THE QUEEN v. DUDLEY AND STEPHENS

December 9, 1884

[ … ]

At the trial[ … ], the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated

“that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That2 on the twelfth day the remains the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24 th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning, the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men." But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment.”

[ … ]

LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.

[ … ] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they would probably not have survived," and that “the boy being in a much weaker condition was likely to have died before them." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal consequence which follows from the facts which they have found.

[ … ]

It was further objected that[ … ] there was no jurisdiction in the Court at Exeter to try these prisoners. But [ … ]17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section it is enacted as follows: -- “All offences against property or person committed in or at any place either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England.” We are all therefore of opinion that this objection likewise must be overruled.

There remains to be considered the real question in the case whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. [ … ] First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. [ … ]

It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that only which has always been and is now considered a justification. [ … ] Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the Crown, i. 478.)

But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he deals with the exemption created by compulsion or necessity he thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)

But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that herein England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?

Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. [ ... ] The American case cited by my Brother Stephen in his Digest [ ... ] in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. [ ... ]

The one real authority of former time is Lord Bacon, who[ … ] lays down the law as follows:" Necessity carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable."[ … ] Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day.

[ … ]

Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or 'what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" –

"So spake the Fiend, and with necessity

The tyrant's plea, excused his devilish deeds."

It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.^[2]

[The COURT then proceeded to pass sentence of death upon the prisoners.^[3]]

[ … ]

NOTES

[ … ]

[2] My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: "If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving."-- C.

[3] This sentence was afterwards commuted by the Crown to six months imprisonment.

Supreme Court of the United States

Plessy v. Ferguson

163 U.S. 537, May 18, 1896

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.

Argued April 13, 1896.

This was a petition originally filed in the Supreme Court of the State against the Hon. John H. Ferguson, judge of the criminal District Court for the parish of Orleans, and setting forth in substance the following facts:

That petitioner was a citizen of the' United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that upon petitioner’s refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and Hurried off to and imprisoned in the parish jail of *539New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided.

That petitioner was subsequently brought before the recorder of the city for preliminary examination and committed for trial to the criminal District Court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the Constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the General Assembly, to which the district attorney, on behalf of the State, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal District Court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue and he made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the Supreme Court.

To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to ad*540mit that he was in any sense or in any proportion a colored man.

The case coming on for a hearing before the Supreme Court, that court was of opinion that the law under which the prosecution was had was constitutional, and denied the relief prayed for by the petitioner. Whereupon petitioner prayed for a writ of error from this court which was allowed by the Chief Justice of the Supreme Court of Louisiana.

Mr. Justice Brown, after stating the case, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890. providing for separate railway carriages for the white and colored races. Acts 1890, No. Ill, p. 152.

The first section of the statute enacts “ that all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to.”

By the second section it was enacted “ that the officers of such passenger trains shall have power and are hereby required *541to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.

The third section provides penalties for the refusal or neglect of the officers, directors, conductors and employes of railway companies to comply with the act, with a proviso that “ nothing in this act shall be construed as applying to nurses attending children of the other race. The fourth section is immaterial.

The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven eighths Caucasian and one eighth African" blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate *542said coach and take a seat in another assigned to persons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.

1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude — a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services.

A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or -enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

*544The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equalitj1, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of eases. Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gilson v. Mississippi, 162 U. S. 565. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of *546color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company’s providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown, 17 Wall. 445.

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U. S. 587, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger ears by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, 66 Mississippi,. 662, had held that the statute applied solely to commerce within the State, and, that being the construction of the state statute by its highest court, was accepted as conclusive.

While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act, that denies to the passenger compensa*549tion in damages for a refusal to receive him into the coach in which he properly belongs, is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State’s attorney, that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white, and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property> in the same sense that a right of action, or of inheritance, is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men’s houses to be painted white, and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side *550of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with, reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances *551is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voíuntáry consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N. Y. 438, 448, “this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed.” Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly *552or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

The judgment of the court below is, therefore,

Affirmed.

Mr. Justice Harlan, dissenting.

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act, “ white and colored races,” necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise “ of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.” Mr. Justice Strong, delivering the judgment of *554this court in Olcott v. The Supervisors, 16 Wall. 678, 694, said: “ That railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State’s right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Vet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land'for,the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use ? ” So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: “ Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the State.” So, in Inhabitants of Worcester v. Western Railroad Corporation, 4 Met. 564: “ The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement.” It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public.”

