In a year in which “quarantine” and “lock-down” have become colloquial terms, the country has seen unprecedented public action seeking to limit the spread of COVID-19 and protect those at risk. With such actions encroaching on freedoms we all took for granted just months ago—freedom of assembly, freedom of movement, freedom to earn a livelihood—come substantial legal questions and legal challenges. Many of these legal challenges have tested the constitutionality of state emergency orders that restricted Americans’ daily activities. These legal challenges, which have been brought in both state and federal courts, have examined the power of state executives in particular as the COVID-19 crisis developed and raised questions spanning the economic, social, educational, and religious dimensions of our lives. Court examinations of the constitutionality of such orders raise the question: is rational basis review the appropriate level of scrutiny, or should some form of heightened scrutiny apply when public health orders burden people’s rights?
When reviewing whether state or federal actions are constitutional, a court typically applies one of three standards of review: rational basis, intermediate scrutiny, or strict scrutiny. Under rational basis review, a court examines whether a law is rationally related to a legitimate government interest. Intermediate scrutiny is often invoked when a state or government order negatively affects a protected class, and it asks whether a law furthers an important government interest by means that are substantially related to the interest. Under strict scrutiny, a court considers whether a law is necessary to achieve a compelling state interest, and the government must demonstrate that the law is narrowly tailored to achieve the compelling purpose by using the least restrictive means to do so.
One example of a challenge to a COVID-19 order arose in the Supreme Judicial Court of Massachusetts. There, the New Civil Liberties Alliance (NCLA) filed a complaint on behalf of small business owners, church pastors, and a headmaster of a private school, alleging a violation of the separation of powers doctrine and a violation of the petitioners’ federal and state constitutional rights to procedural and substantive due process. The petitioners argued that the liberties burdened by the emergency orders are fundamental and therefore the court should apply strict scrutiny rather than rational basis review. The petitioners allege that the emergency orders, which place restrictions on daily activities including public gatherings, business occupancy, rights to earn a lawful wage, worship as a community, and educate children, affected their fundamental rights.
In its opinion, the court rejected the petitioners’ arguments and held that the emergency orders at issue did not abrogate any fundamental rights; it therefore applied rational basis review and dismissed the challenge. Specifically, the court found that the right to work is not a fundamental right subject to strict scrutiny; that the emergency orders “do not ban teaching children, but rather limit gatherings in schools; and [that] limitations on religious gatherings to mitigate COVID-19 risks are valid as long as the limitations are no more stringent than those imposed on similarly situated secular institutions, which they are in this case.” As to the free assembly claim, the court found that the emergency orders were valid time, place, and manner restrictions. In finding the emergency orders content neutral, the court determined that the purpose of the emergency orders was unrelated to regulating the content of the activities. Further, the court found that the restrictions were narrowly tailored to reduce the COVID-19 transmission rates and were not substantially broader than necessary to achieve the government’s interest in reducing the spread of COVID-19.
Standards of Review
The question of fundamental rights and the related level of scrutiny has become increasingly important during the COVID-19 pandemic. In Meyer v. Nebraska, the Supreme Court determined that “liberty denotes, not merely freedom from bodily restraint, but also the right of the individual to contract to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Thus, several petitioners have argued that various emergency orders infringe on fundamental rights, including the rights to work, teach children, worship, and enjoy related privileges.
Many cases find that the right to work is not a fundamental right, and that claims of interference are subject to rational basis review when a state is exercising its police powers. In response to arguments by plaintiffs, courts have frequently cited Jacobson v. Massachusetts for the proposition that, during times of public health crises, a state action should be upheld unless it lacks a “real or substantial relation to the protection of the public health” or represents “a plain, palpable invasion of rights secured by the fundamental law.”
In Jacobson, the court examined the authority of Massachusetts to force individuals to receive the smallpox vaccine deemed “necessary for public health” or pay a penalty of $5. The court stated:
in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
In interpreting COVID-19 challenges, the overwhelming majority of courts during the pandemic have relied on Jacobson as authority for upholding emergency orders.
Although Jacobson applied a highly deferential standard to the circumstances before it, it did not hold that government discretion is limitless during public health emergencies, nor did it purport to address the kinds of restrictions that state and local officials have imposed during the COVID-19 pandemic. Rather, the vaccination restriction in Jacobson was relatively modest and avoidable, while recent emergency orders ban many occupations, traditional forms of worship, and in-person gatherings, among other liberties. As Justice Gorsuch noted in his concurrence in Roman Catholic Diocese of Brooklyn v. Cuomo, the Jacobson Court only upheld the vaccination restriction because it did not contravene the Constitution, but it did not wade into the murky waters of those intrusions that do. In that opinion, which examined the constitutionality of emergency orders limiting in-person worship services in so-called “red zones” to no more than 10 people, and 25 people in “orange zones,” Justice Gorsuch found the nature of the Jacobson restrictions entirely different to the COVID-19 restrictions and thus inapplicable.
