Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications

Abstract

During the COVID-19 pandemic, officials in the United States at all levels of government utilized their legal authorities to impose a wide range of measures designed to control the spread of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2; the causative agent of COVID-19), including shutting down businesses, limiting the size of gatherings, requiring masking, and mandating vaccination.

These orders and regulations were challenged in court cases that resulted in more than 1000 judicial decisions. Common claims were based on alleged procedural and substantive due process violations, violations of religious liberty, and violations of officials’ scope of authority. In more than three fourths of the decisions, the court refused to grant the plaintiffs the relief sought. However, plaintiffs found success in several notable cases, especially in federal court.

These recent decisions, as well as broader prepandemic trends, have important implications for public health officials’ exercise of their public health powers, especially when those exercises implicate religious liberty. In this legal environment, officials may need to rely more on the powers of persuasion than on their legal authority alone. (Am J Public Health. 2023;113(3):280–287. https://doi.org/10.2105/10.2105/AJPH.2022.307181)

Since March 2020, officials at all levels of government (federal, state, and local) have utilized their legal authorities to issue a wide range of orders and regulations designed to slow the transmission of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2; the causative agent of COVID-19). In response, individuals and entities around the country filed legal challenges. Courts have issued more than 1000 decisions in these cases.¹

In more than three fourths of the more than 1000 decisions that we have collected, the court refused to give the plaintiff the relief sought. Nevertheless, some courts, including the US Supreme Court, have granted health officials less deference than they have traditionally received, especially in cases involving religious liberty or scope of authority.² This presents significant challenges to officials’ ability to prevent and respond to future health threats. In the discussion that follows, we offer an overview of the decisions we have compiled, describe the courts’ approaches to these claims, and consider the implications of these decisions for public health practice.

JUDICIAL DECISIONS DURING THE COVID-19 PANDEMIC

Using legal research methods, our team collected state and federal judicial decisions in Westlaw’s legal database issued between March 1, 2020, and July 1, 2022, that relate to COVID-19 orders. Each decision in a case was counted separately. For example, we counted a trial court decision and a later appellate decision as 2 decisions. For the Supreme Court, we did not count denials of petition for certiorari but did include decisions on petitions for emergency relief (i.e., decisions from the so-called shadow docket) in which a justice or the majority wrote an opinion, including a concurrence or dissent. We did not include decisions that only discussed certain procedural or evidentiary matters, such as discovery motions. We also did not track tribal cases.

Search terms included topics such as “mask mandate,” “face coverings,” “quarantine,” “vaccination requirements,” “public health order,” and “eviction moratorium,” and legal issues such as “free exercise,” “due process,” “equal protection,” “second amendment,” and “administrative procedure.”

We supplemented the decisions we found through Westlaw with decisions compiled by the Solomon Center for Health Law and Policy at Yale Law School, which also tracked COVID-19–related decisions. For each decision we found through either Westlaw or the Solomon Center’s list, we utilized the “Citing References” function in Westlaw to find additional decisions. Each decision was entered into a spreadsheet and tagged by date, jurisdiction, topic, legal issues, and outcome. Each decision and its tags were subsequently reviewed by another research assistant or our senior researcher. Limitations to our approach include that we included decisions that were subsequently overruled or vacated, or, in the case of the Supreme Court, were signed by a minority of justices. We also did not give greater weight to precedential decisions. Nevertheless, our compilation sheds light on the landscape of judicial decisions concerning public health authorities during the pandemic.

The decisions that we collected dealt with the authority of government actors, including governors, state and federal agencies, city officials, health departments, and school districts. We did not include decisions that related solely to breach of contract claims, election procedures, immigration detention, or incarceration. We found 887 decisions in federal courts and 182 decisions in state courts. Most of the decisions dealt with challenges to state measures (945 decisions) versus federal measures (124 decisions). The measures most commonly discussed were social distancing measures (including business closures and restrictions, stay-at-home orders, and gathering restrictions; 500 decisions), mask mandates (242 decisions), and vaccine mandates (211 decisions; Figure 1). Many decisions discussed more than 1 of these issues.¹

FIGURE 1—

Types of COVID-19 Response Measures Most Commonly Challenged: United States, March 2020–July 2022

Not surprisingly, the mix of decisions followed the changing nature of the public health response to the pandemic. In 2020, most decisions dealt with business closures, stay-at-home orders, restrictions on gatherings (including for worship), and, later in the year, mask mandates. As restrictions on businesses and gatherings eased in 2021,³ most decisions reviewed mask or vaccine mandates.

