In the spring of 2021, the state legislature of Connecticut, along party lines in two heavily stacked Democratic chambers, passed a law, Public Act 21-17, which prohibits "limited services pregnancy centers" from making or disseminating before the public through any available media source "any statement concerning any pregnancy-related service or the provision of any pregnancy-related service that is deceptive, whether by statement or omission, and that a limited services pregnancy center knows or reasonably should know to be deceptive." The law defines "limited services pregnancy centers" as "a pregnancy services center that does not directly provide, or provide referrals for, abortions or emergency contraception." In these terms, the law directly establishes a state mandated boundary on the performance of counseling services by medical and/or non-medical professionals on the treatment of a specified medical condition (i.e. pregnancy) and goes on to establish a set of conditions for the performance and advertising of such services and penalties when those conditions are not completely satisfied to the standards established by the law and by the determination of the Connecticut Office of the Attorney General. Evidently, if an organization that advertises pregnancy counseling in Connecticut does not include counseling of individual patients regarding the possibility for termination of a pregnancy, then its advertisement of pregnancy counseling services may be in violation of the law and subject to fines and penalties. Proceeding from this understanding of the law, a conservative activist group called Alliance Defending Freedom (ADF) has filed suit in federal court on behalf of a pregnancy services center called Care Net Pregnancy Resources Center of Southeastern Connecticut, arguing that the law jointly violates the organization's First Amendment free speech rights and free exercise of religion rights by compelling the organization to provide information on the option for patients to terminate their pregnancies, against the faith-based convictions of the organization, or face citations for each identified violation of the law. According to this argument, any effort by the state of Connecticut to command pregnancy services to conform to a state mandated model would result in a violation of the free exercise rights of organizations affiliated with religious groups morally opposed to abortion and, furthermore, would prohibit the effective public advertising of pregnancy services conforming to the particular moral standards advocated by such organizations thereby violating the freedom of (commercial) speech by such organizations.
When I heard about this case today, after having spent months in any ongoing project supporting state sovereignty, I realized that I would have to offer some commentary here. I further realized that the issues presented here are not simplistic in any sense. As argued, they involve the problem of free speech, especially speech advanced through commerce, and its limitations and, similarly, the rights of religious organizations to propagate their own spiritually and theologically inflected visions of the truth. Conversely, they raise questions on public health and under what conditions a general purpose (state) government can step in and argue that their interpretation regarding the demands of public health and safety satisfactorily transcend the rights of individuals. Finally, as implied, the case raises questions regarding the role of the United States Constitution of 1787, the federal judiciary as its interpretative agent, the state constitution of Connecticut, and the Connecticut state legislature and judiciary. That is to say, it represents another moment to raise the banner for a reconsideration of federalism as it currently exists. With this in mind, I want to advance on each of these issues in turn to render a definitive argument regarding Connecticut's actions, my own expectations for a federal judicial response, and my misgivings about any such reply to the actions of a sovereign state government.
I. When is Free Speech Not Freely Available
In general, free speech is not and has rarely in American history ever been regarded as an absolute. In accordance with the most commonly cited circumstance of unprotected speech first posited by Justice Oliver Wendell Holmes Jr. in his majority opinion in Schenck v. United States (249 U.S. 47 (1919)), "(the) most stringent protection of free speech would not protect a man in falsely (emphasis mine) shouting fire in a theater and causing a panic." Altogether too many people who make the argument that free speech won't protect you from shouting fire in a crowded theater omit the crucial qualification regarding the necessary falsehood of your exclamation. The potential for injuries from a panic notwithstanding, we would all probably agree that shouting fire (or, minimally, activating a fire alarm) in a populated indoor space under the circumstances that an actual fire is under way would not constitute an abuse of free speech rights. The issue of truth and falsehood in an act of communication is therefore rather critical and entirely problematic if we cannot completely disentangle truth from falsehood in a particular act of speech. Pointedly, if we are going to punish individuals who engage in mass communications that might be construed to be inflammatory or otherwise incite events that the government is empowered to prevent in accordance with some standard of truth or falsehood, then who gets to decide whether such communications are true or false?
In 1917, when Charles Schenck of the executive committee of the Socialist Party approved the distribution of fliers directed toward men slated for conscription into World War I, arguing that it was the right of every American citizen to resist the draft as a case of involuntary servitude otherwise prohibited by the Thirteenth Amendment, Schenck was charged with violation of the Espionage Act of 1917 for interference with war mobilization efforts. The extent to which military conscription implicates involuntary servitude, as defined by the Thirteenth Amendment, is a theoretic question, one which the Supreme Court of the United States, when it heard Schenck's case, appeared uninterested in entertaining. For the purposes of the Court, in unanimity, the governing principle in the case was Congress' capacity under Article I, Section 8 of the Constitution of 1787 to regulate the armed forces of the United States so as to facilitate war mobilization in accordance with the need to exercise an effective national defense and, secondarily, to pass such laws as might be necessary and proper to ensure that private citizens or foreign governmental agents would be prohibited from interfering with war mobilization. In these terms, Holmes' allusion to truth and falsehood in his casual suggestion of shouting fire might appear as something of a red herring. The real issue for Holmes involves the practical consequences of a particular act of political speech, the criterion at the center of his "clear and present danger" test, inaugurated in the Schenck opinion. If a particular act of speech, exercised in a particular context and issued through particular and effective media to reach a significant audience, has the practical effect of undermining particular functions exercised by the government, especially ones involving national security in a time of external military conflict, then the government has the authority to criminalize such acts of speech in the interest of defending national security. All of these particularities were notably important to Holmes in shaping his take on this "clear and present danger" standard in evaluating free speech even as the evolving majority of the Court, in the run up to the decision in Gitlow v. New York (268 U.S. 652 (1925)), increasingly came to view the standard as a rubber stamp on any effort by Congress or the state legislatures to run over the free speech rights of private citizens, especially when they involved the partisan arguments of radical leftists.