Indeed, the Jacobson court stated:
Before closing this opinion we deem it appropriate, in order to prevent misapprehension [of] our views, to observe—perhaps to repeat a thought already sufficiently expressed, namely—that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.
Accordingly, even under the plain language of Jacobson, a public health measure could violate the Constitution, depending on its requirements.
Despite the frequent citation of Jacobson in recent COVID-19 pandemic related cases, applying Jacobson to modern cases has obvious pitfalls. Jacobson was decided over a century ago, before the development of the tiered levels of scrutiny that are now commonly applied in adjudicating constitutional claims. As Justice Alito noted in a recent dissent:
it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic. Language in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for small pox. It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.
Justice Gorsuch’s Cuomo concurrence further emphasized these points.
Going forward, courts will undoubtedly be faced with additional constitutional challenges to emergency orders. While courts differ on the appropriate standard of review, it remains clear that a lack of consensus will only result in further confusion and potentially disparate decisions. Whatever the correct answer to the standard of review question may be in a given case involving a particular restriction, it is the kind of issue that warrants full development and thoughtful consideration by the courts—not rote recitation of a century old case considering a specific, limited question, at a time when the jurisprudence on reviewing constitutional challenges was quite different from what it is today.
 Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).
 Craig v. Boren, 429 U.S. 190 (1976).
 Cleburne, 473 U.S. at 440.
 Desrosiers v. Baker, 486 Mass. 369 (Mass. Dec. 10, 2020).
 Pet’r-Pl.’s Br. 46, Desrosiers v. Baker, 486 Mass. 369 (Mass. Dec. 10, 2020) (citing Commonwealth v. Beaulieu, 213 Mass. 138, 141 (1912); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
 The emergency orders suspended all in-person instruction at public and private elementary and secondary schools in the Commonwealth; banned on-premises consumption of food or drink at restaurants and bars; suspended all child care operations but established emergency child care for certain children; designated specified service and production sectors as “COVID-19 Essential Services,” which were urged to continue operations during the emergency, and ordered businesses that did not provide essential services to close their physical workspaces and facilities; mandated wearing a face covering when social distancing was not possible; and mandated a fourteen‑day quarantine for travelers arriving in Massachusetts, unless traveling from a specified state, providing a negative COVID-19 test, or otherwise falling within one of the exceptions. Certain orders imposed penalties for violations. For example, violation of the order limiting gatherings to no more than ten people would result in criminal penalty or a civil fine of up to $300 per violation. Desrosiers, 486 Mass. at 373-74. Essential services were defined as those “essential to promote the public health and welfare.” Id. at n.4.
 Desrosiers, 486 Mass. at 388-91.
 Id. at 388 (citing Commonwealth v. Henry’s Drywall Co., 366 Mass. 539, 542 (1974); Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63(2020)).
 Desrosiers, 486 Mass. at 391.
 Id. at 391-92.
 262 U.S. at 399.
 Pet’r-Pl.’s Br. 46, Desrosiers v. Baker, 486 Mass. 369 (Dec. 10, 2020); 4 Aces Enterprises, LLC v. Edwards, 2020 WL 4747660, at *6 (E.D. La. Aug. 17, 2020).
 See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 317 (1976) (Marshall, J., dissenting) (“[T]he right to work is not a fundamental right.”); Helm v. Liem, 523 F. App’x 643, 645 (11th Cir. 2013) (“the right to work in a specific profession is not a fundamental right.”); see also California Gillnetters Assn. v. Dep’t of Fish & Game, 39 Cal. App. 4th 1145, 1155 (1995) (“[C]ourts have concluded that legislative enactments affecting the right to work are tested under a ‘rational basis’ test because there is no fundamental right to work at a particular occupation or for a particular employer.”).
 Desrosiers, 486 Mass. at 385 (citing Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)).
 Jacobson, 197 U.S. at 12.
 Id. at 29.
 Cnty. of Butler v. Wolf, 2020 WL 5647480 (W.D. Pa. Sept. 14, 2020).
 141 S. Ct.at 6972 (Gorsuch, J., concurring).
 Id. This opinion was emphasized by Judge O’Scannlain in his separate opinion in Harvest Rock Church Inc. v. Newsom, in which he noted that the precedent set by South Bay United Pentecostal Church v. Newsom was out of step with this decision and a straightforward application of the Cuomo opinion demonstrated that a total ban of indoor worship in nearly an entire state was patently unconstitutional. 2021 WL 287832 (9th Cir. Jan. 25, 2021) (citing South Bay United Pentecostal Church v. Newsom, 2021 WL 222814 (9th Cir. Jan. 22, 2021)).
 Jacobson, 197 U.S. at 28.
 Cnty. of Butler, 2020 WL 5510690, at *6-10.
 Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting).