Are COVID emergency orders restricting business openings Constitutional?

The Supreme Court has held that states retain broad authority to act to protect the public from urgent health threats, such as epidemic disease.  In fact, the touchstone 1905 Supreme Court ruling establishing the Constitutional parameters for government action in response to epidemics originated right here in Massachusetts, in a case involving a pastor who challenged the Town of Cambridge’s requirement during a 1902 outbreak that adults be vaccinated against smallpox or pay a $5 fine (about $151 in 2021 dollars).  In that case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court laid out the principle that courts should generally defer to the legislative and executive branches’ determination of the medical necessity, scientific basis, and urgency of the epidemic response measures.  However, courts should intervene if the law was “arbitrary [and] unreasonable,” “far beyond what was reasonably required for the safety of the public,” or had “no real or substantial relation to [ensuring the public health], or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”  Id. at 28, 31.  This is a demanding test to satisfy to declare pandemic restrictions unconstitutional and it remains the guiding precedent.  Even 115 years later, it was Jacobson that Chief Justice John Roberts cited in the 2020 case the Supreme Court heard challenging state restrictions on gatherings and enterprises, South Bay United Pentecostal Church v. Newsome, 140 S. Ct. 1613 (2020), and it was Jacobson that led the Court to decline to intervene.

Nevertheless, Jacobson still requires that the state show a rational basis for its epidemic response and that the law not be an unmistakable violation of a Constitutional right.  Although “rational basis” is not a greatly demanding standard for the government to defend, the distinctions cannot be arbitrary or irrational; COVID-related restrictions on businesses must be based on objective, factually supported, or measurable criteria relevant to public health.  The Fourteenth Amendment forbids states to deny any person “the equal protection of the laws.”  A plaintiff can show a violation of her equal protection Constitutional rights if she can show she was “intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.”  Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).  She does not have to show bad motive or malice.  Similar enterprises should be treated similarly by state COVID restrictions, unless there is a rational basis (found in medical or scientific information) to believe they would have different public health impacts.  When federal courts have upheld challenges to state COVID measures, they have usually found equal protection violations; e.g., County of Butler, et al., v. Wolf, et al., Civ. Action No. 2:20-CV-677 (W D. Penn., September 14, 2020) (business closure classifications not based on objective criteria); DiMartile et al. v Cuomo, et al., Civil Action No. 1:20-CV-0859 (N.D. N.Y., August 7, 2020) (same venues treated differently when acting as wedding halls than when as restaurants).  So, to the extent that Massachusetts COVID Emergency Orders have a rational basis in medical information and treat similar businesses equally—or, if they do not, that they still have a clear rational basis for doing so, based on medical or scientific evidence—the Orders would likely be found Constitutionally valid.

P.R. Goldstone