We live at a different moment in Constitutional jurisprudence than that which existed at the time of Schenck and Gitlow, when the federal judiciary saw fit to give free rein to governments to police free speech under standards of their own determination. Political speech now enjoys far more significant protections against the capacity of governments to criminalize free expression of controversial or otherwise incendiary ideas. On the other hand, there are certain spheres in which governments continue to exercise a substantial capacity to regulate speech. In this manner, we need to consider commercial speech, including the claims made by business entities to consumers with regard to their products. At least to some extent, governments retain a basic capacity to regulate commercial speech in order to protect their citizens from false advertising of particular products under particular circumstances where the consumption of such products might pose certain detrimental consequences to the health and safety of consumers. In these terms, the red herring of truth and falsehood from Holmes' Schenck decision reemerges in combination with the issue of social consequences from speech. When a business lies about the characteristics of a product and, as a result of their misrepresentation of the product, someone gets killed or injured while utilizing the product, then the government can justifiably step in to mandate that the business alter or cease its communications regarding the product, including, under certain circumstances, mandating the issuance of disclaimers on its use. In accordance with the standard enunciated by the Supreme Court in Central Hudson Gas & Electric Corporation v. Public Service Commission (447 U.S. 557 (1980)), the capacity of governments to step in and regulate commercial speech is not limitless, but commercial speech occupies a different station relative to political expression. Issues of truth and consequences relative to the interest of governments to pursue their own legitimate regulatory authority govern the capacity of governments to compel private businesses to alter their public communications. In acting against private commercial speech, the government must prove satisfactorily that it is satisfying a legitimate public purpose in regulating commercial speech, that its regulation of speech is rationally related to such public purposes, and that it is not overly expansive in prohibiting otherwise legal activities by private actors beyond the satisfaction of its specified purposes.
For its part, Connecticut has a law on the books, the Connecticut Unfair Trade Practices Act (CUTPA), regulating, among other things, the commercial speech of business entities operating within the state and prohibiting misrepresentation of products in advertising. Care Net Pregnancy Resources Center of Southeastern Connecticut, the organization represented by the litigant in the case of concern in this post, has apparently made the argument that CUTPA itself should be sufficiently broad in regulation of its activities within the state, including its advertising of services for pregnant women promising services directed toward their care. In proceeding beyond the broader regulatory mandate of CUTPA to specifically identify "limited services pregnancy centers" for detailed regulation of speech, Care Net has argued that Public Act 21-17 should be ruled unconstitutional, in part, because its declaratory purposes are unnecessarily specific and that, presumably, such specificity amounts to discrimination against a particular industry, related, in turn, to the transparent moral and religious motivations of providers in the industry. In these terms, Care Net and ADF are, in fact, arguing that the statute's definition of "limited services pregnancy centers" implicitly targets faith-based organizations and, thus, constitutes a particular infringement on the free exercise privileges of such organizations, free speech claims notwithstanding.
Reserving the free exercise claims made by the litigant in this case for the next section of this post, the Central Hudson case provides a clear line of inquiry for the federal courts to follow in evaluating Connecticut's actions to ask what legitimate public purpose might be served in identifying "limited services pregnancy centers" by the definition in Public Act 21-17 for special regulation of their capacity to advertise their services. Expressly, is there some particular threat to public health and safety, regulated by the government, posed by the operation of such centers? Are pregnant women, in Connecticut or elsewhere in areas of the country served by such centers, dying or suffering from serious and preventable health complications as a result of their use of services provided by "limited services pregnancy centers?" More minimally, with respect to compensation for services, are pregnant women, their health insurers, or other third party payers (e.g. the Medicaid system of Connecticut) being assessed charges for services rendered by "limited services pregnancy centers" that might otherwise be construed as redundant, superfluous, medically unnecessary, or fraudulent? Furthermore, is there something about the advertising efforts of such centers that might tend to mislead pregnant women into thinking that such facilities might offer more extensive obstetric and gynecological services, including provision of procedures to terminate unwanted pregnancies? Notably, are organizations like Care Net going out of their way in their advertising to intentionally mislead, "by statement or omission," the potential recipients of their services? More minimally, is there a reason that Connecticut legislators might have reasonably construed that the advertising of such centers intentionally misleads pregnant women in order to realize consequences that the government of Connecticut has the power to prevent?
