A panel of the Fifth Circuit has upheld the TX governor's order designating medical abortions as non-essential in a decision that relies heavily on Jacobson v. Massachusetts, a foundational Supreme Court case on public health emergency powers. washingtonpost.com/health/court-a…
The majority: “[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Jacobson.
"That settled rule allows the state to restrict e.g., the right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception."
5th Cir. majority also cites Hickox v. Christie, (upholding quarantine imposed on a nurse who treated Ebola patients in Sierra Leone), for the proposition that Jacobson's (1905) deferential standard of judicial review remains good law even though it pre-dates the Civil Rights Era
Dissent offers a different view of Jacobson: citing it for the proposition that "individual rights are not gutted during a crisis"
From Jacobson (in dissent):
Courts have a duty to review a state’s exercise of their police power where the state’s action (1) goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution,”...
Courts have a duty to review a state’s exercise of their police power where the state’s action (1) goes “beyond the necessity of the case, and, under the guise of exerting a police power . . . violate[s] rights secured by the Constitution,”...
... (2) “has no real or substantial relation to” “protect[ing] the public health, the public morals, or the public safety,” or (3) “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”
Jacobson "clearly anticipated that courts would exercise oversight over a state’s decision to restrict personal liberties during emergencies." It "merely acknowledged that what is reasonable during an emergency is different from what is reasonable under normal circumstances"
Dissent accuses majority of ignoring "the courts’ ability to protect citizens’ constitutional rights when states attempt to unjustifiably seize and wield power in the name of the health and safety."
Dissent: "In a time where panic & fear already consume our daily lives, the majority inflicts further panic & fear on women in TX by depriving them of const'l rights, exposing them to risks of continuing unwanted pregnancy, as well & risks of travelling to other states for care."
Here's the decision: documentcloud.org/documents/6827…
Treating Jacobson (1905) as a definitive statement by the SCt re: the standard of judicial review applicable in emergencies ignores that it was a very early attempt to articulate how the courts would protect 14th A rights under any circumstances.
The majority relies on Jacobson to ignore all intervening precedents, including re: right to choose.
Ignoring Supreme Court precedents after Jacobson might be understandable when reviewing measures the Supreme Court hasn’t spoken to more directly in the meantime (eg compulsory vaccination or even quarantine)
But for the Abbott majority to argue that if SCOTUS meant for there to be an abortion exception to Jacobson’s definitive (and uniform?) standard for judicial review of all emergency measures that infringe on civil liberties, it would’ve said so strikes me as disingenuous.
Does Jacobson wipe out all tiers of judicial scrutiny and replace them with a new (actually very old) test that applies only in emergencies? Are all infringements of civil liberties/rights magically equalized in an emergency?
I mean, I guess it has the advantage of being a standard of review that very few modern lawyers understand. And between “necessity of the case” and “not arbitrary or unreasonable,” the opinion has a little something in it for everyone.
It’s widely understood that Jacobson’s use of “necessity” didn’t *really* mean necessity in the way we think of when courts apply strict scrutiny, though.
Also... to pick back up on the 5th circuit's citation of Hickox v. Christie for the proposition that Jacobson is the definitive standard for a public health emergency, even though it pre-dates modern 14th amendment jurisprudence...
In Hickox, the court "assumed w/o deciding" that the availability of a less restrictive alternative (in the case of quarantine, and individualized assessment of the risk posed to others) would defeat an emergency order, which is inconsistent w/ 5th circuit's interpretation.
This is the approach a lot of lower courts have taken to the question of whether Jacobson's weird, antiquated standard of review still applies even to compulsory vaccination mandates (which were the subject of Jacobson itself).
Courts typically assume w/o deciding that strict scrutiny would apply under modern 14th A jurisprudence, then determine that the public health measure would satisfy strict scrutiny.
