This evidence review was compiled by members of the CITF Secretariat with the input from experts affiliated with the CITF and does not necessarily reflect the views of all CITF members.

By Alexis Palmer-Fluevog

The field of public health has never been without critics. Globally, public health officers wield varying amounts of power, with the North American court systems historically respecting and upholding public health order. In this article published in the New England Journal of Medicine, Mello and colleagues voice their concerns about the increasing number of legal challenges in the US to COVID-19 public health orders.

Extensive mitigation measures have been imposed by public health officials in the U.S. and Canada to keep communities safe and limit the spread of COVID-19. These have been enforced using powers conferred to public health agencies by government. While the measures are meant to protect communities from COVID-19-specific harm, some do not agree with these measures. Numerous lawsuits have been filed in the U.S. with the aim of challenging orders that shuttered businesses, banned indoor worship services, restricted travel, and mandated mask wearing.

Courts have historically been deferential to public health orders, dating back to vaccination mandates over a hundred years ago. Initially, as the pandemic first picked up, courts rejected most challenges to COVID-related emergency orders. However, as the ongoing pandemic continues to lengthen, court systems in the U.S. (in particular) have been more receptive to challenges relating to religious liberty and the scope of executive authority.

Recent cases in which the court has ruled in favour of the petitioner over the recommendations of the US Centers for Disease Control and Prevention (CDC) set a precedent and pose new challenges in the ability of public health officials to protect the public. The authors of the paper question how these rulings will affect vaccination mandates and other public health laws. Courts allowing these cases to proceed unchallenged is a far cry from 1905 when “The [US] Supreme Court upheld a vaccination mandate and emphasized that public health protection was the primary  responsibility of elected officials and the experts to whom they delegated power.”

The authors stress the potential negative implications of the Supreme Court’s decision regarding the CDC’s authority. Mello and colleagues ask that Congress clarify that it intends public health officials to have broader power to ensure that the CDC isn’t rendered powerless, particularly in a global health crisis. Although the authors speak of circumstances in the USA, this topic is relevant to Canada as well. Public health should be a non-partisan topic in all countries.

Mello, M.M., Parmet, W.E., 2021. Public Health Law after Covid-19. New England Journal of Medicine. doi:10.1056/nejmp2112193