In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the *555race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States.

The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of-the United States and of the State wherein they reside,” and that “ no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil lights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that “ the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”

It was said in argument that the statute of Louisiana does *557not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Bailroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. “Personal liberty,” it has been well said, “ consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” 1 Bl. Com. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Bred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that at the time of the adoption of the Constitution they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant *560race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.” 19 How. 393, 40á. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race — a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by mekns of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that' the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

I am of opinion that the statute of Louisiana is-inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the *564People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Social distancing / face covering regulations in NY

N.Y. Comp. Codes Rules & Regs. tit. 10, §§ 66-3.2, 66-3.3, 66-3.5

Section 66-3.2 Face-Coverings

(a)  Any person who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or face-covering when in a public place and unable to maintain, or when not maintaining, social distance. 

(b) Any paying passenger of a public or private transportation carrier or other for-hire vehicle, who is over age two and able to medically tolerate a face covering, shall wear a mask or face-covering over the nose and mouth during any such trip; any employee of such public or private transportation carrier who is operating such public or private transport, shall likewise wear a mask or face-covering which covers the nose and mouth while there are any paying passengers in such vehicle.

(c) Any employee who is present in the workplace shall be provided and shall wear a mask or face-covering when in direct contact with customers or members of the public, or when unable to maintain social distance. Businesses must provide, at their expense, such face coverings for their employees.

(d) Business operators and building owners, and those authorized on their behalf shall deny admittance to any person who fails to comply with this section and shall require or compel such persons’ removal. Provided, however, that this regulation shall be applied in a manner consistent with the federal American with Disabilities Act, New York State or New York City Human Rights Law, and any other applicable provision of law.

(e) For purposes of this section:

(i) Face-coverings shall include, but are not limited to, cloth masks (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.

(ii) A person shall be considered as maintaining social distancing when keeping at least six feet distance between themselves and any other persons, other than members of such persons’ household.

66-3.3 Non-essential gatherings

(a) There shall be no non-essential gatherings of greater than ten individuals for any reason at any location in the state, including but not limited to parties, celebrations or other social events. This restriction may be modified by any Executive Order issued pursuant to Executive Law Section 28 and 29-A implementing the phased re-opening of New York businesses and the relaxation of social distancing rules by region.

(b) No person, business, or other entity, shall encourage or promote any non-essential gathering on any public property including, but not limited to, streets, sidewalks, parking lots, parks, playgrounds, or beaches, that would violate subdivision (a) of this section.

(c) All non-essential gatherings that are permitted pursuant to this section shall comply with social distancing protocols and cleaning and disinfection guidelines issued by the Department.

(d) Subdivision (a) of this section shall not apply to any essential business, as defined by the New York State Department of Economic Development d/b/a Empire State Development (ESD), pursuant to the authority provided in Executive 202.6, or as further defined in this Subpart.

66-3.5 Penalties

A violation of any provision of this Subpart is subject to all civil and criminal penalties as provided for by law. Individuals who violate this Subpart are subject to a maximum fine of $1,000 for each violation. For purposes of civil penalties, each day that there is a non-essential gathering or that a business operates in a manner inconsistent with the Subpart shall constitute a separate violation under this Subpart.

N.Y. Pub. Health L. § 12-b (McKinney)

A person who willfully violates any provision of this chapter, or any regulation lawfully made or established by any public officer or board under authority of this chapter, the punishment for violating which is not otherwise prescribed by this chapter or any other law, is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dollars or by both. [Murray: you should assume that all of the regulations listed above were “established by [a] public officer or board under authority of this chapter.”]

CITY OF CAMBRIDGE

SECOND AMENDED TEMPORARY EMERGENCY ORDER REQUIRING THE WEARING OF MASKS OR CLOTH FACE COVERINGS IN ALL PUBLIC PLACES, BUSINESSES, AND IN COMMON AREAS OF RESIDENTIAL BUILDINGS 

AMENDED ON JUNE 23, 2020 

This Amended Emergency Order replaces and supersedes all prior versions.

