We’re living in unprecedented times, without question. COVID-19 has seemingly turned the world on its head in 2020, and questions remain in the wake of state reopenings.
One immediately pressing question is whether or not states have the legal right to require citizens to wear masks. In a word, yes. This right has been well established since the 19th century. The 10th Amendment grants states these powers, in the name of “protection of public health”. Interestingly, this law has been in place since the early 1800’s, when the court in Gibbons v. Ogden established the states’ rights of police powers to include “inspection laws, quarantine laws, [and] health laws of every description.” Gibbons v. Ogden, 22 US 1, 78 (1824).
In Jacobson v, Massachusetts, the Court defined what is required for a state to enact that police power: to do so in the name of public safety, states must demonstrate a clear and discernible necessity, which is non-arbitrary. Moreover, there must be a “real or substantial relation” of the requirement as it pertains to protecting public safety/health. In other words, a state must be able to demonstrate that there is an expected benefit proportionate to the interference with an individual’s autonomy.
As Richards and Rathbun note, for a disease-controlor pandemic-prevention program to be able to impose restrictions on individual liberties to survive a constitutional challenge, the program must meet five standards. The public health requirement must (1) address an actual problem that poses a direct threat to third parties; (2) develop a science-backed control strategy; (3) implement that strategy in the most effective way while minimizing restrictions on individuals, considering the resources available; (4) periodically evaluate the restrictions to show efficacy; and (5) phase out the restrictions when they are no longer epidemiologically warranted. The mask requirement in the face of a confirmed and still rising (in the U.S.) health crisis certainly satisfies those standards.
However, an even more complicated question is likely on the horizon: can a state require an individual to get a vaccine?
This question is certain to receive harsh questioning and a full legal analysis, yet arguably, we’ve seen this line of questioning before. In the late 18th century and early into the 1800’s, our new country was grappling with pandemics such as yellow fever and smallpox. As the Court in Smith v. Turner stated, the country was “‘roused’ by the ‘havoc’” of fighting these pandemics. The Jacobson court held that “the states had the right to impose upon an individual’s body by requiring that they submit to vaccination for smallpox, and that the individual must give up certain freedoms for the benefit of living in a civilized society. “[T]he 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 free from restraint.” Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905).
In short, our constitution allows for states to take drastic measures in the name of public safety; particularly, when public health seems out of grasp absent such measures. Courts, including the highest court in the nation, have shown that they will uphold those rights when balanced with public safety. From a legal perspective, will be interesting to see how this plays out in the 21st century, but putting this question in context with legal precedence certainly paints a picture of how these questions will likely be answered by courts.