining key phrases from Snyder v. Massachusetts,

291 U.S. at 105 (“so rooted in the traditions and conscience of our people as to be

ranked as fundamental”) and Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)

(“implicit in the concept of ordered liberty,” such that “neither liberty nor justice

would exist if they were sacrificed”). 521 U.S. at 721.

There is unquestionably a tension between cases emphasizing public health

and those considering bodily autonomy. In public health cases, sick persons are

viewed “not so much as autonomous decision makers” but “threats to others that can

and indeed must be controlled.” Hill, A Tale of Two Doctrines, 86 Tex. L. Rev. at 295.

During the COVID-19 era, even asymptomatic persons are seen as “threats” if they

decline mandatory masks and vaccines. Autonomy cases, beginning with Griswold v.

Connecticut, 381 U.S. 479 (1965), “treat[] the right to choose appropriate medical

treatment as an aspect of the rights to bodily integrity and decisional autonomy.”

Hill, A Tale of Two Doctrines, 86 Tex. L. Rev. at 295. Resolving the tension demands

a balancing of the respective interests, and when a fundamental liberty is at stake,

“the government’s burden [is] to provide more than minimal justification for its

action.” In re Cincinnati Radiation Litig., 874 F. Supp. 796, 813 (S.D. Ohio 1995).

Jacobson acknowledged the potential for government

overreach.

Jacobson narrowly defined its scope according to the “necessities of the case”—

”smallpox being prevalent and increasing” in the area subject to the mandate.

Jacobson, 197 U.S. at 28. This Court explicitly recognized that such a mandate “might

be exercised in particular circumstances and in reference to particular persons in

such an arbitrary, unreasonable manner, or might go so far beyond what was

reasonably required for the safety of the public” so as to “authorize or compel the

courts to interfere for the protection of such persons.” Id., citing Wisconsin, M. & P.

R.R. Co. v. Jacobson, 179 U.S. 287, 301 (1900). In Railroad Company v. Husen, 95

U.S. 465, 471-473 (1878) this Court affirmed a state’s right to pass “sanitary laws”

preventing those suffering from contagious diseases from entering its borders—but

the laws at issue “went beyond the necessities of the case” and “violated rights

secured by the Constitution,” so they were held invalid. Jacobson, 197 U.S. at 28. In

sum, Jacobson acknowledged that state police powers “may be exerted in such

circumstances or by regulations so arbitrary and oppressive in particular cases as to

justify the interference of the courts to prevent wrong and oppression.” Id. at 38.

Examples of overreach are seen in the years following Jacobson. In the wake

of the Spanish flu epidemic, Arizona adopted a “public health elitism” model in

response to the crisis. Marisam, Lessons from the 1918 Flu, 85 U. Det. Mercy L. Rev.

at 348 (Spring 2008). Under that model, the public defers to experts while the

emergency lasts, and law enforcement plays a key role. Id. Arizona’s “extreme and

committed enforcement” of its public health measures—similar to the COVID-19

response in some areas—”paints a vivid picture of the potential for abuse and the

problems of relying on coercion instead of public cooperation.” Id. at 362. Deputized

citizens demonstrated “patriotic zeal” as they arrested persons who coughed without

covering their mouths and stopped traffic to intimidate those who were not traveling

for business. Id.

Buck v. Bell, twenty years after Jacobson, is a glaring example of overreach:

“The principle that sustains compulsory vaccination is broad enough to cover cutting

the Fallopian tubes . . . . Three generations of imbeciles are enough.” Buck v. Bell,

274 U.S. 200, 207 (1927) (upholding coerced sterilization). This Court “applied

Jacobson’s hallmark deference to legislatures” but “ignore[ed] Jacobson’s suggestion

of an individual right to protect one’s own health.” Hill, A Tale of Two Doctrines, 86

Tex. L. Rev. at 300. Only fifteen years later, this Court struck down a sterilization

mandate for criminals, highlighting a schism between the Court’s “autonomy” cases

and its “public health” cases. Id., citing Skinner v. Oklahoma ex rel. Williamson, 316

U.S. 535 (1942). More recent decisions have developed tests to balance public health

(compelling state interests) with fundamental rights (autonomy).

Jacobson acknowledged the need for mandatory medical

exemptions in appropriate cases.

In Jacobson, the petitioner failed to provide proof of his adverse childhood

reaction to a vaccine—his reason for objecting to the mandate. Jacobson, 197 U.S. at

36-37. But this Court recognized that a person “embraced by the mere words” of the

law might have a medical condition that would render the vaccination “cruel and

inhuman.” Id. at 38-39. In that case, courts would “be competent to interfere and

protect the health and life of the individual concerned.” Id. at 39. This Court

“presumed that the legislature intended exceptions to its language which would avoid

results of that character.” Id.

