Lawrence O. Gostin, et al
excerpted from: Lawrence O. Gostin, Scott Burris, Zita Lazzarini, the Law and the Public's Health: a Study of Infectious Disease Law in The United States, 99 Columbia Law Review 59 - 118, 102-118 (January, 1999) (271 Footnotes)
To assess the current status of communicable disease law, we surveyed statutes in fifty states and two territories of the United States. Using standard legal research methods, we collected the statutes in every jurisdiction that set forth the powers and duties of health departments with respect to communicable disease control, and determined their ages. These included both laws addressing communicable diseases broadly and statutes addressing particular diseases or classes of disease, such as tuberculosis or sexually transmitted diseases.
The results revealed that state public health laws vary significantly in definitions, methods, age, and scope--so significantly, in fact, that the data defy useful tabulation or categorization. The law in many states consists of successive layers of statutes and amendments, built up over one hundred years or more in response to disease epidemics. Although states sometimes follow each other in crafting legislation focused on particular topics, the health codes in their entirety have evolved independently, leading to profound variation in the structure, substance, and procedures for detecting, controlling, and preventing communicable diseases. Only a few states have rewritten or consolidated their laws into a unified set of statutes that apply to the full range of modern diseases and conditions and that reflect contemporary legal standards. This Part reviews our findings and discusses their impact on practical efforts to implement effective public health responses to communicable diseases.
The most striking characteristic of state disease control law, and the one that underlies most of its defects, is its overall antiquity. Although some statutes have been amended over the years, many consist substantially of elements that are forty to one hundred years old. Because communicable disease laws in the United States have been passed piecemeal, in response to specific disease threats, they tell the history of disease control in America much as geologic strata tell the history of the earth. In the eighteenth century, communicable disease statutes focused primarily on smallpox, though quarantine regulations were generally applied to any identified disease or "fever" that might be perceived as a threat. A reliance on coercive reactive control methods--particularly nuisance abatement, quarantine, and isolation-- can be said to form the deepest layer of American disease control law, a layer that is often invisible, but that still shapes the structure of the statutory landscape. In the nineteenth century, states and municipalities enacted regulations in response to periodic epidemics of yellow fever and cholera. These laws also relied heavily on sanitation, quarantine, and isolation, though case-finding and treatment began successively to play more prominent roles as the prevailing understanding of disease changed to reflect the acceptance of germ theory. Increasing attention was also paid to tuberculosis, which was one of the leading causes of death, but whose chronic and endemic nature had tended to disguise its importance. In the 1890s, New York health officials introduced reporting of tuberculosis cases, which, after some powerful early opposition, was widely adopted and helped set the pattern for tracking other diseases. Continuing efforts to control syphilis in the first half of the twentieth century led to statutes authorizing premarital screening, reporting, contact tracing, and involuntary treatment. Throughout this period legislatures responded to other epidemics, such as poliomyelitis and influenza, with disease-specific laws. In the latter part of the twentieth century, legislatures addressed HIV/AIDS with AIDS -specific statutes, adding yet another layer.
Older laws also reflect legal problems--and solutions--that are rather different from those arising in public health today. For much of the nineteenth century, lawyers agreed that the state's power to act arose from the police power and was limited primarily by the common law doctrines of sic utere tuo, ut alienum non laedas and salus populi supreme lex. Under these maxims, public health measures were justified by their necessity, which was to be assessed by a judge applying familiar common law principles, with the degree of deference to be paid to health officials being an often decisive issue. Cases challenging health actions often turned on the existence of a nuisance-like threat justifying the measure, and early health statutes were often designed to clarify the authority of health officials to conclusively declare unhealthy conditions to be nuisances. The problem of authority to declare and abate nuisances was particularly salient for local governments, whose authority was generally a matter of legal dispute throughout the nineteenth century and was straitened by the strict scrutiny of state delegations known as Dillon's Rule. Hence, grants of power to health officials and local governments tended to be made in broad terms. State and local boards of health (and even for a while a national board) proliferated after the Civil War, entailing a boom in public health legislation, some of which is still in force today.