This article describes in further detail decisions analyzing legal claims relating to (1) individual rights, (2) scope of authority, and (3) administrative procedures.

INDIVIDUAL RIGHTS

Many of the public health orders issued during the pandemic restricted individual liberty and implicated (or at least potentially implicated) fundamental constitutional rights.⁴ For example, stay-at-home orders affected the right to travel. Restrictions on worship raised issues relating to the First Amendment’s guarantee of free exercise of religion.

Plaintiffs brought a wide range of individual rights claims. In 430 of the decisions we collected, plaintiffs argued that public health orders violated their rights under the Fourteenth Amendment to procedural due process, which concerns the process that is owed to an individual subjected to a government order, or substantive due process, which encompasses the right to privacy, including the right to abortion (before Roe v Wade was overturned). Courts ruled for plaintiffs in full or in part in 61 of these decisions.¹

Equal protection claims were raised in 329 decisions we collected. Courts ruled for plaintiffs in full or in part in 45 of these decisions. Many plaintiffs argued that orders that shuttered or restricted some but not all businesses violated the Fourteenth Amendment’s guarantee of equal protection. We collected 126 such decisions. For example, in Big Tyme Investments v Edwards, bar owners argued that Louisiana violated their right to equal protection by prohibiting the sale of alcohol and food at bars while allowing it in restaurants.⁵ The US Court of Appeals for the Fifth Circuit disagreed, reasoning that because bars (unlike race or gender) is not a “suspect classification” for equal protection purposes, the plaintiffs had to prove that the government’s order lacked a rational basis. The court then found that the plaintiff had not made such a showing. Most courts used similar reasoning to reject equal protection claims; in only 15 of the decisions we collected did courts rule partially or fully in favor of plaintiffs who raised such claims.

Several businesses alleged that COVID-19 orders, including eviction moratoria and shutdown orders, violated the Constitution’s ban on impairment of contracts or its prohibition on the taking of property without just compensation. Courts ruled partially or fully in favor of plaintiffs in 16 of 149 decisions we found. For example, in Auracle Homes v Lamont, landlords argued that Connecticut’s eviction moratorium “violates [their] constitutional rights under both the Contracts Clause and the Takings Clause of the US Constitution.”⁶ Denying plaintiffs a temporary restraining order, the US District Court in Connecticut reasoned that the Contracts Clause claim failed because the moratorium was reasonable and served a “significant and legitimate public purpose.” The court rejected plaintiffs’ takings claim because “reasonable investment-backed expectations cannot operate apart from ‘public programs adjusting the benefits and burdens of economic life to promote the common good.’ ” Other decisions echoed this reasoning.

In 27 decisions, plaintiffs claimed that the state restricted their Second Amendment rights by closing gun stores or shooting ranges.¹ In 4 decisions, the court ruled that the order likely violated the Second Amendment. For example, in Connecticut Citizens Defense League v Lamont, the US District Court in Connecticut granted a preliminary injunction against Governor Lamont’s executive order allowing police departments to suspend fingerprinting for obtaining a handgun permit, noting that “the courts retain a role to examine the use of governmental power even during a public health emergency.”⁷

In spring 2020, 35 states had capacity limits or bans on gatherings that applied to in-person worship.⁸ In at least 143 decisions, plaintiffs argued that these gathering restrictions violated the Free Exercise Clause of the First Amendment as well as, in some cases, statutory protections for religious liberty. Although most decisions rejected such claims, plaintiffs were more successful in these claims than in many other types of individual rights claims, as courts ruled partially or fully for plaintiffs in 37 of the 143 decisions in our compilation in which plaintiffs challenged gathering restrictions based on religious liberty claims.

In November 2020, the Supreme Court enjoined a New York order limiting the number of people who could gather for worship in COVID “hot zones,” finding that it likely violated the Free Exercise Clause.⁹ According to the court, the order was not neutral as to religion, and was therefore subject to strict scrutiny, the most stringent form of review. The court then ruled that the order failed strict scrutiny because it was not, in the court’s assessment, the least restrictive means of achieving a compelling state interest. Over the next 6 months, the Supreme Court issued several additional decisions in favor of plaintiffs who challenged public health orders on free exercise grounds. In 3 of these decisions, the order that was challenged did not specify or explicitly target religion (Table 1). Nevertheless, most free exercise challenges continued to fail in the lower courts.