Jacobson foreshadowed the “compelling interest” standard

later developed in cases involving fundamental rights.

Each state “undoubtedly has a compelling interest in combating the spread of

COVID-19 and protecting the health of its citizens.” South Bay, 140 S. Ct. at 1614

(Kavanaugh, J., dissenting). “Stemming the spread of COVID-19” qualifies as “a

compelling interest.” Roman Catholic Diocese, 141 S. Ct. at 67 (per curiam). But “this

interest cannot qualify as [compelling] forever. . . . [C]ivil liberties face grave risks

when governments proclaim indefinite states of emergency.” Doe v. Mills, 211 L. Ed.

2d 243, 246 (2021) (Gorsuch, J., dissenting).

Jacobson did not suspend consideration of the claimant’s fundamental rights,

but instead “adopted a quintessential balancing test.” Wiley, Coronavirus, Civil

Liberties, 133 Harv. L. Rev. F. at 190. Despite what “some contemporary courts have

concluded,” Jacobson cannot fairly be read to establish a weak standard of review. Id.

at 191. This Court rejected the argument that compulsory vaccination is inevitably

“unreasonable, arbitrary and oppressive” (197 U.S. at 26), “however widespread the

epidemic” (id. at 37)—but also acknowledged its duty to invalidate a statute that had

“no real or substantial relation” to public health and safety, or that was “beyond all

question, a plain, palpable invasion of rights secured by fundamental law.” Id. at 31,

citing Mugler v. Kansas, 123 U.S. 623, 661 (1887).

Subsequent cases developed standards of “proportionality and balancing,”

generally “permit[ting] greater incursions into civil liberties in times of greater

communal need.” Wiley, Coronavirus, Civil Liberties, 133 Harv. L. Rev. F. at 182-183.

This Court began to apply a “more searching judicial inquiry” for liberties within the

Bill of Rights. Russoniello, The End of Jacobson’s Spread, 43 Am. J. L. and Med. at

86; United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (suggesting

a “narrower scope for . . . the presumption of constitutionality” in such cases).

Although the general standard for public health regulations “shifted from

reasonableness to the very lenient rational basis,” courts “began to apply a higher

level of scrutiny to government actions violating fundamental rights.” Farber, The

Long Shadow, 57 San Diego L. Rev. at 844. The federal government’s role “as a

guarantor of basic federal rights against state power was clearly established” after

the Fourteenth Amendment was passed. Mitchum v. Foster, 407 U.S. 225, 239 (1972).

This followed the U.S. Constitution’s historical role “as a shield against intrusive

governmental behavior and a sword to uphold individual liberty.” Brooks,

Reevaluating Substantive Due Process, 31 Ind. L. Rev. at 940. A law that infringes on

a fundamental liberty must be narrowly tailored to further a compelling state

interest. See, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 310 (2013); Grutter

v. Bollinger, 539 U.S. 306, 326 (2003) (racial equality); Zablocki v. Redhail, 434 U.S.

374, 388 (1978) (“When a statutory classification significantly interferes with the

exercise of a fundamental right, it cannot be upheld unless it is supported by

sufficiently important state interests and is closely tailored to effectuate only those

interests.”); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973) (under strict

scrutiny, the state “is not entitled to the usual presumption of validity”).

Cruzan affirmed that a competent person’s “constitutionally protected liberty

interest” in “refusing unwanted medical treatment” could be inferred from Jacobson

and other prior decisions (497 U.S. at 278), citing Jacobson’s balancing “an

individual’s liberty interest in declining an unwanted smallpox vaccine against the

State’s interest in preventing disease.” 497 U.S. at 279. See Farber, The Long

Shadow, 57 San Diego L. Rev. at 846 (noting Cruzan’s reliance on Jacobson to infer

a “right to refuse medical treatment at the end of life”).

Professors Hodge and Gostin derived a helpful four-factor test from Jacobson

to evaluate the constitutionality of a vaccine mandate. James G. Hodge, Jr. &

Lawrence I. Gostin, School Vaccination Requirements: Historical, Social and Legal

Perspectives, 90 KY. L.J. 831, 856 (2001). First, the mandate cannot exceed what is

reasonably required to respond to a public health necessity. Second, the state must

use reasonable means that have a “real or substantial relation” to the danger

targeted. Third, the mandate must be a proportionate response that is not arbitrary

or unduly onerous. Finally, the vaccine must not cause harm—implying that medical

exemptions must be available. Russoniello, The End of Jacobson’s Spread, 43 Am. J.

L. and Med. at 103; see In re Cincinnati Radiation Litig., 874 F. Supp. 796, 813 (S.D.

Ohio 1995) (“bodily invasions often cannot be readily remedied after the fact through

damage awards”).