Yet even as states were developing the modern administrative structure of public health in legislation, the legal analysis of public health measures was changing. As both Wendy Parmet and William Novak have recently shown, the last third of the nineteenth century saw the constitutionalization of public health law. At least in legal doctrine, the focus moved from common law, necessity- based limits on the police power to limits based on individual rights derived from the Fourteenth Amendment, which was then beginning to be enforced against the states. In their legal as in their medical aspect, the first generation of modern public health laws was looking backward at the last case, not forward to the next.
Certainly, old laws are not necessarily bad laws. A well-written statute may remain useful, efficacious, and constitutional for many decades. Nevertheless, old public health statutes that have not been substantially altered since their enactment are often outmoded in ways that directly reduce both their efficacy and their conformity with modern standards. These laws often do not reflect contemporary scientific understandings of disease, current treatments of choice, or constitutional limits on states' authority to restrict individual liberties. Laws enacted with different diseases in mind, at very different moments in time, may deploy different and inconsistent legal or medical approaches to similar disease control problems. Conversely, older statutes, codifying superannuated methods, may be used by opponents of current public health policies to support a return to "traditional" policies that many present officials regard as inappropriate.
Health laws reflect the understanding of and method for addressing disease that prevailed at the time they were passed. We face different sorts of threats today than we did fifty or a hundred years ago, and we have different ways of dealing with them. State health codes typically contain laws that are simply no longer relevant and fail to address new approaches to disease control. Afew examples will illustrate these problems.
Older statutes were typically written in contemplation of diseases that were transmitted by casual, often airborne, means. A South Dakota statute passed in the late 1800s, and last amended in 1977, for instance, makes it a misdemeanor for a person infected with a "contagious disease" to "intentionally [[[expose] himself . . . in any public place or thoroughfare." This might have made some sense in a time when diseases such as influenza, diphtheria, and measles were significant sources of serious illness and death, but it serves little purpose today. Perambulation by people with the flu may be impolite, but it is not a major health threat, and efforts to bar the streets to people who do not pose a significant risk would often violate modern disability discrimination law. Nor, when health officials do occasionally impose isolation (for example, to control a measles outbreak), do they run into the sort of resistance that might require legal action to contain. More importantly, a law based on preventing casual transmission of airborne diseases obviously has little pertinence to the sexually transmitted and blood-borne pathogens that principally occupy health authorities today.
Methods may change even when the disease does not. New Jersey's basic communicable disease law includes a provision that was enacted in 1902 and last amended in 1915, authorizing the relevant state and local health authority to "[r]emove to a proper place . . . all articles within its jurisdiction, which in its opinion, shall be infected with any matter likely to communicate disease and to destroy such articles, when in its opinion the safety of the public health requires it." This was state-of-the-art practice to control fevers and smallpox in the mid-nineteenth century, but was probably already antiquated when it was enacted.
The problem is not confined simply to diseases that are no longer prevalent. In former times, the main approach to tuberculosis control was isolation. Patients were confined to specialized sanitoria, and the law assured that cases were identified and patients routed to the proper facilities. Effective treatment was not available until the discovery of streptomycin in the late 1940s, and appeared to be so effective that the system of public health control of the disease was dismantled. When tuberculosis reemerged as a serious threat in the past decade, control relied on a new strategy, directly observed therapy (DOT), that ensured that patients would complete their treatment. To effectively implement DOT, health officials found they needed new legal powers and procedures, including the power to require treatment and a set of less restrictive alternatives to promote patient compliance than medical isolation or confinement. However, many states have yet to address DOT. Older statutes, such as Montana's, provide authorization only for compulsory examination and actually forbid compulsory treatment.
Through a process of accretion, the majority of states have come to have two and often three classes of communicable disease law: those aimed at traditional STDs (or venereal diseases), including gonorrhea, syphilis, chlamydia, and herpes; those targeted at specific currently or historically pressing diseases, such as tuberculosis and HIV; and those applicable to "communicable" or "contagious" diseases, a residual class of conditions ranging from measles to malaria whose control does not usually seem to raise problematic political or medical issues. A few states have largely eliminated these distinctions by revising their statutes to apply a unified disease control system.