WHEREAS, the 2019 Novel Coronavirus ("COVID-19") is a highly contagious and potentially fatal respiratory disease, the prevalence of which is increasing rapidly throughout the world, inclusive of the United States and the Commonwealth of Massachusetts; and 

WHEREAS, on March 10, 2020, the Governor of the Commonwealth of Massachusetts issued a Declaration of a State of Emergency to Respond to COVID-19; and 

WHEREAS, on March 11, 2020, the World Health Organization designated the COVID-19 outbreak a Pandemic Health Emergency; and 

WHEREAS, on March 13, 2020, the President of the United States announced a national declaration of emergency; and 

WHEREAS, on March 15, 2020, Governor Baker issued an emergency Order (the "March 15, 2020 Order") to respond to the evolving COVID-19 public health emergency impacting the Commonwealth, including prohibitions on public gatherings of twenty-five or more people and prohibiting on-premises consumption of food or drink at bars and restaurants from March 17, 2020 until April 6, 2020; and 

WHEREAS, on March 23, 2020, Governor Baker issued an Order (the "March 23, 2020 Executive Order") limiting gatherings of more than ten people in the Commonwealth and ordering businesses, other than those that provide COVID-19 essential services as defined in the March 23, 2020 Executive Order as amended ("COVID-19 Essential Businesses"), to close their brick and mortar operations and operate only by remote means; and 

WHER􀀃AS, the Cambridge Commissioner of Public Health and the Cambridge City Manager, in consultation with the Massachusetts Department of Public Health have determined that COVID-19 presents a major disaster which poses an immediate threat to public health, safety, and general welfare of people residing both within and outside of the City of Cambridge, and on March 19, 2020, the Cambridge Commissioner of Public Health and Cambridge City Manager declared that a state of emergency exists in the City of Cambridge (the "State of Emergency"); and 

WHEREAS, on March 31, 2020, Governor Baker issued an Order extending the March 23, 2020 Executive Order closing of businesses, other than those that provide COVID-19 essential services, to May 4, 2020; and 

WHEREAS, on April 10, 2020, the Massachusetts Department of Public Health issued an Advisory stating that the wearing of a face covering may help prevent the spread of COVID-19 by individuals who are infected, including those who show no signs of illness; and 

WHEREAS, on April 28, 2020, Governor Baker issued an Order extending the May 4, 2020 Executive Order closing of businesses, other than those that provide COVID-19 essential services, to May 18, 2020; 

WHEREAS, on May 1, 2020, Governor Baker issued an Executive Order requiring any person over the age of two to cover their mouth and nose with a mask or cloth face covering in places open to the public in the Commonwealth, whether indoor or outdoor, at all times when such person is unable or does not maintain a distance of six feet from others, except where a person is unable to wear a mask or cloth face covering due to a medical condition or where the person is exempted under Massachusetts Department of Public Health Guidance; and 

WHEREAS, on May 18, 2020, Governor Baker's Administration released a plan entitled "Reopening Massachusetts" pursuant to which previous restrictions on business operations will be relaxed in phases, with Phase 1 beginning on Monday, May 18, 2020; 

WHEREAS, on June 6, 2020 Governor Baker issued an Order allowing Stage 1 of Phase 11, which includes outdoor dining at restaurants to commence on June 8, 2020, and thereafter, issued an announcement that Stage 2 of Phase 11, which includes indoor dining at restaurants, shall commence on June 22, 2020; 

NOW THEREFORE, the Cambridge Commissioner of Public Health and the City Manager hereby order (the "Emergency Order") as follows: 