If these are the criteria of determination on the Constitutionality of Public Act 21-17, then, at least in my view as an amateur scholar of Constitutional law, this is a law that isn't going to stay on Connecticut's law books for very long. It might be one thing to say that "limited services pregnancy centers" do not adequately advance the broader purposes of obstetric/gynecological health for female residents of the state, but that does not imply that such organizations should not possess a right to operate under the specific and limited terms in which they have sought to provide counseling services to pregnant women or that they should not be allowed to advertise the services they provide simply because they do not provide a full range of obstetric and gynecological services. At least in my own understanding of the circumstances involving the operation of such centers, it would be a steep climb for the Attorney General's Office of Connecticut to argue that "limited services pregnancy centers" pose a legitimate threat to the life or reproductive health of pregnant women, in Connecticut or anywhere else in the United States, simply by virtue of providing counseling against the termination of a pregnancy. Other health complications would have to be in play for particular patients, and staff at such centers would have to be complicit with licensed medical professionals in recommending to such patients not to terminate a pregnancy under conditions where taking the pregnancy to term would be likely, by determination of a preponderance of medical opinion, to endanger the life and/or reproductive health of the patient. Acknowledging my ignorance on these points, it seems a stretch to say that "limited services pregnancy centers" pose a legitimate threat to public health requiring regulatory relief. Approaching the more minimal question of costs, it might be legitimate to argue that the services provided by "limited services pregnancy centers" are medically unnecessary and, therefore, involve fraudulent extractions of funds from patients and/or third party payers, but, again, if I understand the nature of the services provided by organizations like Care Net, then there are legitimate medical procedures performed by such organizations, including pregnancy testing and some ultra-sound diagnostic procedures at some of their locations. To argue that, by itself, pregnancy counseling oriented toward preventing termination of an unwanted pregnancy is not a valid or legitimate medical procedure to be compensated under existing laws governing health insurance systems involves, in any case, state and federal standards governing health care financing. My presumption is that Care Net and organizations like it are knowledgeable enough to know what they can get away with in charging private health insurers or state Medicaid systems for the services they provide. Beyond third party payments, as with any other market-based service industry, patients of "limited services pregnancy centers" have an obligation to do their own homework in determining what they are actually paying for when they walk in the door. At least as far as I can discern, the government of Connecticut is overstepping its mandate in protecting consumers by implicitly arguing that this particular industry is so structured around fraudulent practices and misrepresentation of its services to recipients that its advertising of these services must be subjected to excess scrutiny by statute. I cannot see how Public Act 21-17 survives in the federal courts.
On its website, the national organization of Care Net identifies itself in these terms: "Founded in 1975, Care Net is a 501(c)3 non-profit organization that empowers women and men considering abortion to choose life for their unborn children and find abundant life in Christ." In my view, this just about says it all regarding the organization. Its pregnancy centers are not serious and comprehensive obstetric/gynecological resources for pregnant women. They are sites for pregnant women to go to for the purposes of being lectured on the negative consequences of abortion, both in physical/medical and spiritual terms. Any cursory glance of their online materials would make this point abundantly clear, notwithstanding the fact that at least some of their centers offer pregnancy testing, ultra-sound diagnostics, and counseling by licensed obstetric/gynecological professionals. On the other hand, the fact that they do not provide comprehensive obstetric and gynecological services, including abortion and contraceptive services, does not imply that, barring any other violations of public health and safety standards by their pregnancy service centers, they should not have a right to perform their own self-defined mission or to advertise it to pregnant women.
II. When are Sectarian Groups Entitled to Abrogate Medical Science on the Behalf of Their Conceptions of Morality
I could end this post simply by arguing that Public Act 21-17 is doomed in the federal courts, but the broader circumstances here prompt me to speculate further on the arguments advanced by Care Net and ADF against the government of Connecticut. In particular, it is worth asking, if only under the limited contemporary conditions framed by Constitutional law, whether a state government, empowered to protect public health and safety, can police the activities of sectarian religious groups when the morally-framed actions of such groups poses potentially adverse effects for public health. That is to say, beyond the limited claims made by ADF concerning violations of free commercial speech by the government of Connecticut against Care Net, do organizations like Care Net enjoy some special privilege, grounded in their free exercise rights, to dispense with conventional medical science, at the expense of public health, in order to practice faith-based conceptions of health care? Approaching this question, there is admittedly a lot to unpack and a range of conditionalities and considerations involving differences in religious beliefs, impacts on public health and on the lives and well being of individual patients, and the prerogatives of the government, acting at the behest of the state. Moreover, in the current moment as a pandemic of the unvaccinated rages across the country and around the world, the problem of religious exemptions to public health mandates weighs very heavily on legal conversations regarding the capacity of governments to guard public health against the rights of individuals to hold to their own conscientious and sincerely held beliefs. It should be clear, in this sense, that, like free speech, free exercise privileges are not absolute and inviolable rights against governmental interference. They are promises that the government should refrain from trampling on individual liberty if at all possible and if doing so in not indispensable to achieve critically important governmental functions.
We should first approach the very limited questions involved with Care Net and other "limited services pregnancy centers." Such centers counsel pregnant women on the physical/medical and, from a sectarian Christian perspective, moral consequences of abortion in an effort to convince such women that they would be doing God's work by carrying their fetus to term. In at least some cases, they also provide limited obstetric/gynecological services, including pregnancy testing, ultra-sound diagnostics, and evaluations by licensed obstetric/gynecological professionals. As I argued above, the government of Connecticut and state governments, more generally, have a public health obligation to ensure that when pregnant women approach an organization offering reproductive health care, limited or otherwise, they will not be exposing themselves to conditions that would threaten their lives or their broader health. Acknowledging that conditions might exist that would negate the free exercise privileges of sectarian organizations offering anti-abortion counseling for endangering the lives and health of pregnant women seeking their services, the span of such conditions is not particularly wide, and it would generally involve the extent to which such centers actually engage in obstetric/gynecological care.