These factors track the general tests for fundamental constitutional rights—

compelling state interest, narrow tailoring, least restrictive means. When “the

fundamental right to refuse unwanted medical treatment” is at stake, “a court should

apply strict scrutiny . . . .” Russoniello, The End of Jacobson’s Spread, 43 Am. J. L.

and Med. 57 at 60.

Jacobson anticipated the “narrow tailoring” developed in later

cases.

The characterization of bodily autonomy as a fundamental right is significant.

The “substantive component” to “due process of law” “forbids the government to

infringe certain ‘fundamental’ liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to serve a compelling state

interest.” Reno v. Flores, 507 U.S. 292, 301-302 (1993); see also Zablocki, 434 U.S. at

388 (restriction must be “closely tailored to effectuate . . . sufficiently important state

interests”). Jacobson paved the way with a narrowly tailored, “delicately handled

scalpel” in contrast to the “one-size-fits-all sledgehammer” OSHA attempts to impose

on millions of Americans. BST, *10.

In Jacobson, “there was no dispute that smallpox was a dire threat to the

community” necessitating drastic measures. Farber, The Long Shadow, 57 San Diego

L. Rev. at 841. This Court “permitted the state to require vaccinations because

smallpox threatened life,” not because the treatment might be beneficial. Brooks,

Reevaluating Substantive Due Process, 31 Ind. L. Rev. at 1004. Jacobson reasoned

there was a “paramount necessity” for the community to act in “self-defense” to

protect against the epidemic. 197 U.S. at 27. When the Board of Health adopted the

mandate, smallpox was “prevalent to some extent in the city of Cambridge and the

disease was increasing.” Id. The mandate was confined to the well-defined geographic

area where the disease was present and spreading. This Court compared the situation

to one where a citizen returning from a voyage must be quarantined because of

exposure to yellow fever or cholera, but only until “the danger of the spread of the

disease among the community at large has disappeared.” Id. at 29.

Jacobson’s narrow mandate—unlike OSHA’s one-size-fits-all sledgehammer—

foreshadows the “least intrusive means” test in Shelton v. Tucker, i.e., “even though

the governmental purpose be legitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fundamental personal liberties when the end

can be more narrowly achieved.” 364 U.S. 479, 488 (1960). Even to pursue a legitimate

interest, “a State may not choose means that unnecessarily restrict constitutionally

protected liberty.” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S.

173, 185 (1979), quoting Kusper v. Pontikes, 414 U.S. 51, 58-59 (1973). States must

“adopt the least drastic means” to achieve their interests. Illinois State Bd., 440 U.S.

at 185. Jacobson can be understood to require state laws to conform to “public health

necessity, reasonable means, proportionality, and harm avoidance.” Parmet,

Rediscovering Jacobson, 100 B.U. L. Rev. Online at 128, quoting Lawrence O. Gostin,

Public Health Law: Power, Duty, Restraint 68 (1st ed. 2000).

Jacobson took judicial notice of “nearly a century” of medical authority

determining that the smallpox vaccine was safe and effective—unlike the rapidly

developed COVID-19 vaccine. COVID-19 has generated a multitude of conflicting

opinions, even among medical professionals, and vaccines were developed at “warp

speed” using new technology. Many Americans are understandably hesitant to

assume the potential risks of what seems to be a broad sweeping, coercive medical

experiment. This is nothing like Jacobson. In the wake of Boston’s smallpox outbreak,

both the Supreme Judicial Court of Massachusetts and this Court noted that “for

nearly a century most of the members of the medical profession have regarded

vaccination, repeated after intervals, as a preventive of smallpox.” Jacobson, 197 U.S.

at 23-24; see Commonwealth v. Pear, 66 N.E. 719, 721 (Mass. 1903). Medical experts

had generally considered the “risk of injury . . . too small to be seriously weighed as

against the benefits.” Jacobson, 197 U.S. at 24. “The regulation was not simply

reasonable because it aimed to prevent a deadly epidemic but because it was based

on public health knowledge” available at the time. Parmet, Rediscovering Jacobson,

100 B.U. L. Rev. Online at 125.

CONCLUSION

Obedience to the Constitution does not hinge on “the circumstances of a

particular crisis . . . . The People have decreed that it shall be the supreme law of the

land at all times.” Downes v. Bidwell, 182 U. S. 244, 384 (1901) (Harlan, J.,

dissenting). A century later, even with the threat of America’s worst pandemic, “we

may not shelter in place when the Constitution is under attack.” Roman Catholic

Diocese, 141 S. Ct. at 71 (Gorsuch, J., concurring).

The Sixth Circuit ruling should be overruled and the stay should be reinstated.

Respectfully submitted,

DEBORAH J. DEWART

Counsel of Record

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.