1. This Paragraph shall apply, without limitation, when on, in, or about sidewalks, streets, parks, playgrounds, plazas, bus stops, non-residential parking lots and garages, and any other outdoor area or non-residential parking facility which is open and accessible to the general public ("Public Areas"). Effective immediately, each person age five years of age or older shall wear a mask or cloth face coverfng which covers both the mouth and nose at all times when in Public Areas, except that during the summer months (i.e., from the effective date of this Emergency Order until midnight (12 a.m.) on September 22, 2020} masks or cloth face coverings may be temporarily removed when outdoors when a physical distance of at least six (6) feet from others can be maintained at all times.
2. Any person five years of age or older, including employees of businesses, entering any business open to the public, including, without limitation, grocery stores, supermarkets, pharmacies, laundromats, dry cleaners, hardware stores, restaurants, cafes or similar establishments where prepared foods, meals or beverages may be purchased, local government buildings, commercial office buildings, industrial buildings, construction sites, repair garages, and equipment or vehicle storage yards and garage bays (hereinafter, "Places of Business"} shall wear a mask or a cloth face covering which covers both the mouth and nose prior to entering such Place of Business and continuously during the time the person is in the Place of Business. Employees of Places of Business may remove masks or cloth face coverings in circumstances where a distance of at least six feet from others will be maintained at all times, such as, when working alone in an office, room, cubicle, work station, or other locations in a Place of Business where it is possible for the employee to maintain a distance of at least six feet from others at all times. Customers of restaurants, cafes, and other establishments where food and beverages are served may temporarily remove masks or cloth face coverings when dining inside or in an outdoor dining area of such restaurant, cafe, or other establishment where food and beverages are served for on-premise consumption. All Places of Business shall post signage at entrances to buildings informing the public that masks or cloth face coverings must be worn at all times within or about the premises of the Place of Business except for temporary removal when dining.
3. Employees who recovered from symptoms of COVID-19 shall not return to work until they have met the CDC's guidelines for ending home isolation posted at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/ending­ isolation.html.
4. Places of Businesses shall follow the Massachusetts Department of Public Health's "Safety Practices for Non­-Healthcare Essential Service Workers Who May Have Had Exposure to a Person with Suspected or ConfirmedCOVID-19" issued on April 14, 2020 and posted at: https://www.mass.gov/doc/non-healthcare-essential-service­worker-covid-19-exposure-guidance/download. All Places of Business shall follow the Commonwealth's Guidance posted at "Reopening: Mandatory Safety Standards for Workplaces" posted at: https://www.mass.gov/info-details/reopening-mandatory-safety-standards-for-workplaces and the Sector-Specific Protocols and Best Practices posted on the Commonwealth's web page at: https://www.mass.gov/info-details/reopening­massachusetts#sector-specific-protocols-and-best-practices-. All Places of Business which are Retail Businesses shall follow the Commonwealth's Sector-Specific Guidance updated on June 19, 2020 and posted at: https://www.mass.gov/doc/sector-specific-workplace-safety-standards-phase-ii-step-2-for-retail-businesses-to­address/. 
5. In residential buildings consisting of at least two dwelling units ("Residential Buildings"), any person entering without limitation, any lobby, hallway, elevator, stairwell, laundry room, garage or parking lot, walkway, yard and other common outdoor areas, or any other indoor or outdoor areas in or about a Residential Building which are accessible to more than one dwelling unit (collectively, "Common Areas") of that Residential Building shall maintain a distance of at least six feet from any other person in said Common Areas, or if a distance of at least six feet cannot be maintained, shall wear a mask or cloth face covering which covers both the mouth and nose at all times while in such Common areas, except that these requirements shall not apply to any person under the age of two years old, and individuals who are in the company of others who live in the same household. Individuals who are caring for a child or a disabled or elderly person and do not share the same household with such child or disabled or elderly person shall be required to wear a mask or cloth face covering while caring for such person, but shall not be required to maintain a distance of six feet from such person. Residential Buildings shall post signage at entrances and in or about Common Areas informing all residents and other individuals that the above requirements must be met at all times while in or about such Common Areas.
6. The Cambridge Public Health Commission may issue guidance consistent with the provisions of this Emergency Order.

This Emergency Order shall not apply to anyone under the age of two years old, anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the mask without assistance, anyone with a disability or medical condition for whom wearing a mask is not recommended by their healthcare professional, and/or any other person exempted by Massachusetts Department of Public Health guidelines. 

This Emergency Order shall take effect at midnight (12:00 AM) on Wednesday, June 24, 2020 and shall remain in effect until further notice or until the declaration of a State of Emergency in the City has been rescinded. 

Any person found to be in violation of this Emergency Order may be issued a warning or may be issued a violation notice with a fine of three hundred dollars ($300). The person to whom a violation notice has been issued pursuant to this Emergency Order may pay the fine within 21 days of the date the violation notice was served, or within 21 days of the date the violation notice was served, may contest the matter by requesting a noncriminal hearing by mailing a copy of the violation notice to: Clerk Magistrate, Cambridge District Court, 4040 Mystic Valley Parkway, Medford, MA 02155. G. L c. 111 §§ 30, 95-105, and 122; 310 CMR 11.05 et seq., 105 CMR 300.200; St. 1950, c. 639; G. L. c. 40, § 21D; and Cambridge Municipal Code c. 1.24, § 1.24.030. 

