Much has changed in science and law since 1905 when the Supreme Court upheld Massachusetts’s mandate against an epidemic “that imperiled an entire population.” The fatality rate from smallpox was 30%; COVID-19’s is closer to .2%. The Task Force misreads the law, imagining a blank check for states to impose mandates under police powers. But in fact states must meet criteria of necessity, proportionality, harm avoidance and non-discrimination. Precedents require courts to prevent arbitrary and oppressive mandates like the one the Task Force proposes.
NYSBA should adopt a more sensible and cautious approach at its general June 13 meeting. Consent, not coercion, is the only way to ensure public health.
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