A tweet falsely claims that COVID-19 restrictions in New Jersey are unconstitutional.

A public health mandate is a balancing of two interests: a restriction on a person’s civil liberties and a health situation that endangers the lives of the rest of society. Civil liberties at their most basic are personal freedoms and the ability to avoid governmental intrusion on those freedoms.  Mandates put restraints on those civil liberties. The question then becomes what is a restraint that is acceptable and what is a restraint that is unacceptable. Examples of mandates during the COVID-19 pandemic deemed legally acceptable include lockdowns, mask requirements under certain conditions, and shutdowns of venues. 

The reasons for such measures, which legal scholars would refer to as a restraint or restriction on individuals’ civil liberties, are grounded in the responsibility of the government to protect those same individuals who believe their civil liberties are being restricted, and society as a whole, from harm, in this case, COVID-19. 

According to research by Xiaoshuang Liu et. al., in the article “Differential impact of non-pharmaceutical public health interventions on COVID-19 epidemics in the United States,” interventions such as mask mandates, gathering bans, and non-essential business closures, while having a restriction on civil liberties, safeguarded the public and their health. The study looked at nine different interventions in terms of their capacity to control COVID-19. Stay at home orders were the most effective at controlling COVID-19. Restricting gathering sizes, closing non-essential businesses, and face masks were also found by the study researchers to be effective in reducing COVID-19 rates. The researchers concluded that such restrictions “played critical roles on epidemic control in the U.S. in the past several months.”

“the liberty secured by the Constitution of the United States 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.”

United States Supreme Court

One of the most important legal cases regarding public health and civil liberties is Jacobson v. Massachusetts 197, U.S. 11 (1905). On July 17, 1902, the board of health of Cambridge, Massachusetts set a deadline for all individuals residing in the city to either be vaccinated or re-vaccinated for the disease of smallpox. Those who did not comply were sentenced to pay a fine of $5. The plaintiff in the case, Henning Jacobson, refused to get vaccinated and was forced to pay a $5 fine. The court in the Jacobson case focused on several issues, including the role of the government at the local level to safeguard the public, and requirements that the government can put on individuals to keep everyone safe, but what we have not seen is forced vaccinations of individuals by the government. 

According to the Jacobson court, “the liberty secured by the Constitution of the United States 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.”

In fact, government mandates around public health are deeply rooted in American history. Phillips v. City of New York, 775 F. 3d 538 (2015) upheld a law requiring that all children going to school in the City of New York are required to be vaccinated in order to attend public school unless they meet a religious exemption. ​​The plaintiffs in the case argued that New York’s requirement that all children be vaccinated in order to attend public school was unconstitutional. Under the New York Public Health Law section 2164(7)(a) “[n]o principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days” without evidence that the child has been immunized. The court in the case concluded that the New York Public Health Law was constitutional, the statute permissible, and the safeguards of protecting the public an important state interest.  

Ultimately, while mandates can be a tool in ensuring compliance with necessary public health measures, according to researcher and author Anudeep Pant in an interview with the AmNews, “[t]here are several ways to combat vaccine hesitancy. Since we know some of the measures of vaccine hesitancy, these data points should be utilized to develop pointed interventions. For example, public health officials can get ahead of false narratives by monitoring misinformation that is circulating in their communities and developing education campaigns tailored to fill knowledge gaps and clarify misconceptions. Since different communities will have different reasons for refusing vaccination, specialized public health campaigns are key, this is no one-size-fits-all solution.”

“Lastly, partnerships between local trusted leaders, faith-based leaders, local politicians, healthcare workers, social workers, culture bearers, scientists…can be a powerful tool when everyone is working toward the same goal. The background and expertise of each stakeholder will be diverse so complementary knowledge, skills, and experience can create grassroots movements that can be critical in tipping the scale,” he added.

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