Dated: June 23, 2020 

How social distancing fines are working, or not working, across America 

By Erica Orden, CNN 

Updated 9:56 AM ET, Sat April 11, 2020 

Miami Police patrol at the closed Miami Beach on March 19, 2020. 

New York (CNN)A typical spring afternoon in Brooklyn's sprawling Prospect Park brings a crush of joggers, picnickers and frisbee-throwers. In recent weeks, the park has seen an influx of something else: slow-crawling New York Police Department vehicles blaring 

a social distancing warning and flashing an accompanying sign saying "Do your part -- stay six feet apart." 

But in Brooklyn and in communities across America, verbal warnings are just the start of police enforcement of social distancing policies to curtail the spread of 

coronavirus ravaging the country. Since late March, New York City has authorized NYPD officers and other authorities to hand out fines up to $500 to New Yorkers who fail to disperse from gatherings after being ordered to do so. 

In Florida, authorities arrested a pastor for continuing to hold large services, charging him with two second-degree misdemeanors: unlawful assembly and violation of public health emergency rules. 

And in Kentucky, several people have been placed under house arrest with ankle monitors after they refused to stay home despite coming in contact with coronavirus patients. 

As public officials across America coalesce around the message that people need to remain at home and stop contact with anyone outside their household in hopes of curbing the spread of the virus, more communities are adopting tactics that empower local authorities to issue fines and impose other penalties on those who refuse. Forty-four states have imposed stay-at-home orders. 

But while local and state officials say such measures are necessary to force people into compliance, some civil liberties advocates are concerned the enforcement efforts will go too far, running the risk of disproportionately impacting minority or poor communities and raising the threat of financial penalties at a time when many are out of work. Meanwhile, police themselves appear wary of implementing fines and arrests, given that each new encounter with the public could expose them to the virus while potentially fraying relations with communities already on edge. 

"Social distancing is absolutely a critical measure, but our knee-jerk reaction to problems as a society tends to be criminalization, and it's just not the answer, especially here," said Maryanne Kaishian, a senior staff attorney at the Brooklyn Defender Services. 

"Marginalized people will be the most impacted, because we know based on years of data that other low-level offenses disproportionately target black and low-income people," she said. Poorer neighborhoods tend to have a heavier police presence to begin with, she pointed out, and for lower-income and immigrant families living in multi-generational households, there may be more of an incentive to congregate outside the home. 

Others worry that an escalation in enforcement could lead to even greater exposure to coronavirus for both police and the public. Encounters could bring police into contact with sick people or contaminated sites while resulting in arrests that land people in jail, where outbreaks of coronavirus have occurred around the country. 

"In some ways it's ironic that an arrest could be a result [of these policies], because we're working to rapidly decrease jail populations at this time, and arresting people and incarcerating only puts them at increased risk," said Leah Pope, senior research fellow in the policing program at the Vera Institute of Justice, a nonprofit research and policy organization. 

Police in many communities appear to have resisted issuing fines 

Criminal justice experts, however, say that the measures are both reasonable, given the circumstances, and not all that unusual. Curfews and other measures were put in place in the United States in the name of protecting the public during Hurricane Katrina, Superstorm Sandy and amid protests in Ferguson, Mo., though nothing on this scale in a century 

"This is really, really important. This is our health and people's lives at stake, and it's not universally understood that socially distancing is a matter of life and death. So I'm not philosophically opposed to it at all," said Jeremy Travis, former president of the John Jay College of Criminal Justice at the City University of New York and a former deputy commissioner for legal matters at the NYPD. 

"It's not unusual for the police or other enforcement agencies to have the power to enforce health regulations," he added, giving as an example the enforcement of kitchen standards at restaurants. During the Spanish flu epidemic of 1918 -- the closest comparison to the current pandemic -- police performed comparable enforcement, making today's efforts 

"not conceptually all that novel." 

As to whether enforcement on the ground might disproportionately impact certain communities, Travis said, "That's not a reason not to do it. That's just a reason to watch the implementation really carefully." 

And despite concerns about the potential for social distancing policies to run afoul of civil liberties, in practice so far police in many communities appear to have resisted issuing fines, arrests and other punishments, using them only as a last resort, even as in some cases government officials have encouraged them to be more aggressive. 

"Certainly voluntary compliance is at the top of the list, because the last thing you want to do is engage in enforcement activities," said Benjamin Tucker, NYPD's first deputy commissioner said Thursday during an online panel hosted by the Council on Criminal Justice. "We have 36,000 officers plus, but we have 8.6 million people, and so there's no way you can enforce your way out of this. You've got to get voluntary compliance." 

