Romano Law Nurse Corner COVID-19 #28 Federal judge rules Pennsylvania's coronavirus orders are unconstitutional

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Romano Law Nurse Corner COVID-19 #28

Federal judge rules Pennsylvania's coronavirus orders are unconstitutional


On Monday September 14, 2020 a Federal Judge, appointed by President Trump, in Pennsylvania, ruled that Governor Tom Wolf and his Health Secretary’s coronavirus orders which “shut down the state” intended to prevent the spread of COVID-19 and protect the Citizens of Pennsylvania, was unconstitutional.  U.S. District Judge William Stickman IV, said that the orders violated the First Amendment right to freedom of assembly and due process and equal protection clauses of the 14th Amendment.

There have been a number of legal challenges to COVID-19 emergency orders based on “denying individual rights” such as restricting right to movement or to pursue a business or occupation, or restricts the right to engage in certain activities such as worship, speedy trial or political advocacy.  Other challenges have included a separation of powers argument that the legislature delegated too much authority to the governor or health officials. 

The Pennsylvania lawsuit, filed in May during the state’s “red phase” of coronavirus measures, was brought by 4 Pennsylvania Counties, Representative Mike Kelly, 3 state representatives and 7 businesses and their owners, challenging the ordered measures. The basis of the challenges was that the emergency order’s limitations on gatherings violates the First Amendment and that the closures and stay home orders violate both the Due process and Equal Protection Clauses of the 14th Amendment. There had been various prior unsuccessful legal challenges to Governor Wolf’s restrictions as well as similar others around the country. 

Judge Stickman initially noted that while the shut down and limitation efforts were undertaken with the good intention of addressing a public health emergency…the authority of government is not unfettered.  While he noted that the country is facing and will face many types of emergencies, the solution to a national crisis can never be permitted to supersede the commitment to individual liberty…he then went on to analyze the level of review under which to analyze the constitutional claims.

Simply put-when the constitutionality of a law/policy/order (COVID-19 emergency orders in this case) is challenged; both state and federal courts will commonly apply one of three levels of judicial scrutiny in analyzing the challenge. The three levels of scrutiny:

1- strict scrutiny where the government must prove there is a compelling state interest behind the challenged policy/law/order and that the policy/law/order is narrowly tailored to achieve its result.  The Supreme Court has determined that only legislation or government actions that discriminate on the basis of race, national origin, religion, and alienage should be analyzed on this basis. 

2- intermediate scrutiny is less demanding than strict scrutiny; the law/action/order must serve an important government objective and be substantially related to achieving the objective.  The Supreme Court has ruled that this level of scrutiny should be used whenever a law discriminates based on gender or sex, and sometimes extended to sexual orientation.

3- rational basis review is the lowest level of scrutiny applied to challenged laws, historically this has required very little for the law to be deemed constitutional.  The person challenging the law/order must prove either that the government has no legitimate interest in the law/policy/order or that there is no reasonable, rational link between the government’s interest and the law/policy/order.  This test is highly deferential to the law/policy/order and is used for

In this case, The Court first had to determine what type of scrutiny to apply to the constitutional claims, deciding that “ordinary canons of scrutiny are appropriate, rather than the lesser emergency regimen.” Judge Stickman went on to say that The Court will apply regular constitutional scrutiny to the issues in this case. Two considerations inform this decision—the ongoing and open-ended nature of the restrictions and the need for an independent judiciary to serve as a check on the exercise of emergency governmental power

Important to note that Judge Stickman relied heavily on the dissent by Justice Alito in Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al. (Full Opinion link in Sources) where the Supreme Court declined to lift a 50-person limit on religious services in Nevada. Here, Judge Stickman was concerned with the open-ended time frame of the restrictions and broad power used by the government which required a little more analysis or “check” by the judiciary, all mentioned in the dissent by Justice Alito.   

Further, Judge Stickman said that good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Further he said that liberties, once relinquished, are hard to recoup and that restrictions—while expedient in the face of an emergency situation may persist long after immediate danger has passed.  Thus…the job of courts is made more difficult by the delicate balancing they must undertake.   