TABLE 1—

Supreme Court Opinions on Public Health Authorities Related to the COVID-19 Pandemic: United States

Case	Date	Disposition
Free Exercise Challenges to Restrictions on Gatherings
South Bay United Pentecostal Church v Newsom (South Bay I), 140 S Ct 1613 (2020)	May 29, 2020	Plaintiffs’ application for injunctive relief denied
Calvary Chapel Dayton Valley v Sisolak, 140 S Ct 2603 (2020)	Jul 24, 2020	Plaintiffs’ application for injunctive relief denied
Roman Catholic Diocese of Brooklyn v Cuomo, 141 S Ct 63 (2020) (per curiam)	Nov 25, 2020	Plaintiffs’ application for injunctive relief granted in part
Agudath Israel of America v Cuomo, 141 S Ct 889 (2020)	Nov 25, 2020	Plaintiffs’ application for injunctive relief granted in part
Gateway City Church v Newsom, 141 S Ct 1460 (2021)	Dec 3, 2020	Plaintiffs’ application for injunctive relief granted pending appeal and disposition of the petition for writ of certiorari
High Plains Harvest Church v Polis, 141 S Ct 527 (2020)	Dec 15, 2020	Plaintiffs’ application for injunctive relief granted
Danville Christian Academy v Beshear, 141 S Ct 527 (2020)	Dec 17, 2020	Plaintiffs’ application for a preliminary injunction denied
South Bay United Pentecostal Church v Newsom (South Bay II), 141 S Ct 716 (2021)	Feb 5, 2021	Plaintiffs’ application for injunctive relief granted in part
Harvest Rock Church v Newsom, 141 S Ct 1289 (2021)	Feb 5, 2021	Plaintiffs’ application for injunctive relief granted in part
Tandon v Newsom, 141 S Ct 1294 (2021) (per curiam)	Apr 9, 2021	Plaintiffs’ application for injunctive relief granted
Free Exercise Challenges to Vaccine Mandates
Does 1–3 v Mills, 142 S Ct 17 (2021)	Oct 29, 2021	Plaintiffs’ application for injunctive relief denied
Dr A v Hochul, 142 S Ct 552 (2021)	Dec 13, 2021	Plaintiffs’ application for injunctive relief denied
Austin v US Navy Seals 1–26, 142 S Ct 1301 (2022)	Mar 25, 2022	Government’s application for a partial stay of the District Court’s preliminary injunction granted
Scope of Authority Challenges
Alabama Association of Realtors v HHS, 141 S Ct 2320 (2021)	Jun 29, 2021	Plaintiffs’ application to vacate the lower court’s stay of the CDC’s national eviction moratorium denied
Chrysafis v Marks, 141 S Ct 2482 (2021)	Aug 12, 2021	Plaintiffs’ application for injunctive relief granted
Alabama Association of Realtors v HHS, 141 S Ct 2485 (2021) (per curiam)	Aug 26, 2021	Plaintiffs’ application to stay the CDC’s nationwide eviction moratorium for residential rental properties granted
Biden v Missouri, 142 S Ct 647 (2022) (per curiam)	Jan 13, 2022	Government’s application to stay preliminary injunctions granted
National Federation of Independent Businesses v OSHA, 142 S Ct 661 (2022) (per curiam)	Jan 13, 2022	Plaintiffs’ application for a stay of OSHA’s employee vaccination mandate granted

Note. CDC = Centers for Disease Control and Prevention; HHS = Department of Health and Human Services; OSHA = Occupational Safety and Health Administration. Only includes US Supreme Court cases between May 1, 2020, and July 1, 2022, in which there were opinions, including concurrences or dissents.

After restrictions on gatherings were lifted, religious liberty litigation focused on vaccine mandates. Plaintiffs argued that mandates without religious exemptions discriminated against religion by allowing medical, but not religious, exemptions.¹⁰ Plaintiffs also challenged denials of religious exemptions that were available but were not granted to them as individuals. Although courts were more likely than not to rule against plaintiffs, plaintiffs were more successful with these cases than in many other individual rights claims, succeeding or partially succeeding in 21 of 81 free exercise vaccination decisions.