If, for example, a faith-based "limited services pregnancy center" offered ultra-sound diagnostic services to clients, then the state public health licensing authority would certainly be apt to enforce certain requirements for maintenance of diagnostic equipment and training and licensing of professionals to utilize such equipment in order to ensure that clients/patients receive a thorough and unbiased evaluation of the images obtained from their diagnosis. Cursory examination of ultra-sound images might, in this manner, reveal a potential for complications from a pregnancy. If a licensed diagnostic staff member in a faith-based organization demonstrably exercised discretionary judgment to intentionally misrepresent diagnostic images that might suggest the existence of such complications or possible manifestations of genetic defects in the fetus in order to dissuade the client/patient from considering termination of the pregnancy, then, at least in my understanding, such a situation might merit increased public scrutiny of faith-based organizations providing obstetric/gynecological care to ensure that such patterns are not pervasive insofar as they might pose a danger to the life and health of clients/patients. Intentional misrepresentation of medical diagnostic analyses by licensed professionals is indefensible in relation to free exercise privileges. Any failure to disclose an easily identifiable life threatening condition to a client/patient revealed from an ultra-sound diagnosis would certainly be grounds to strip the diagnostic technician of his/her license and, if the client/patient was adversely affected as a result of the failure to diagnose her condition, it might be grounds for both civil liability and criminal prosecution. More generally, if pervasive patterns in the misrepresentation of diagnostic analyses could be substantiated for the organization as a whole, then it would certainly be grounds for the government to enforce stricter standards for licensing of organizations associated with particular sectarian, faith-based orientations toward female reproductive health. Again, it seems unlikely that an organization like Care Net would allow itself to succumb to such a fate for flagrantly dispensing with professional standards of pregnancy care, but, if Public Act 21-17 could enjoy any palpable threshold of a positive argument on its behalf as a necessary measure in defense of public health, then this example might suggest one even if such a defense of the law might be nearly impossible to substantiate.
Sectarian opposition to full female reproductive liberty and subsequent rejection of a range of reproductive health procedures and technologies represents a unique circumstance within the broader spectrum of possible controversies between public health authorities and sectarian groups. In general, public health authorities do not stand in a position, relative to the reproductive decisions of pregnant women, to enforce a mandate calling for the termination of a pregnancy against the wishes of the patient, even under conditions where taking a pregnancy to term is likely to result in the death of the patient, the fetus, or both. Such a decision resides overwhelmingly in the hands of the patient, under advisement of licensed medical professionals, where public health authorities maintain the prerogative to ensure that such professionals are not abusing their trust with the patient or the public as a whole. As such, sectarian opponents of full female reproductive liberty can rarely make the case that the government is infringing on the liberty of patients to act in conformity with their conscientious beliefs with regard to their reproductive health. Rather, the fight against full female reproductive liberty is overwhelmingly a struggle for sectarian groups to enforce their views on unwilling non-believers through legally restrictive access to female reproductive health.
Articulating this angle on the conflict between free exercise privileges and women's reproductive health, a critical consideration in the management of health care services concerns the ownership and maintenance of hospital/health care systems by various denominations of the Roman Catholic Church, a faith tradition committed to truncating female reproductive health options including both the termination of pregnancies and at least some methodologies of birth control. With regard to Connecticut's Public Act 21-17, it would seem reasonable to argue that no Connecticut Democratic law maker might have anticipated that the definition of "limited services pregnancy center" should be applied to Catholic hospitals like those of the St. Francis-Trinity health network, but the definitions stated within the statute would certainly apply to such hospital facilities that, factually, do not provide services to terminate unwanted pregnancies or counsel patients on the provision of such services. Provision and/or counseling of abortion services by medical professionals in such hospitals would directly contravene directives and policy statements issued by the United States Conference of Catholic Bishops (USCCB), as the central sectarian governing authority over these facilities (see USCCB, Secretariat of Pro-life Activities, "Abortion is not Healthcare," at: https://www.usccb.org/resources/Abortion%20is%20Not%20Healthcare%20final.pdf). In this respect, by codifying definitions of female reproductive healthcare, as a matter of state public health policy, to include abortion, Connecticut is directly setting itself up for a struggle, not merely against the storefront clinics of national pro-life organizations like Care Net, but against entire Catholic health systems that provide substantial quantities of diverse healthcare services to their communities, who might now be cited by the Attorney General of the state for particular advertising practices involving reproductive health. Again, I do not foresee that Public Act 21-17 is going to survive long enough for the St. Francis-Trinity network to be cited for violations in their advertising of birthing centers or prenatal care services, but it is worth considering that the Roman Catholic Church is a non-trivially-scaled provider of healthcare services across the United States, and its provision of these services are wholly governed by sectarian religious principles, upheld by free exercise privileges, that may, in certain circumstances, contradict state policies on the provision of healthcare. Diverse judicial struggles over the terms of the Patient Protection and Affordable Care Act of 2010 with respect to female reproductive health, waged to a significant degree in relation to the services afforded to employees of Catholic organizations, have, factually, eviscerated protections of the rights of female patients to choose particular healthcare options if they are under the employment of sectarian religious organizations. As such, the federal judiciary has seen fit to sacrifice rather liberal conceptions of female reproductive care rights statutorily embodied by Congress when they have manifestly contradicted with the free exercise privileges of both sectarian religious organizations (e.g. Catholic charities) and of private, for-profit employers with sincerely held sectarian religious convictions.