"When people ask about the enforcement aspect, I tell them that you really shouldn't get to that point," said Democratic Mayor Jane Castor of Tampa, Florida. 

In San Francisco, police have issued citations to three individuals since the social distancing guidelines went into effect, but in two of those instances the health order violations came in addition to other offenses, according to officials. In one case, for example, police issued a citation to a man for trespassing as the primary offense, with a violation of the California Health and Safety Code added on top of the initial citation. Chuck Wexler, executive director of the Police Executive Research Forum, a Washington DC-based police think tank, said he believes police are trying to avoid antagonizing people.

"Most of the police chiefs I know are doing everything they can not to piss off the community," he said. "People are stressed already. The last thing they want to do is fine people." 

"This is not a police role," Wexler added. "This is a public health emergency role. This is a role to help the community. This is the time when the concepts of community policing really have to be operationalized. This is where police can play a huge role in allaying people's fears and educating people." 

US Capitol police officers patrol near the Lincoln Memorial and National Mall due to concerns with the spread of the coronavirus. 

'Everyone needs to police themselves' 

But some public officials have stressed they believe enforcement has been too meek. Earlier this week, New York Gov. Andrew Cuomo, a Democrat who had previously signaled he didn't believe police were adequately enforcing social distancing policies, said he believed the tactics should be "more aggressive," and raised the fine for violating state directives to $1,000. 

"There has been a laxness in social distancing, especially during this past weekend, that is just wholly unacceptable," he said at a news conference, as pictures of sunny, crowded parks flashed across his PowerPoint presentation. 

Some locations are acting more forcefully. On Monday alone, the police department's COVID-19 task force in Newark, New Jersey, issued 38 summonses for violations of the coronavirus emergency orders. 

On April 5, police in Camden, New Jersey, charged a woman with fourth-degree causing or risking widespread injury, fourth-degree contempt, disorderly conduct, and failure to disperse after they broke up a large group of people gathered outside a house, but she refused to leave. "I don't have to go anywhere," she allegedly said, according to officials, and then began to cough, telling officers she had coronavirus. 

And that same day, police charged a man in Seaside Park, New Jersey, with violating the emergency orders after they found him hosting 15 to 20 people in the backyard of his house. 

One man who received a summons after attending a funeral in Lakewood, New Jersey, said in a brief interview that he believed the state's Democratic governor, Phil Murphy, had overstepped his authority. "This was harassment by the governor," Alexander Ellison said. "I didn't break the law." 

He added, "The law is to protect the spread, but they have to be fair. What the governor is doing is not fair." 

In New York City, the epicenter of the pandemic, however, police appear to have been tentative about issuing summonses, doling out the 13 they had issued as of last week mainly to people gathered in bars, with none going to anyone in a public space. 

In all cases, said NYPD Chief of Patrol Fausto Pichardo, police had given an initial warning to those gathered. 

"The reason why people were arrested and people were summonsed is because these are locations where we've had to come back and educate the first time and warn. And people did not heed our advice, so of course we're going to take action," he said. 

"Our overarching goal is to get compliance for everyone in the city, regardless of what color they are, so that we don't have to take the enforcement action," Pichardo said. "This is not about the NYPD, this is about every single New Yorker and every single person in this country and frankly the world everyone needs to step up. Everyone needs to police themselves." 

CNN's Pervaiz Shallwani and Mark Morales contributed to this story. 

JUSTICE ALITO delivered the opinion of the Court.

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just asstrongly that any regulation of abortion invades a woman’sright to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, ... [holding that the Constitution confers a broad right to obtain an abortion prior to third-trimester 'viability' of the fetus]. ... Eventually, in Planned Parenthood of Southeastern Pa. v. Casey (1992), the Court revisited Roe, but ... the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to ... Roe’s “central holding.” ...

Before us now is ... [a] state law [banning pre-viability abortions]. The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as “viable” outside the womb. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. ...

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such rightis implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. ...

The underlying theory on which this argument rests—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. ... The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.

In deciding whether a right falls into either of these categories, the Court has long asked whether the right is“deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” ... [But] In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty thatAmericans should enjoy. ...

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. ...

In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. ... The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.

***

JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting.

