IEEE Technology and Society Magazine - June 2021 - 37

health concerns of COVID-19 and intended to
slow the spread of the virus [8, at 25]. The plaintiffs
argued that the mandatory quarantine was
unconstitutional,
deprivation
of
their
right
to
travel freely to other states, and a violation of due
process [8, at 26]. In response, the Governor cited
Jacobson and maintained that per health officials,
COVID-19 is easily spread, has no vaccine yet available,
and its incubation period is approximately
14 days; hence the 14-day quarantine [8, at 27].
Per the governor, social distancing and quarantine
measures are pertinent to slow the spread,
keep the citizens of Maine safe, and reduce the
burden on the healthcare facilities [8, at 27].
The court in Bayley's Campground Inc. found
that the police power fortified by Jacobson was
not finite. Moreover, the courts have discretion
in subsequent matters to police the state mandates
[8, at 31]. The court in Bayley's Campground Inc.
described Jacobson as " a legal standard that is at
least the opposite of strict judicial scrutiny " that
amounts to " a rubber stamp for all but the most
absurd and egregious restrictions on constitutional
liberties " [8, at 32]. Ultimately, the preliminary
injunction was denied and the court refused
to acknowledge Jacobson as controlling [8, at 32, 38].
Distinguished from Jacobson, Bayley's Campground
Inc. strongly favors the liberties of the Constitution,
even at an individual level to the police
powers available to the State; however, with little
information to go on in regard to COVID-19 and
what may be the least restrictive means necessary
to protect the public, the executive orders issued
by the governor prevailed [8, at 34-35].
A New York court faced a similar preliminary
injunction alleging violation of the Constitution;
however, this court was more favorable to Jacobson.
In Page v Cuomo, Governor Cuomo found
himself in a similar action where injunctive relief
was requested after several months of quarantine
orders were issued for the State of New York
[9, at 360]. Similar to Bayley's Campground Inc.,
the plaintiff in Page alleges the right to travel
freely between states was violated due to the
quarantine order. The defendants cited Jacobson
as well, stating that the standards of Constitutional
analysis are different when facing a public
health crisis [9, at 361]. Typically, in normal times,
when a Constitutional infringement has been
brought into question, the court would evaluate
June 2021
if the state adhered to a strict scrutiny standard
[9, at 361]. Jacobson allows for more leeway when
it comes to invasion of Constitution rights, if the
state is facing a health crisis of endemic proportions
[9, at 361]. The court in Page focuses on a showing
of irreparable harm as being sufficient to request
relief from injunction. The plaintiff in Page, however,
was unable to prove a sufficient showing of
irreparable harm [9, at 362-363].
Under Jacobson, [t]he bottom line is this: when
faced with a society-threatening epidemic, a state
may implement emergency measures that curtail
constitutional rights so long as the measures have
at least some 'real or substantial relation' to the
public health crisis and are not 'beyond all question,
a plain, palpable invasion of rights secured by
the fundamental law [9, at 366].
As mentioned by the court in Page, Chief Justice
Roberts validated Jacobson as good law and
particularly relevant to the current pandemic crisis
[9, at 366] (Roberts, C.J., concurring, opining
that politically accountable officials are deserving
of especially broad latitude in areas of medical
and scientific uncertainty). The court in Page
acknowledged that there is an archaic nature to
the centurion law, particularly due to the medical
advancement that has occurred in the last century
[9, at 371]. Are we, as a civilized society, really in
a superior position to manage this pandemic? The
courts may soon have their chance to create a new
precedent or etch Jacobson in stone as the vaccine
reaches mainstream. If people felt that their rights
were infringed because they were not able to visit
their summer homes and sightsee with friends, one
could only imagine the outcry if, like Jacobson,
vaccination is mandated.
Operation Warp Speed, the collaborative initiative
of the government and private companies
to research, test, mass-produce, and distribute
a vaccine for COVID-19 all in under a year is an
unprecedented venture [10, at 692]. As we round
the corner to mass distribution, many lie in wait
armed with only their masks and hand sanitizer
[10, at 692]. Officials associated with the program
stated that safety and the ability to mass-produce
were the top priorities [10, at 692]. The vaccination
concerns are similar to those in the past,
such as safety, efficacy, manufacturing, and
distribution, particularly due to the ambitious
37
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IEEE Technology and Society Magazine - June 2021

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