Approaching the relationship between the medical practices and sectarian beliefs from a still different direction, the courts, acting on the behalf of public health and in the interest of positive medical care for certain groups of individuals, have some history of intervening against groups holding particular sectarian beliefs across a range of medical procedures and technologies. A popularly cited example involves the opposition to blood transfusions among Jehovah's Witnesses and Christian Scientists. In diverse contexts, jurists have both held that enforcement of blood transfusions recommended by licensed medical professionals as necessary procedures to save the life of patients represent unconstitutional violations of the free exercise privileges of the patient and, conversely, that medical professionals are entitled to pursue conventionally accepted standards for the necessary use of blood transfusions against the religious objections of patients or their legal guardians. Evident questions here arise in cases involving minor children whose parents subscribe to beliefs that prohibit the use of medical procedures like blood transfusions, and the record is mixed regarding the capacity of the courts to step in and overrule the wishes of parents. Courts, acting to enforce the medical determinations of licensed practitioners, have also stepped in to order provision blood transfusions for individuals with a sectarian opposition to such procedures in circumstances where the death of the patient would impoverish or otherwise adversely affect the welfare of the patient's family. Medical necessity and the capacity of individual patients to offer contemporaneous, conscious, and informed consent for a medical procedure are critical considerations. In Werth v. Taylor (475 N.W.2d 426 (1991)), a Michigan appellate court ruled that an anesthesiologist who ordered a blood transfusion for an unconscious female Jehovah's Witness patient in the course of a surgical procedure to correct post-natal bleeding could not be held liable for battery against the patient, even insofar as the patient had signed a request that blood transfusions not be utilized, because, under the unique circumstances of medical necessity and patient incapacitation, a positive and contemporaneous solicitation of consent from the patient was not possible. Conversely, in Stamford Hospital v. Vega (236 Conn. 646 (1996)), under remarkably similar circumstances with the case in Werth, the Supreme Court of Connecticut ruled that medical practitioners were not entitled to violate the expressed religious convictions of a Jehovah's Witness patient under the Common law principle of bodily self-determination, without recourse to particular Constitutional claims. In effect, the defendant in Vega should have been entitled to die on an operating room table for lack of blood if that was her ethically-informed choice rather than allow medical professionals to perform a life-saving procedure, furthermore, without regard to the well being of the child to which she had just given birth. Conclusively, there is no uniform principle against which to adjudicate legal controversies involving blood transfusions for Jehovah's Witnesses or other, like-minded faith traditions. They are matters of individual circumstance, the specification of questions under review before the court, and subjects for application of the particular bodies of legal and Constitutional theory that trial and appellate courts apparently want to entertain. As a practical matter, however, a preference clearly exists for the enforcement of free exercise privileges whenever these come into conflict with the prerogatives of medical care for informed, conscious, and consenting adults.
Blood transfusions manifestly involve maintenance of the health or, more critically, the life of individual patients under the care of licensed medical professionals. When more broadly implicated issues of public health come into play, the capacity of the courts to sort out Constitutional claims gets muddied. In this regard, in the midst of a pandemic of the unvaccinated, I certainly have the matter of vaccinations against widely contagious pathogens in mind. The critical precedent of reference here is Jacobson v. Commonwealth of Massachusetts (197 U.S. 11 (1905)), in which the United States Supreme Court held that the police powers of states extended to the power to compel individuals within their jurisdictions to receive mandatory vaccinations in the course of a pandemic. In this case, the Reverend Henning Jacobson of Cambridge, Massachusetts was fined $5 for refusing a vaccination for smallpox. He appealed his citation, ultimately seeking relief in the federal judiciary on the grounds that an order for mandatory vaccination from the Commonwealth constituted an unreasonable and arbitrary imposition contrary to the due process rights of individuals under the Fourteenth Article of Amendment to the Constitution of 1787. The Court ultimately ruled, contrary to the Reverend Jacobson's arguments, that "in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect to his liberty may at times, under pressure of great dangers. be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." As such, the Supreme Court held that general purpose governments may compel their resident populations to accept such intrusions into the sanctity of their individual bodies when such invasions are warranted by the broader concerns of public health during epidemiological contagions. The Jacobson opinion has ever since constituted a primary judicial precedent in consideration of prophylactic measures enacted during pandemics, notwithstanding opposition grounded in particular sectarian belief systems. When, last week, the United States Supreme Court denied an appeal by litigants from the state of Maine in opposition to a state mandate for COVID-19 vaccinations of all health care employees in the state, it implicitly accepted the basic argument articulated in Jacobson (see John Does 1-3 et al. v. Janet T. Mills, Governor of Maine, et al. (595 U.S. __(2021)). Emphatically, state governments, as the default executors of public health and safety, are entitled, within limits, to conclude under what circumstances individuals may be compelled to surrender certain liberties with respect to their bodily integrity, under conditions where widely circulating pathogenic substances, responding favorably to inoculations validated by scientific testing, may be effectively restrained by widespread vaccination. Moreover, in specific relation to this case, such police powers cannot be palpably constrained by the sectarian objections of particular religious groups. The litigants in this case had expressly sought relief in the federal judiciary in relation to their free exercise rights under the First Amendment, arguing that the state of Maine had explicitly dispensed with religious exemptions to vaccination requirements even as they allowed for evaluation of certain medical exemptions. This particular set of conditions, and the fact that two justices appointed by President Trump joined the Chief Justice and the liberal members of the Court to reject the appeal, is extremely suggestive of the power evident in the particular circumstance of the COVID-19 pandemic and the Delta-variant surge. Notably, if sectarian arguments might have carried more weight in such an appeal under normal circumstances, then the Court could not reasonably reject the argument of the state of Maine that at this moment public health concerns were fundamental and grounded within their authority to act, even to the extent that their actions might contravene religious liberties.
