Federal Court in Pennsylvania Finds Governor’s COVID-19 Restrictions Unconstitutional

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by Tina Batra Hershey, JD, MPH, and Elizabeth Van Nostrand, JD

In response to the COVID-19 pandemic, states and local governments issued sweeping orders to stop the spread of the novel coronavirus. While these orders have been credited with saving lives,[1] they have also had a profound impact on the economy. Numerous legal challenges have been filed with respect to these restrictions in both federal and state courts.[2] Many of these cases raise questions regarding constitutional limits on governmental authority to restrict social and economic activity to protect the public’s health. They also raise issues regarding separation of powers and governors’ authority to impose restrictions.

Most of these challenges have not been successful, despite restrictions on individual rights such as free speech, peaceful assembly, travel, and free exercise of religion. For example, in May, the United States Supreme Court ruled 5-4 to reject a California church’s attempt to overturn the state’s restrictions on in-person religious services. In Chief Justice Robert’s concurrence, he stated:

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).

The high court decided a similar case brought by a Nevada church two months later with the same outcome.

However, on September 14, 2020, U.S. District Judge William Stickman IV of the Western District of Pennsylvania ruled that certain restrictions imposed by Pennsylvania Governor Tom Wolf and his administration were unconstitutional. Specifically, Judge Stickman declared that the congregate gathering limitations imposed by Governor Wolf in an Executive Order violated the First Amendment’s right to free assembly. He further found violations of the Fourteenth Amendment’s Due Process and Equal Protection clauses in the now lifted stay-at-home and business closure components of certain Executive Orders. Previous rulings rejected challenges to Governor Wolf’s coronavirus orders. While the court recognized that the Wolf administration “took their actions in a well-intentioned effort to protect Pennsylvanians from the virus … good intentions toward a laudable goal are not alone enough to uphold governmental action against a constitutional challenge.”

This case may mark a shift in judicial deference to the exercise of executive authority. Under Jacobson principles, generally, states may exercise their police powers to protect the public’s health if they identify a compelling threat to their community, demonstrate a reasonable relationship between the public health intervention and the achievement of a legitimate public health objective, and use the least restrictive means (ie, means that are the least burdensome to individual rights) to effectuate the public health goal.

As the pandemic continues, courts may be less tolerant of restrictions on civil liberties if they are no longer seen as “temporary.” Moreover, as our scientific understanding of the novel coronavirus evolves, wholesale business closures and shutdowns of society may no longer be viewed as the least restrictive means to stop the spread of COVID-19.

The ongoing nature of the pandemic also raises questions regarding separation of powers and the legal authority of governors to impose restrictions without legislative approval. Courts may no longer give deference to executive actions that stray into legislative territory. For example, in May, the Wisconsin Supreme Court overturned the state’s “safer-at-home” order and ruled that Secretary of Health Services, acting under the Governor’s direction, could not continue to extend stay-at-home orders indefinitely without seeking approval from the state legislature required under Wisconsin law.

Butler v. Wolf is but one in a plethora of other cases and may be overturned on appeal; however, state and local governments should view it as warning to be clear, transparent, and detailed in their communications. Executive actions to address the predicted fall surge in coronavirus cases should state their strategic purpose and goals, elucidate the necessity for the restrictions, and set forth criteria to determine if the actions are working and when they will be lifted. Moreover, governors may need to work with their legislatures or follow notice-and-comment rulemaking procedures to continue to impose restrictions. The need to protect public health from the threat of COVID-19 will continue; however, the nature and source of the protections may need to evolve to survive judicial scrutiny.

[1] See, eg, https://www.inquirer.com/health/coronavirus/covid19-tom-wolf-rachel-levine-shutdown-saved-lives-unconstitutional-pitt-20200916.html

[2] See, eg, https://www.huntonak.com/en/covid-19-tracker.html.

Tina Batra Hershey bio

Tina Batra Hershey, JD, MPH

Tina Batra Hershey, JD, MPH, is an Assistant Professor, Health Policy and Management, at the University of Pittsburgh Graduate School of Public Health and an Adjunct Professor at the University of Pittsburgh School of Law. She is also the Assistant Director for Law and Policy at the Center for Public Health Practice at Pitt Public Health, where she researches legal, policy, and ethical issues related to the delivery of health care and emergency preparedness. [Full bio]. (Photo: Univ. of Pittsburgh Center for Teaching and Learning, Photographic Services)

Elizabeth Van Nostrand bio

Elizabeth Van Nostrand, JD

Elizabeth Van Nostrand, JD, is an Associate Professor and the Director of the MPH and JD/MPH Programs in the Department of Health Policy and Management at Pitt Public Health, an Adjunct Professor in the School of Law, a recent Robert Wood Johnson Foundation Fellow, Director of Pitt Public Health’s JD/MPH program, and Principal Investigator/Director of the Mid-Atlantic Regional Training Center. [Full bio]. (Photo: University of Pittsburgh Graduate School of Public Health)

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