The statutory schemes that retain multiple disease classifications often vary considerably from section to section in the authority they confer upon health authorities. Enforcement procedures, including due process guarantees and criteria for the exercise of coercive powers, may also vary according to classification. Two examples illustrate the obvious problems.
In Colorado's disease control statute, there are separate sections for venereal diseases, tuberculosis, and HIV, among many other conditions. All three sections authorize compulsory control measures, but vary significantly in the procedures required and the public health philosophy expressed. Whereas the venereal disease statute simply empowers compulsory examination whenever health officials deem it necessary, the HIV sections set out a list of increasingly intrusive options, requiring use of the least restrictive, and place the burden of proof on the health department to show a danger to public health.
Idaho's minimalist communicable disease law has a chapter on "Control of Venereal Diseases" that has been amended in several sections to apply also to hepatitis B and HIV. It includes provisions for testing of prisoners, compulsory examination, and quarantine. The code, which has chapters ranging from "Sale and Disposal of Batteries" to "Artificial Insemination," is otherwise almost silent on the score of communicable diseases. A section on local health powers mentions communicable diseases and infections in a long list of conditions subject to abatement as nuisances.
The single greatest problem with these disease classification patterns is that they are arbitrary and outdated in light of current approaches to disease control and causation. The revision of state codes to comprehensively address all communicable disease threats under a unified heading better reflects the modern understanding of the complex interaction of microbes, individual behavior, and ecology. Pressing health threats like HIV and hepatitis can be transmitted sexually, perinatally, or through contact with blood or other bodily fluids (e.g., shared injection equipment or blood transfusions). Their control depends on a range of measures aimed at case-finding, behavior change, and changes in community norms and practices, and is not effectively addressed with pigeonhole classifications.
STD statutes tend to be particularly problematic in their evocation of a punitive, stigmatizing attitude. Older STD statutes, usually called venereal disease statutes, commonly allow severe restrictions on liberty, often based on vague or nonexistent criteria. For example, a New Jersey statute authorizes local health officers to order a compulsory medical examination of any person suspected of having a venereal disease. These statutes frequently single out a specific group or profession (often commercial sex workers and, less often, their clients) for particularly harsh treatment. The New Jersey statute automatically classifies prostitutes as suspect or "lewd persons" who "may be required to submit to an examination at any time." In approximately half of the states, public health statutes specify the intentional, reckless, or knowing spread of venereal disease as a criminal offense.
Furthermore, separate classification creates unnecessary political and administrative complications. An important function of public health statutes is to define when and under what conditions public health officials are authorized or mandated to exercise public health powers. Public health officials should be concerned with the degree of danger to the community posed by the health problem, the existence of an effective public health intervention to reduce that danger, and the potential liberty and privacy burdens of those interventions. Overly specific disease classification gets this backward, specifying powers based on the causal agent instead of the appropriate control strategy. And because the health department's powers may depend upon the pigeonhole in which the disease is placed, deciding how to classify an infectious disease can be time-consuming and politically charged.
Statutes that overclassify also leave holes in coverage. For example, although Colorado's health authorities arguably have overall authority to institute measures against the burgeoning epidemic of hepatitis or the newly recognized problem of hantavirus, these diseases do not naturally fall under any of the current headings in the disease control law, and so none of the specified powers and procedures clearly apply. The department could make new rules, or list hepatitis as a venereal disease, or ask for new powers from the legislature, but in any case health authorities would have to deal with needless legal formalities arising entirely from the form of state law.
There are legitimate reasons to treat some diseases separately. Most recently, the resurgence of tuberculosis required new powers to enforce DOT, a new and unique intervention. Yet even in such a case, at least part of the problem came from poor health laws in the first place. A general communicable disease statute that authorized health officials to fashion orders deploying current disease control measures under a significant risk standard would have sufficed to empower health officials to enforce DOT, without new legislation.