Concluding, every instance in which sectarian objections to conventional public health guidelines or medical practices arises before the courts raises divergent sets of questions, reflecting a balancing act between the prerogatives of the state and medical professionals on the one hand and the Constitutional liberties of faith communities on the other. As I have presented the case here, the latter tend to take precedence unless broader social interests, such as those arising during epidemiological contagions, tip the balance in favor of the state and medical science. As such, it is fair to argue that faith communities enjoy a nearly boundless capacity to express truths that contradict science.
III. When is a General Purpose Government Entitled to Intervene in the Maintenance of Public Health and in the Provision of Medical Procedures by Licensed Medical Practitioners
The arguments that I have so far advanced in this document reside within the privileged space of contemporary Constitutional law. They articulate a record on how courts and, in particular, the federal judiciary have approached conflicts between sectarian organizations, medical professionals, and the governmental public health authorities over the free exercise of religion, access to certain procedures in female reproductive health, and maintenance of public health more generally. At this point, however, I am going to diverge from the accepted boundaries of Constitutional law to make arguments regarding how a system, centered on the sovereign exercise of general purpose governance by the states, would or should function if we reconsidered contemporary accepted conceptions of federalism in the application of protections emanating both from the United States Constitution of 1787 and from the constitutions of individual states. That is to say, I am going to articulate an argument regarding the role of state governments in public health and the provision of medical care on the assumption that we could transpose the states into a different Constitutional reality in which the existing corpus of Constitutional jurisprudence would be washed away in favor, perhaps, of institutions that predate the Constitution of 1787. Assuming we could do so, what are the limitations on the actions of state governments to intervene in public health and medicine that we would expect to enforce and who would be expected to enforce them? Expressed in these terms, we are embarking on broader questions of political theory, including the role of jurists as statutory and constitutional interpreters and enforcers against that of democratically elected legislators and executive administrations. And we are, furthermore, assessing the boundaries of democratic state action relative to the liberties of individuals to enjoy freedom from governmental interference in diverse aspects of their lives.
At this point, we could potentially proceed in a range of different directions, inquiring into the foundations of government, as an abstract principle and a subject of theory. Such a set of inquiries is liable to be too open and diffuse. As Americans, we have lived under a specific set of political institutions largely defined in reference to a foundational document, the United States Constitution of 1787, inclusive of its articles of amendment. Predating the Constitution, we have our heritage in the political constitution of England and, more generally, the body of the Common law, as it functioned in Anglo-American jurisprudence up to the time of the American Revolution and the resolution of our initial struggle to define a common course of legal and governmental structuration in the Constitution. Emphatically, we could look for answers to our inquiries on how to impose and enforce limitations on the power of government to deal with public health from other times and other places, as the Founders did when they delved into historical examples from Classical antiquity, but such examples would be foreign to the American experience as we have lived it since the ratification of the Constitution or, more minimally, since the federal judiciary began incorporating the prohibitions on governmental action emanating in the Bill of Rights on state governments through the Fourteenth Amendment. If we were suddenly to dispense with these institutions, then the logical starting place, one still frequently referenced by jurists looking outside of formal Constitutional standards, exists in the English Common law and the constitutional institutions of England and its colonies preceding the Constitution of 1787. In this regard, the record provided in William Blackstone's Commentaries on the Laws of England (1765-1769) still constitutes a central point of reference, as it did for the Founders and as it still does for jurists today concentrating in the ongoing articulation of the Common law.
At the outset, Blackstone's approach to law is not in any sense unproblematic. It proceeds from a conception of natural law and, in this regard, from assumptions on the human condition in the state of nature, an imaginary subject of theory operating contrary to any recourse to actual anthropological examination. On the other hand, it is an imaginary theoretic foundation that Blackstone held in common not only with his predecessors like Locke but also with Hamilton, Madison, Jefferson, and the remaining members of the Founding generation. In this regard, I am willing to take Blackstone's reasoning from the state of nature with a grain of salt in order to get to his well reasoned insights and to transplant them on a distinctly more fluid and unstable foundation, namely, that of democratic consensus. My point, in this regard, is that the theoretically stable foundations of past generations are gone, and we, as citizens in social formations grounded in democratic processes, must take the power of democracy continuously into our hands, however fortified by the well reasoned principles of past generations who believed in far more solid foundations of liberalism and the essential freedom of human beings to be and to act, individually and in common. A social contract, guaranteeing under law the freedoms of human beings in association is always the outcome of implicit consent grounded in universal consensus by all members of a social formation, whether that consensus is embodied in a piece of paper (e.g. the United States Constitution of 1787) or it is simply assumed to exist at the intersection of diverse legal precedents, as in the English Constitution such as it existed in Blackstone's time. Every American citizen has implicitly consented to the Constitution of 1787 as the contractual marker of belonging to the national social formation of the United States by virtue of their being born here or naturalized. A social contract does not need a preexisting state of nature to validate its relevance and purpose or its virtual, practical reality. Furthermore, a social contract does not need a piece of paper to validate its existence any more than two individuals who choose to form a family together need a piece of paper to validate their decision or the implicit character of their familial contract.