For half a century, Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life. ... Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.

Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The Court knew that Americans hold profoundly different views about the “moral[ity]” of “terminating a pregnancy, even in its earliest stage.” And the Court recognized that “the State has legitimate interests from the outset of the pregnancy in protecting” the “life of the fetus that may become a child.” So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the government) thought proper, in light of all the circumstances and complexities of her own life. 

Today, the Court discards that balance. ... The Mississippi law at issue here bars abortionsafter the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. ... States may even argue that aprohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.

Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so. ...

The majority’s cavalier approach to overturning this Court’s precedents. Stare decisis is the Latin phrase for a foundation stone of the rule of law: that things decided should stay decided unless there is a very good reason for change. It is a doctrine of judicial modesty and humility. Those qualities are not evident in today’s opinion. The majority has no good reason for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping women’s expectations of their choices when an unplanned pregnancy occurs. ... The legal framework Roe and Casey developed to balance the competing interests in this sphere has proved workable in courts across the country. No recent developments, in either law or fact, have eroded or cast doubt on those precedents. ...

To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law. That is not true. After describing the decisions themselves, we explain how they are rooted in—and themselves led to—other rights giving individuals control over their bodies and their most personal and intimate associations. The majority does not wish to talk about these matters for obvious reasons; to do so would both ground Roe and Casey in this Court’s precedents and reveal the broad implications of today’s decision.But the facts will not so handily disappear. Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. ...

Some half-century ago, Roe struck down a state law making it a crime to perform an abortion unless its purpose wasto save a woman’s life. ... The Court explained that a long line of precedents, “founded in the Fourteenth Amendment’s concept of personal liberty,” protected individual decisionmaking related to “marriage, procreation, contraception, family relationships, and child rearing and education.” For the same reasons, the Court held, the Constitution must protect “a woman’s decision whether or not to terminate her pregnancy.” ...

At the same time, though, the Court recognized “valid interest[s]” of the State “in regulating the abortion decision.” The Court noted in particular “important interests” in “protecting potential life,” “maintaining medical standards,” and “safeguarding [the] health” of the woman. No “absolut[ist]” account of the woman’s right could wipe away those significant state claims. The Court therefore struck a balance, turning on the stage of the pregnancy at which the abortion would occur. ...

In the 20 years between Roe and Casey, the Court expressly reaffirmed Roe on two occasions, and applied it on many more. ...

[The relevance of pre-1868 history is not clear here.] First, it is not clear what relevance such early history should have, even to the majority. If the early history obviously supported abortion rights, the majority would no doubt say that only the views of the Fourteenth Amendment’s ratifiers are germane. Second—and embarrassingly for the majority—early law in fact does provide some support for abortion rights. Common-law authorities did not treat abortion as a crime before “quickening”—the point when the fetus moved in the womb. And early American law followed the common-law rule. ...

Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. ... [T]hose choices belong to the individual, and not the government. That is the essence of what liberty requires. And liberty may require it, this Court has repeatedly said, even when those living in 1868 would not have recognized the claim—because they would not have seen the person making it as a full-fledged member of the community. ...

With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.

MISSISSIPI LAW BANNING ABORTION AFTER 15 WEEKS (2018)

 (4)  Abortion limited to fifteen (15) weeks' gestation except in medical emergency and in cases of severe fetal abnormality. 

          (a)  Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age ....  The determination of probable gestational age shall be made according to standard medical practices and techniques used in the community.

          (b) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks. ...

     (6)  Professional sanctions and civil penalties.  (a)  A physician who intentionally or knowingly violates the prohibition in subsection (4) of this section commits an act of unprofessional conduct and his or her license to practice medicine in the State of Mississippi shall be suspended or revoked pursuant to action by the Mississippi State Board of Medical Licensure.

          (b)  A physician who knowingly or intentionally delivers to the department any report required by subsection (4)(c) of this section and known by him or her to be false shall be subject to a civil penalty or fine up to Five Hundred Dollars ($500.00) per violation imposed by the department.

     (7)  Additional enforcement.  The Attorney General shall have authority to bring an action in law or equity to enforce the provisions of this section on behalf of the Director of the Mississippi State Department of Health or the Mississippi State Board of Medical Licensure.  The Mississippi State Board of Medical Licensure shall also have authority to bring such action on its own behalf. ...

https://www.nytimes.com/2022/08/18/us/abortion-prosecution-nebraska.html