public health, rational basis, pandemic
This article re-examines the "focused scrutiny" standard proposed by Prof. Scott Burris in 1989 and argues for its application particularly during an infectious disease emergency such as the COVID-19 pandemic. Focused scrutiny seeks to tie judicial review of the constitutionality of public health measures closely to the facts of the particular disease and to evidence of the efficacy of each governmental action to prevent the spread of that disease, even when courts adopt rational basis testing.
Gatter, Robert A., Reviving Focused Scrutiny in the Constitutional Review of Public Health Measures (September 10, 2020). Washington University Journal of Law and Policy, Forthcoming, Saint Louis U. Legal Studies Research Paper No. 2020-32, Available at http://dx.doi.org/10.2139/ssrn.3690125