Having dispensed with my concerns regarding the theoretic imagination of natural law and social contracts, Blackstone reduces his consideration of the "absolute rights of man" to "three principle or primary articles: the right of personal security, the right of personal liberty, and the right of private property" (Blackstone, Book 1, Chapter 1, at: https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-101/). Elaborating, Blackstone reduces the right of personal security to the right to live (in its broadest sense, from the stirring of a fetus in the womb to natural death), the right to possess limbs with which to defend oneself, the right to the integrity of all other parts of the body, the right to preservation of personal health, and, by lesser degree, the right to defense of personal reputation. In regard to the first two components here, he further argues that the law affords every person pardon of homicide committed in their defense (self-defense) and that the law furnishes every person with the means suitable for the support of life and limb, inclusive of poverty relief for those incapable of providing for their personal existence by their own personal means. Proceeding from this point, it is worth a casual observation that Blackstone's approach to the structuration of English law and of governance in general decidedly favors association over personal libertarianism. That is to say, his argument regarding the furnishing of support for the life and limbs of individuals is framed around the need for social support for the indigent rather than the need of individuals to maintain adequate means for personal self-defense against the acquisitive envy of others. Emphatically, in speaking of the rights of Englishmen, he argues "(at) some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all." Blackstone is no solitary American frontiersman at the margins of civilization with only his rifle to defend himself - he is a conservative defender of social order through a reasonable use of government in the interest of the mutual well being of all members of the state. If, for Blackstone, the absolute rights of individuals are those that would obtain in the absence of society, then the existence of society mandates the existence of laws if only to recognize the absolute rights of individuals and the necessity/duty of the state and of each member of the state (i.e. the body politic) to respect and enforce the absolute rights of individuals against arbitrary injustices performed by the state or by private parties against the individual. In the absence of law, the state would possess no means to ensure the protection of absolute rights to individuals.
If we proceed from this basic understanding on the relationship between the individual and the body politic/Commonwealth, then, for Blackstone, the capacity of the state to infringe on the absolute rights of English citizens demands two conditionalities: the necessity to act in accordance with the acknowledged powers and responsibilities of the state relative to the body politic, and the pursuit of such ends by due process. That is, the state can only abridge individual liberties if it is strictly required to do so in order to achieve ends that it is lawfully empowered to achieve and, in doing so, it has followed a lawful process in the promulgation and/or enforcement of statutory law, given sufficient notice to affected individuals of their subjugation to the terms of the law, opportunity to contest such subjugation by legal recourse and adjudication of claims by the individual and the state, and, where necessary, remuneration by the state for the damages done to individual liberties by its actions. Emphatically, the state maintains the capacity to act in accordance with its responsibilities, through legislative, executive, and judicial functions, in ways that contravene the rights of individuals, but such actions must be constitutionally justified and must follow a defined process, through which individuals maintain the right to defend their persons, liberties, and property against the actions of the state. This is the Anglo-American understanding of constitutional law that obtained at the close of the Eighteenth century and, importantly, prior to the drafting of United States Constitution of 1787. It was the understanding of constitutional law that bounded the actions of every state government that emerged from the Revolution in lieu of the expressed terms of individual state constitutions drafted in the immediate aftermath of the Revolution or otherwise transferred over from the terms of colonial charters at the moment of independence from Great Britain. Similarly, the understood powers and responsibilities of the state relative to individual citizens and the larger body politic, subsequently articulated by Blackstone, formed the corpus of the lawful authority of general purpose governments to act in this period, only subsequently amended for the United States by the specific Constitutional limitations placed on the authority of state governments to act. In this respect, what does Blackstone have to say, in particular, about the authority of governments to protect public health and to regulate the actions of private parties engaged in the practice of physiological/medical treatment for individual citizens?
Blackstone commits several sections of Book 4 ("Public Wrongs") Chapter 13 ("Of Offenses Against the Public Health, and the Public Police or Economy") to the needs of maintaining public health. The themes considered here may not directly pertain to the specific purposes involved in Connecticut's regulation of "limited services pregnancy centers," but they, more minimally, establish a foundation to understand when general purpose governments are entitled to step in and regulate public health. In the first place, Blackstone comments on the use of quarantines against the spread of infectious diseases, noting the circumstances under which individuals afflicted with communicable diseases might be criminally charged with a felony for violating the imposition of a quarantine and, secondarily, that bodily injury caused by law enforcement officers in the enforcement of quarantines against afflicted parties would be fully indemnified against damages caused by their lawful actions. Beyond this, he notes the presence of various statutes governing the sale of adulterated or otherwise unwholesome articles of commerce, most notably food or drink, the consumption of which might be injurious to the health of individuals and, consequently, the public health more broadly construed. If these are the sole considerations against which we can make inferences regarding the powers of general purpose governments to act in defense of public health, then, by analogy to the particular circumstances faced by the state governments, both before the drafting of the US Constitution of 1787 and today, it seems relatively clear that general purpose governments possess a basic capacity to regulate the actions in social intercourse of individuals that might be apt to endanger the lives and/or health of others and to regulate commerce in such goods or services, the consumption of which might compromise the life or health of individuals.
The former power might grant government the authority to enact and enforce quarantines. It seems less clear that it should empower government to mandate vaccinations against communicable diseases. To the extent that governmental powers in the regulation of public health have, over time, been construed to include such a power, other considerations have variously intervened, like the enforcement of governmental authority in the provision of public education requiring the vaccination of school-aged children as a condition to enter public educational facilities. Likewise, regulation of commerce in goods and services in accordance with the power of government to maintain public health introduces the possibility of a wide range of public regulations otherwise abrogating the capacity of free individuals to consume articles of their choosing. More generally, the larger theme that emerges, especially from Blackstone's comments, remains that the burden of proof that regulation is necessary for the defense of public remains in the hands of government. If general purpose governments maintain a broader mandate to abrogate individual liberties in the defense of public health, then it still remains for government to prove that it was necessary to invoke particular actions. Emphatically, the power of government to regulate public health is never limitless relative to the rights of individuals. Rather, the remaining question involves the process through which the actions of general purpose governments might be called to account for incremental and/or gross violations of individual liberty.