SCOPE OF AUTHORITY

For the most part, executive branch officials can only exercise powers granted to them by acts of the legislature through statutes. Each state has legislation granting the governor and other officials, at both the state and local levels, broad authority to respond to emergencies. Few of these statutes explicitly enumerate many of the measures used in response to COVID-19, such as stay-at-home orders or mask mandates. As a result, officials generally relied on broad statutory language that authorizes them to take actions that they find to be necessary to safeguard health or respond to an emergency.¹¹

Many challengers argued that officials overstepped their authority by imposing measures that were not explicitly authorized by statute. Twenty cases challenging the scope of authority of state officials resulted in decisions by the state’s supreme court, the final judicial authority on state statutory authority (Table 2). In 10 states, the high court affirmed officials’ use of public health or emergency powers. For example, in Grisham v Romero, the New Mexico Supreme Court sided with Governor Lujan Grisham, stating that the Public Health Emergency Response Act granted her broad authority to impose measures to protect public health.¹² However, in 3 “purple” states with a Democratic governor and a Republican-led state legislature (Wisconsin, Michigan, and Pennsylvania), the state supreme court held that executive officials had exceeded the scope of their statutory authority. For example, in Wisconsin v Palm, the Republican-led state legislature argued that the Democratic governor’s secretary-designee of the Department of Health Services exceeded her authority in issuing a stay-at-home order. The Wisconsin Supreme Court agreed.¹³

TABLE 2—

State Supreme Court Decisions on Scope of Public Health Powers: United States, March 2020–July 2022

State	Upheld Exercise of Authority	Rejected or Blocked Exercise of Authority
Connecticut	Casey v Lamont, 258 A3d 647 (Conn 2021)	. . .
Florida	Abramson v DeSantis, 2020 WL 3464376 (Fla June 25, 2020)	. . .
Kansas	Kelly v Legis Coordinating Council, 460 P3d 832 (Kan 2020)	. . .
Kentucky	Beshear v Acree, 615 SW3d 780 (Ky 2020)	. . .
Massachusetts	Desrosiers v Governor, 158 NE3d 827 (Mass 2020)	. . .
Michigan	. . .	House of Representatives v Governor, 949 NW2d 276 (Mich 2020); In re Certified Questions, 506 Mich 332 (Mich 2020)
New Mexico	Grisham v Romero, 483 P3d 545 (NM 2021); Grisham v Reeb, 480 P3d 852 (NM 2020); State v Wilson, 489 P3d 925 (NM 2021)	. . .
North Dakota	State v Riggin, 959 NW2d 855 (ND 2021)	. . .
Oregon	Elkhorn Baptist Church v Brown, 466 P3d 30 (Or 2020)	. . .
Pennsylvania	Friends of Danny DeVito v Wolf, 227 A3d 872 (Pa 2020); Wolf v Scarnati, 233 A3d 679 (Pa 2020)	Corman v Acting Secretary of Pennsylvania Department of Health, 266 A3d 452 (Pa 2021)
Washington	Matter of Recall of Inslee, 508 P3d 635 (Wash 2022)	. . .
Wisconsin	. . .	Tavern League of Wisconsin Inc v Palm, 957 NW2d 261 (Wis 2021); Fabick v Evers, 956 NW2d 856 (Wis 2021); Wisconsin Legis v Palm, 942 NW2d 900 (Wis 2020); James v Heinrich, 960 NW2d 350 (Wis 2021)

Four state supreme courts, all in states with divided government, also weighed in on governors’ authority to declare or extend states of emergency (Table 2). Two courts (Kentucky and Massachusetts) held that the governors properly declared or extended a state of emergency. Two courts (Michigan and Wisconsin) held that the governors exceeded their authority by extending emergencies.

After the Biden administration took office, numerous scope of authority challenges were brought against federal orders, including the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), federal vaccine mandates, and mask mandates for travel. In August 2021, the Supreme Court relied on the relatively novel “major questions doctrine,” which holds that administrative agencies cannot issue orders or regulations with major economic or political significance without explicit statutory authority, to block the CDC’s eviction moratorium (Table 1). In January 2022, the court used that same doctrine to block an emergency rule by the Occupational Safety and Health Administration that would have required large employers to mandate either vaccination or testing and masking. The Supreme Court did permit the Centers for Medicare and Medicaid Services to require that health care workers be vaccinated, ruling that the agency had ample statutory authority to condition providers’ participation in Medicare and Medicaid (Table 1). Following these decisions, lower federal courts have applied the major questions doctrine to block several other federal initiatives, including vaccine mandates for federal contractors¹⁴ and the CDC’s mask mandate for transportation.¹⁵

CHALLENGES BASED ON ADMINISTRATIVE PROCEDURES

State and federal administrative procedure acts require agencies, such as the CDC or state health departments, to go through a notice-and-comment process before enacting a rule. However, these acts usually allow agencies to bypass this process when it would be impractical, as in emergencies. Many plaintiffs challenged such emergency orders, arguing that agencies should have gone through the lengthier rule-making process.

