Wendy E. Parmet

Excerpted from: Wendy E. Parmet, Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, 20 Hastings Constitutional Law Quarterly 267-335, 285-302 (Winter, 1992)

In considering views about government's role with respect to health care in the colonial and federalist eras, the social and political institutions of the time must be kept in mind. Today when we imagine "activist public health," we conceive of large standing bureaucracies, usually located somewhere within the I-495 Beltway in Washington, D.C. Criticizing the United States for not providing health care to all of its citizens, critics assume that the provision of health care refers to insurance coverage for the costs of medical expenses. By those standards, pre-constitutional America lacked any significant conception of public health law.

  Nevertheless, it would be a fallacy to assume that the absence of institutionalized bureaucracy or of established legal entitlements during the eighteenth century precluded states from playing an active role in the protection of health. Nor would it be correct to conclude that the protection of health during that era was considered a matter of private, as opposed to public, responsibility. Indeed, in comparison to the general paucity of bureaucratic organization in pre-industrial America, the vast extent of health regulation and provision stands out as remarkable.

  The public role in the protection and regulation of eighteenth century health was carried out in ways quite different from those of today. Organizations responsible for health regulation were less stable than modern bureaucracies. They tended to appear in crises and wither away in periods of calm. The focus was on epidemics which were seen as unnatural andwarranting a response, not to the many endemic and chronic conditions which were accepted as part and parcel of colonial life. Not surprisingly, religious influence was significant, especially in the seventeenth century. Additionally, in an era which lacked sharp demarcations between private bodies and governmental establishments, many public responsibilities were carried out by what we would now private associations. Nevertheless, the extent of public health regulation long before the dawn of the welfare state is remarkable and suggests that the founding generation's assumptions about the relationship between government and health were more complex than is commonly assumed. I examine these issues by looking at practices in New England, the mid-Atlantic states, and, finally, the South.

A. Public Health Laws in Colonial New England

  Public responsibility for the prevention of disease and the care of the ill was rooted most firmly in the New England colonies and especially in the Massachusetts Bay Colony. Puritan theology stressed God's role in all earthly occurrences. Disease was seen as God's chastisement for sin. Sieges of illness were viewed as evidence that God's " a nger had not yet turned away from us, appearing as in other respects, so also in a signal manner in the contagious spreading Disease of the Small Pox, and other Distempters." In response to such " c ommissions to the destroying Angel," the General Court of Massachusetts Bay Colony would invariably proclaim days of fasting, prayer, and humiliation.

  Theology sometimes impeded what today we would consider reasonable public health actions. Health, like almost everything else in Puritan society, was intermingled with religious belief. That the belief system of the era attributed different etiologies to disease than we do today does not, however, negate the fact that there was public responsibility for health. After all, it is no more surprising that the Puritans relied upon theology to explain disease and suggest responses than it is that we rely upon medical science. The important point is that despite their faith, public authorities provided civil responses which assumed preventative and palliative roles.

   These public responses went beyond prayer. Puritan theology assumed that God acted not only through natural causes but through the "secondary causes" of man. Early New Englanders saw no inconsistency in using prayer, medicine, and law in attempting to preserve health. To Puritan New Englanders, the social covenant through which earthly governments received their authority was established to enforce God's laws. Moral law obliged people to live within a society which aimed for the good of all its members. The welfare of each was not irrelevant, but it was subordinate to the welfare of the whole. And law provided for the general welfare.

  This earthly jurisprudence is evident in the colony's early public health policy. As far back as 1629, the General Court of Massachusetts Bay Colony acted to protect the public health by limiting the number of passengers on each ship carrying migrants to the new colony. In 1647, when the General Court learned of epidemics in the West Indies, it ordered a quarantine of all ships arriving from those ports. That order began a pattern of maritime quarantines in response to threats of epidemics. The General Court attempted to codify the practice in 1699, but the English Privy Council rejected the measure as too harsh. In 1701, legislation was finally enacted.

  The quarantine legislation was a blueprint for the era. Relying on the assumption that certain illnesses were contagious, the statute aimed at preventing epidemics by restraining the social contacts of infectious individuals or goods. The legislation not only called for the quarantine of potentially infectious ships, it also empowered local selectmen to remove to a separate house or isolate anyone with plague, smallpox, or other "pestilential or malignant fever[s]." As was evident in the English laws and earlier informal local practice, the statute did not merely restrain the freedom of those stricken. It also authorized selectmen to provide for the care of the ill by impressing housing, nurses, or whatever was necessary.

  The quarantine policies established by the 1701 law were carried out and modified throughout the colonial period.