2021 Articles

Weeding Out Disingenuous Emergency Orders: A Consistent Ethical Justification to Determine Whether to Apply Jacobson v. Massachusetts’ Deferential Approach or the Tiered Scrutiny that Would Apply Absent an Emergency

Zimmerman, Anne

ABSTRACT
The most compelling ethical justification for the use of public health police power in an emergency is that the order enacted will have a profound, beneficial effect on the overall emergency: a tight causal nexus. The strong, causal relationship to a largescale goal should protect public health orders that are time sensitive and effective and should be evaluated under Jacobson’s test regardless of the type of right infringed. With over 500,000 deaths from COVID-19, preparation for future emergencies should include legal and ethical clarity on which orders are evaluated under a deferential approach and which call for heightened or strict scrutiny.