Challenges on federal or state administrative procedure act grounds were more likely to be decided in favor of plaintiffs than challenges based on any other legal issue we tracked. Of the 85 relevant decisions we found, 33 ruled partially or fully in favor of plaintiffs.¹

AN EVOLVING APPROACH TO JUDICIAL REVIEW

The exercise of public health powers can facilitate a quick and effective response to public health threats. Although far more research is needed, some studies have found that the use of such powers during the COVID-19 pandemic helped to reduce its toll.^16,17 Public health orders, however, can also be abused, as when San Francisco, California, targeted people of Asian descent during a bubonic plague outbreak in 1900.¹⁸ Litigation and the judicial review it invokes can play a powerful role in preventing such abuses, ensuring that public health powers are utilized in a manner that is consistent with constitutional rights and the rule of law.

Traditionally, courts have granted health officials significant (but not total) deference when reviewing challenges to public health powers.¹⁹ Most famously, in 1905 in Jacobson v Massachusetts, the Supreme Court expressed the importance of public health expertise when it upheld a vaccine mandate, explaining that the legislature could delegate the determination of whether a mandate was appropriate “to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions.”²⁰ The court concluded that the judiciary’s role in reviewing such expert decisions should be limited.²⁰

Even before the pandemic, judicial deference to public health powers was fading in response to challenges from both ends of the political spectrum.²¹ Some legal scholars argued that courts should review public health orders more vigorously to safeguard constitutional liberties and reduce the misapplication of public health powers against minorities and vulnerable individuals.^22,23 Corporations and libertarians challenged public health laws relating to noncommunicable diseases as unduly paternalistic.²⁴ Some courts seemed convinced by such arguments. In 1 notable case, the New York Court of Appeals ruled that New York City’s health department could not use its broad public health powers to limit portion sizes for sugary beverages.²⁵ Increased scrutiny of commercial speech regulations also led courts to block laws compelling graphic warnings for cigarettes and warnings in beverage advertisements.²¹

Despite these forewarnings, early in the COVID-19 pandemic, most courts noted the existence of a public health emergency and granted considerable (though varied) levels of deference to officials even when constitutionally protected rights were implicated.²⁶ In 1 widely cited case, the US Court of Appeals for the Fifth Circuit rejected a challenge to Texas Governor Greg Abbott’s emergency order banning abortions, which at the time were still constitutionally protected, stating that during a public health emergency judicial review must be limited to determining if the order “has no real or substantial relation to [public health], or is, beyond all question, a plain, palpable invasion of rights.”²⁷ A few weeks later, the Supreme Court in South Bay United Pentecostal Church v Newsom refused to block a California order restricting worship. Although the full court did not issue an opinion in that case, Chief Justice John Roberts wrote a concurring decision, stating, “Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the States.”²⁸

As the pandemic progressed and became more politically polarized, and especially after Justice Amy Coney Barrett replaced Ruth Bader Ginsburg on the high court, the Supreme Court appeared to grant officials less deference, especially in free exercise cases. This was initially evident in the court’s decision to block New York’s capacity limits on worship in hot zones.⁹ Tellingly, the court in that case did not discuss Jacobson. Nor did it do so several months later when it ruled that a California order restricting gatherings of all types in private homes was subject to strict judicial scrutiny because it interfered with plaintiffs’ ability to hold a Bible study group while some secular activities, like shopping, faced looser restrictions.²⁹ In reaching that conclusion, and in contrast with Chief Justice Roberts’ call for deference in South Bay, the majority gave no weight to health officials’ determination that gatherings in private homes were different from and more dangerous than the public gatherings that were less strictly regulated. Indeed, the court did not discuss any of the public health evidence in the record.