Privacy protection has long been an important way for health agencies to address the problem of trust. Increasingly, it has become the linchpin of health authorities' approach to the problems of stigma and social hostility. Despite this ever-more important role in health practice, however, the legal protection of health privacy is uneven, not simply across the states, but within them. States generally provide some protection to health data collected for public health purposes, though the grading of the offense varies greatly. Most states treat violations as a misdemeanor, while a few punish official violators by dismissal, and some provide no penalty at all.
It is quite common for the level of protection to vary with the type of disease. Privacy protections for persons with STDs, for example, are typically much stronger than those for persons with tuberculosis and other infectious diseases, though even these statutes vary considerably in the extent of protection they provide. State communicable disease laws require physicians, hospitals, laboratories, and others to report specified diseases to state or local health departments and usually place limits on disclosures by the health department. Compared to STDstatutes, communicable disease statutes may allow more or broader exceptions for disclosure. Disclosures are most often allowed for statistical purposes or to enforce public health laws. In addition, many states authorize disclosure pursuant to subpoena or court order. Other states place disclosure within the discretion of public health officials. The protection of HIV confidentiality has followed this pattern in a network of HIV-specific state laws of quite varying coverage. Weak or strong, older statutes-- and even the recent generation of HIV-specific provisions--neither reflect nor address the privacy challenges posed by computerized records and the associated developments in the use of health information by insurers, governments, and researchers.
Some states have reformed their laws to protect all information that the government collects, including communicable disease data, under a single statute. A small number of states have adopted legislation based upon a model statute for protecting and disclosing public health data. Montana's Government Health Care Information Act, which applies to information held by public agencies, provides strong protection for public health data and permits disclosure only with the individual's consent or for narrowly tailored public health purposes. These include: to department or outside researchers for statistical analysis; to medical personnel where necessary to protect the subject's life or health; to the subject's contacts pursuant to tuberculosis or STD control laws; to state or federal officials as required by disease reporting provisions; to another state or local health department to control disease or provide services to the subject; and to other government agencies to report cases of child abuse.
Effective use of compulsory health powers depends upon the clarity of the legal criteria for their exercise and the strength of provisions protecting the human rights of the sick. Existing public health statutes often provide only vague standards for health action and tend to be silent on the trust, legitimacy, and stigma issues that animate health disputes today.
Through the exercise of compulsory powers, public health officials can require that people who pose a threat to public health submit to medical examination, testing, immunization, treatment, counseling, detention, isolation, or quarantine. Such restrictions may infringe an individual's right to travel, secure privacy, maintain autonomy, or associate. In 1905, the Supreme Court established that state public health interventions must bear a "real or substantial relation" to a public health objective. Beyond that, however, case law has failed to clarify the standards for assessing the legality of health measures. A few state statutes articulate clear criteria for the exercise of these powers; others provide vague or incomplete standards; still others leave their use partly or wholly within the discretion of public health officials.
Broad discretion is the norm. For instance, New Jersey law authorizes the state health department or a local board of health to isolate and quarantine persons "whenever deemed necessary" and to remove "any person infected with a communicable disease to a suitable place, if in its judgment removal is necessary and can be accomplished without any undue risk to the person infected." Similarly, aSouth Dakota statute, last amended in 1939, states that "when a disease dangerous to the public health breaks out in any township . . . the [local health] board may cause any sick or infected person to be removed [to a hospital]." California authorizes its department of health to "quarantine, isolate, inspect and disinfect persons, animals, houses, rooms, other property, places, cities or localities, whenever in its judgment such action is necessary to protect or preserve the public health." Besides supplying only vague criteria for exercising coercive powers, these statutes also tend to focus on disease status rather than dangerous behavior.