Generally, the First Amendment does not prohibit all laws that impair religious freedom.  Judge Stickman decided that the applicable legal test is a rational basis review, the lowest level of scrutiny applied to challenged laws, highly deferential to the government or the law/policy.  As explained above, intermediate and strict scrutiny are harder and more demanding burdens to prove.

In summation, Judge Stickman ruled that the gathering limits fail intermediate scrutiny because they weren’t narrowly tailored to manage the pandemic’s effect. He noted that the order has no end date and includes a broad limitation on events, applying to any gathering of individuals on public or private property for any purpose—including social gatherings.

In terms of the stay at home order, Judge Stickman said they fail under both strict and intermediate scrutiny since Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.

In terms of the business closure order, Judge Stickman said it is unprecedented and runs afoul of established Due Process principles.  It violates the equal protection clause because it lacks a rational basis in choosing which businesses could remain open.  Judge Stickman noted that in choosing what businesses would remain open, they had an obligation to do so based on objective definitions and measurable criteria.  He found no such criteria. 

This case is one of hundreds of cases filed in federal and state courts across the U.S. challenging local coronavirus restrictions, some going all the way to the Supreme Court. In May, they declined to lift a 50-person limit on religious services in Nevada (Calvary Chapel, mentioned above) and rejected challenges to curbs on religious services in California and Illinois.  And, In Wisconsin, the State Supreme Court struck down a statewide stay at home order.  In Illinois, there are several challenges to the Governor's orders on the basis that he overstepped his authority in ordering them. 

In Pennsylvania, as a response to Judge Stickman’s ruling, Lyndsay Kensinger, a spokesperson for the governor's office, said the administration was "disappointed" by the ruling and will file an appeal.

Kensinger further noted that The actions taken by the administration were mirrored by governors across the country and saved, and continue to save lives in the absence of federal action. This decision is especially worrying as Pennsylvania and the rest of the country are likely to face a challenging time with the possible resurgence of COVID-19 and the flu in the fall and winter. She also clarified that the ruling was only related to the business closure order, the stay at home orders and the indoor and outdoor gathering limitations, not on some of the others orders, particularly the mandatory mask order. 

As we continue on this COVID-19 journey in unprecedented times, we urge everyone to do their part to help keep each other safe. 

We wear our masks and socially distance to protect you


Susan Ramsey is both an attorney and an RN. Ms. Ramsey’s professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing her Bachelor’s Degree, she was a counselor with the New Haven Rape Crisis Program. During her time with the Program, Ms. Ramsey counseled sexual assault survivors and performed seminars for local police departments, universities, and high schools. During her time working as a registered nurse, Ms. Ramsey decided to attend law school. Ms. Ramsey graduated from CUNY Law School, and has practiced law in several different State and Federal Courts.  She is a Florida Heath Care Risk Manager and a member of the Palm Beach County Sober Home Task Force.  Ms. Ramsey actively litigates cases involving catastrophic injuries and wrongful death on behalf of survivors, cases include injuries suffered by victims of professional negligence, product liability and medical negligence.


Amie Goldberg is both an attorney and a certified APRN.  After completing a Bachelor of Arts Degree at Whittier College, Ms. Goldberg attended nursing school at Emory University.  Ms. Goldberg’s professional experience started as a Registered Nurse at Egleston Children’s Hospital taking care of children with congenital heart disease. After a few years, she continued working in all areas of the hospital while attending Kennesaw State University on weekends in order to get her Master’s Degree in Nursing with a specialty of Primary Care Nurse Practitioner/Family Nurse Practitioner.  During her time as an APRN, Ms. Goldberg decided to attend law school at St. Thomas University in Miami, Florida.   Since graduating, she has mainly practiced in the areas of personal injury and worker’s compensation, fighting for the rights of injured people. Since joining the Romano Law Group, Ms. Goldberg has been the Director of the Opioid Litigation Project.  Ms. Goldberg also practices in the area of medical malpractice and nursing home negligence, bringing an inside perspective and knowledge to help get justice for our clients. 

Stay Safe,