The Supreme Court’s new stance toward free exercise claims opened the door to religious liberty challenges to vaccine mandates. Before the pandemic, courts uniformly rejected such claims.¹⁰ Since 2021, the courts have been divided as to whether public vaccine mandates must include religious exemptions, or whether the denial of a requested exemption is unconstitutional. For example, in US Navy Seals 1–26 v Biden, the Fifth Circuit ruled that the Navy’s failure to grant religious exemptions likely violated service members’ statutory rights to religious liberty. In reaching that conclusion, the court rejected the Navy’s contention that its vaccine mandate was essential to ensuring the safety and readiness of the troops.³⁰ The Supreme Court narrowed the injunction in that case, allowing the Navy to consider “respondents’ vaccination status in deployment, assignment, and other operational decisions” but still preventing the Navy from enforcing the vaccination requirement on plaintiffs.³¹ Conversely, federal appellate courts in the First and Second Circuits rejected religious challenges to vaccine mandates for health care workers.^32,33 To date, the Supreme Court has chosen not to consider a free exercise challenge to a state vaccine mandate. Several justices, however, published opinions arguing that states’ failure to provide religious exemptions violates the Constitution.³⁴ These statements, when combined with the Supreme Court’s new approach to religious liberty claims, may invite challenges to childhood vaccine laws and many other public health measures that individuals may believe interfere with their religious practices or views.¹⁰

Using the major questions doctrine and related approaches to statutory construction, the Supreme Court and some lower courts have also begun to read broad delegations of public health powers narrowly to prohibit officials from issuing measures that are not explicitly enumerated in a statute. This cramped reading of public health statutes can make it difficult for health officials to respond to novel health problems that require interventions that legislatures could not have anticipated. It also means that officials must wait for the legislature to act before issuing needed orders or risk having them struck down. Political gridlock and the fact that most state legislatures do not meet year-round compound the problem.

IMPLICATIONS FOR PUBLIC HEALTH PRACTICE

Although courts continue to reject most challenges to public health measures, decisions issued during the COVID-19 pandemic show that health officials cannot assume that courts will give them the benefit of the doubt. In this climate, it is more essential than ever that health officials base their decisions on the best available science and assemble a robust record that can demonstrate the necessity of their actions. This may not forestall litigation or guarantee success in it, but it is an essential first step.

Officials also need to take special care when issuing orders that may touch upon religious practices and beliefs. Public health measures that specify religious practices, such as limitations on worship, face heighted constitutional risk, but so do orders that are neutral on their face as to religion but may still interfere with an individual’s ability to practice their faith. In particular, laws that appear to restrict an exercise of religion more strictly than “comparable” secular activities (even if the scientific evidence does not back up that comparability) may be subject to strict judicial scrutiny and held unconstitutional. To avoid this risk, officials should ensure that the lines they draw are grounded in the best available science. Officials must also understand that simply providing religious exemptions on paper will not insulate a mandate or other order from a free exercise challenge; they must have strong evidence to justify denying any religious exemptions that are requested. Even then, the order may be struck.

Given the high percentage of administrative procedure cases won by plaintiffs, officials should consider commencing rule-making procedures as quickly as possible if they want emergency orders to stay in place. When a new health threat, such as a pandemic, strikes, officials need to act swiftly; rule-making is often impossible at that point. But as a pandemic or other emergency continues, the rule-making process can avoid some legal problems and enable the public to weigh in on whether particular health measures should continue.

Most importantly, health officials need to recognize both the extent and limits of their legal powers. Officials continue to win most cases and should not be dissuaded from issuing critical orders or regulations because of overblown fears of litigation. The decisions issued during the COVID-19 pandemic show that, especially in the early days of a health threat, most courts will still give officials considerable deference.

Nevertheless, public health officials have lost some very important, high-profile cases. In addition, the very process of litigation, even when the outcome is successful from a public health perspective, can deplete resources and distract officials from doing their job. Further, in our highly polarized political climate, officials need to accept that litigation can play a politically performative role, in which partisans run to court to challenge and politically weaken their opponents, as when the Republican legislature challenged the Democratic governor’s public health orders in Wisconsin¹³ or when several “red states” challenged Biden’s vaccine mandates.¹

In this legal environment, health officials should remember that persuasion is among their most potent powers. A public that distrusts or doesn’t understand health measures is more likely to challenge them in court. And judges may find it easier to strike orders that are deeply unpopular. Conversely, a public that trusts public health authorities and understands the rationale for recommended measures is probably less likely to litigate. Although obtaining the public’s support can be difficult in the current political and informational climate, it will be increasingly essential if the judiciary further constricts officials’ legal authorities. Although many health departments face limited resources, investing in training or additional help in communicating with the public may be well worth the costs, leading to better outcomes and decreased litigation.