IV. When is the Federal Judiciary Entitled to Step in and Overrule the Democratically Sanctioned Determinations of a General Purpose Government, Otherwise Constrained by Its Own Constitutionally Enforced Boundaries
Proceeding from the insight that general purpose governments, like the governments of the states, always have the authority to enact regulations in the interest of maintaining public health but that the burden of proof remains in the hands of government to establish justifications for abrogating individual liberties through its regulatory enactments, who, in fact, has the authority to question or otherwise impugn the justifications issued by general purpose governments for their regulations of public health? Emphatically, in the case of the United States' Constitutional system, when is the federal judiciary entitled to overrule the authority of state governments when they regulate public health within their own sovereign jurisdictions?
To begin, I would acknowledge that we are not dealing with the sort of constitutional structure that faced Blackstone in the Eighteenth century. For Blackstone, the English constitution represented a broad corpus of legal precedent, statutory enactments, royal pronouncement and compacts between the monarchy and Parliament, as a representative body acting on the behalf of the state/the English people. No actual, formally constructed document existed to define, in a single context, all of the powers and limitations of government. This absence of a formal, written constitution makes Blackstone's Commentaries such a relevant resource for the specification of governmental powers and of the rights of English citizens and, consequently, for the utilization of the American founders in defining the limitations that they would place on the authorities of a new federal government. Rather, in the American context, we have a written Constitutional structure defining the authorities and limitations conferred on the federal government, those reserved for the general purpose/state governments, and those formal limitations on the authority of the general purpose governments.
Moreover, we have fifty state constitutions, defining the specific limitations that general purpose governments have placed on themselves, on the behalf of their constituencies, and the structure through which the actions of the legislative and executive branches of government might be questioned and overruled within the state judiciaries. The latter systems are self-contained in the sense that they formally reference the limitations on general purpose governments written within documents constructed with the defined purpose of limiting powers that would otherwise be, in principle, limitless. General purpose governments are, by their nature, not constructed with limitations or for defined, special purposes that place limits on their broader authority to act on the behalf of their sovereign constituencies. In these terms, the states have never needed to write formal constitutions or otherwise place limits on the authority of their governments. The states are sovereign entities and sovereignty is limitless. The power of governments acting on the behalf of a sovereign is, in principle, as limitless. State constitutions define the terms of a formal compact between the state/the body of citizens and the governments to be established to act on their behalf, but, absent the specificity of the federal Constitutional system binding the states as a union of sovereign states, the sovereignty of the states has, in itself, no limit.
Acknowledging that the sovereignty of the states is, contextually, limited by the federal Constitutional system in order to ensure that the authorities conferred on the federal government do not conflict with the authorities otherwise reserved to the states (and that the states do not challenge the specified, enumerated powers of the federal government), general purpose governments acting on the behalf of their sovereign states invariably confront the authority of the federal Constitution through its principal enforcer, the federal judiciary. The federal judiciary indisputably has the authority to step in and invalidate actions promulgated by state governments when these actions conflict with the authorities granted to the federal government through the Constitution of 1787 or its articles of amendment. This authority emanates from the Supremacy Clause (Article VI, clause 2). The founders, to a substantial extent, recognized as much, as the language committed to arguments concerning the authority of the federal judiciary by Publius (mostly Hamilton) in The Federalist Papers and by other commentators in the course of the Constitutional debates attests. Conversely, beyond the Supremacy Clause, we have the Fourteenth Article of Amendment, which redefines certain terms in the relationship between the states and the federal Constitutional system, in turn, redefining the nature of citizenship relative to the Constitution. On the other hand, the particular ways in which this redefinition alters the sovereign nature of the states and expands the capacity of the Constitution to come into conflict with the actions of the states is not completely clear, and, over time, it has largely reflected the divergent partisan and ideological preferences of particular federal jurists and federal courts writ large. That is to say, it is a subject of legal theory transcending the particular written terms of the Constitution, even as it reflects back on the broader history of Constitutional interpretation and the longer history of the Anglo-American constitutional jurisprudence, including Blackstone's Commentaries.
The federal judiciary has consumed an impressive share of Fourteenth Amendment jurisprudence since its passage attempting to conceive of new and entirely invented individual rights, nowhere contained in the language of the Constitution of 1787 or any of its articles of amendment, against which to hold state government to account for violations. Thus, we have an extended series of judicial findings around the liberty of individual parties to enter into economic contracts, especially involving labor services, free of state interference. This chapter in the history of Constitutional jurisprudence only ended with the Judicial Revolution of 1937, but its legacy of judicial innovation kept moving forward beyond the federal judiciary's denunciation of efforts to undermine state economic regulation. The next important moment for us was the decision to intervene in state regulation of human reproduction. Thus, Connecticut was told that it could not intervene in the responsible use of birth control by married couples. And, further, Texas was told that, until the point of fetal viability outside of the womb, it could not prevent pregnant women from terminating their pregnancies.
In the aftermath of the Dobbs decision, it seems that we have, again, passed a threshold in a transition toward a new regime in Fourteenth Amendment jurisprudence in which the states will again be entitled to make their own decisions regarding the appropriate degree of regulation over human reproduction.
