Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, April 7, 2020

The Guardian of Life

“A just governing order must have ample power to cope with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social.... Elaborating on the common-good principle that no constitutional right to refuse vaccination exists [citing Jacobson v. Massachusetts, 197 U.S. 11 (1905)], constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private ‘rights.’”

Common-Good Constitutionalism (March 31, 2020)


“[T]he district court ignored the framework governing emergency public health measures.... See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). ‘[U]nder the pressure of great dangers,’ constitutional rights may be reasonably restricted ‘as the safety of the general public may demand.’ Id. at 29..... [T]he district court usurped the state’s authority to craft emergency health measures. Instead, the court substituted its own view of the efficacy of applying [the executive order] to abortion. But ‘[i]t is no part of the function of a court’ to decide which measures are ‘likely to be the most effective for the protection of the public against disease.’ Jacobson, 197 U.S. at 30.”

In re Abbott (CA5 April 7, 2020)




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