Individual Rights and the Public’s Health: Constitutional, Ethical, and Political Aspects of COVID-19 Measures and Their Enforcement
February 24, 2021
The COVID-19 pandemic has brought the tension between individual rights and the public good to the forefront of the national discourse. Many pandemic response measures—such as stay-at-home orders, mandatory business closures or restrictions, and mask mandates—have evoked vocal opposition by individuals who feel these measures infringe on their freedom.
While evidence suggests that these types of public health actions are effective in reducing the COVID-19 infection rate, they do constrain individual autonomy. Nevertheless, such actions are, generally speaking, constitutional under existing U.S. Supreme Court precedent. They are also ethical when implemented properly (e.g., including, where necessary, complementary measures to ensure equity and justice).
Even though law and ethics can accommodate the innate tension between individual rights and public needs, our current political climate may not. Polarized political rhetoric (often shrouded in legal language) and the actions it inspires present a far more significant barrier than law or ethics to the success of evidence-based public health measures that implicate individual rights. The COVID-19 pandemic has demonstrated that although public health officials must ensure their actions are constitutional and ethical, this is not a guarantee of success.
The Fourteenth Amendment of the U.S. Constitution protects individuals’ right to liberty, but American jurisprudence has long maintained that this right is not absolute. The U.S. Supreme Court has recognized that states have “police powers,” which enable them to act to promote public health and safety; however, states must act within the strictures of due process if their actions constrain individual liberty. Jacobson v. Massachusetts, the seminal case on states’ public health authority, provides guidance for determining when and which public health interventions are appropriate. It states that individual rights must sometimes give way to the protection of public health in the face of “great dangers” if the state action (1) has a “real or substantial relation” to protecting public health and (2) is not, “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Lawrence O. Gostin, professor and director of the O’Neill Institute for National and Global Health Law at Georgetown University, notes that Jacobson established four standards that must be met for a governmental public health measure to permissibly restrict individual rights:
- there must be necessity for the government action,
- the action must employ reasonable means,
- it must be proportional, and
- it should avoid harm to individuals’ health.
Public health ethical principles, like the law, recognize that individuals’ rights must sometimes yield to the collective good. In fact, under the “precautionary principle,” public health officials have “an obligation to protect populations against reasonably foreseeable threats, even under conditions of uncertainty.” But, like the law, ethical principles impose safeguards to protect individuals. Similar to the requirements of legal due process, public health ethics mandate that states act only out of necessity and take the least restrictive/intrusive action that will effect the public health goal. Some ethical requirements may arguably exceed legal requirements, for example, by requiring transparency and a fair distribution of the burdens and benefits of public health actions. Especially under the latter principle, actions such as stay-at-home orders and business closures may be lacking in certain respects. For example, when individuals are not able to go to work and earn wages due to business closures, a benefit (the limiting of the potential further spread of COVID-19) is conferred onto the entire public, but only the affected individuals bear the financial burden. Federal stimulus payments and state-level expansions of unemployment benefits reflect efforts to ameliorate these financial burdens, but the pandemic and its economic impacts continue to disproportionately affect low-income communities. Public health officials should take these realities into account when developing, implementing, and enforcing COVID-19 response measures.
Even if a given public health action is constitutional and ethical, there is no assurance of its success. The ultimate effectiveness of COVID-19 measures depends on the public’s compliance with them and, when that fails, effective enforcement. Amid the tumult of the last year, politics—acting through social media, in particular—seems to have become an ever-more influential factor in voluntary compliance with public health measures. Unfortunately, we have seen individuals who refuse to wear masks or close their businesses, sometimes simply because they oppose such measures, and other times because they may not be able to comply for financial or other reasons. These starkly contrasting reasons for noncompliance necessitate different enforcement tactics. Efficient and ethical enforcement of public health laws is challenging during the best of times, but it is extraordinarily difficult when public health measures are as crucial, ubiquitous, and politicized as they are now. Moreover, even the enforcement of these measures is politicized in some jurisdictions, with enforcement agencies (e.g., elected sheriffs) refusing to fulfill their duty to enforce COVID-19 mandates they oppose.
Ultimately, a failure to enforce COVID-19 measures—whether for practical, political, or even ethical reasons—can lead to increased spread of COVID-19, including its inequitable toll on communities of color. In the long term, enforcement failures may erode trust in public health and other governmental agencies, cast doubt on the efficacy of poorly enforced public health interventions, and reduce voluntary compliance in future public health crises.
Going forward, the public health community must closely examine the political and other factors that have jeopardized the success of COVID-19 mitigation measures and must work with other government officials and across party lines to ensure the same failings do not occur again. In the meantime, to maintain public trust regardless of political winds, public health officials must always ground their decisions in science, law, and ethics,* and may do well to acknowledge the real tension that exists between efforts to safeguard public health and individual rights.
* For further discussion of public health executive decision-making during this challenging time, see “Executive Decision Making for COVID-19: Public Health Science through a Political Lens” in Assessing Legal Responses to COVID-19, a recent report to which the Network contributed.
This post was written by Abigail Lynch, Student Researcher, Network for Public Health Law – Mid-States Region Office and J.D. Candidate, University of Michigan (2021), and reviewed by Colleen Healy Boufides, J.D., Deputy Director, Network for Public Health Law – Mid-States Region Office.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.