To be useful, communicable disease law must give health officials coercive powers that they can actually use without raising questions of legitimacy or trust and without adding to the problems of stigma and social hostility. Recent antidiscrimination law has articulated the standard of significant risk to determine when an individual poses a danger to others. This standard both establishes an effective model of risk assessment in communicable disease control and acts as a substantive limit on the discretion of health officials regardless of the requirements set in state public health law. Some states' disease control laws specify criteria that are at least arguably consistent with the individualized, significant risk standard of the disability laws, requiring evidence that individuals pose a danger or threat to the community by virtue of their status or behavior. Minnesota's health law, dating from 1989 and most recently revised in 1995, sets forth the sort of criteria and procedures for dealing with health threats posed by individuals with communicable diseases that comport with current legal requirements. In the statute, "health threat to others" is defined to mean that a carrier is likely to place others at risk through behavior, proximity, or other circumstances.
Prevailing public health law in many states also has the defect of providing health officials with an unpalatable choice of doing nothing or doing too much when faced with an individual who is endangering public health by dangerous behavior. Commonly, such people have multiple psychosocial problems and may be amenable to a variety of interventions other than confinement. Some states' laws, however, provide no alternative to inaction but isolation. In recent years, a few states have revised their statutes to provide a range of interventions. Michigan's law, for example, explicitly offers courts and public health officials a range of options.
Statutes that fail to provide clear criteria and useful sanctions hamper public health work in a variety of ways. Paradoxically, a lack of statutory guidance may lead public health officials either to overuse or to underuse coercive powers. Without clear criteria, public health officials may restrict an individual's liberty without valid public health grounds or may be so unsure of their authority to act that they do not use these measures to respond to actual threats. Broad discretion and the absence of criteria also invite abuse of compulsory powers or their discriminatory use against stigmatized or marginalized groups, or create the perception of such abuse against the vulnerable even when health officials have no malevolent intentions.
Due process requirements ensure that no person shall be deprived of rights that are "implicit in the concept of ordered liberty," and guarantee that every individual shall be treated with at least a minimum of "decency and fairness." Procedural protections seek to ensure that health officials make fair and impartial decisions and may reduce the perception by people with, and at risk of, communicable diseases that public health agencies arbitrarily employ coercive measures. Where few formal procedures exist, public health officials risk rendering biased or inconsistent decisions and erroneously depriving individuals of their liberty. Consider, for example, a decision by health authorities to require DOT for tuberculosis only for certain indigent persons, such as homeless or drug-dependent persons, but not for those with stable residences and private physicians. Public health officials might regard those from certain disfavored backgrounds as "less responsible." Yet, if these suppositions were not tested through rigorous procedural due process, they could result in prejudicial and unfair individual determinations.
Some state statutes do specify basic procedures. These may include written notice of the threat the person is alleged to pose and the behavior required of her by the health department, appointment of counsel, an evidentiary hearing, a jury trial, release pending adjudication, and discovery, as well as substantive requirements, such as medical evidence of infectiousness. Many states, however, lack explicit procedural protections for the exercise of compulsory powers or the review of public health restrictions in some or all of their communicable disease laws. New Jersey, for example, applies different isolation procedures to communicable diseases generally, certain sexually transmitted diseases, and typhoid. The New Jersey statute ignores due process entirely under the first two categories. A health officer may confine a person with a venereal disease based solely on a single physician's assessment of infectiousness, "and the opinion of such physician . . . shall be final." In contrast, commitment of a typhoid carrier requires a court to make findings as to dangerous behavior and actual infection. In Montana, no due process procedures at all accompany the health officer's power to "isolate or quarantine persons who refuse examination or treatment" for sexually transmitted disease. Indeed, the law goes on to specify that "[n]o one but the state or local health officer may terminate the isolation or quarantine," and examination can be made whenever that officer deems it "advisable or desirable."
Our review of public health legislation suggests that state public health law remains fragmented both within and among states. Statutes that were enacted forty to one hundred years ago often form the foundation and the substance of state communicable disease law. Although some states have amended their statutes, many fail to reflect in their laws the best of modern epidemiology, treatment alternatives, or legal norms of nondiscrimination, equal protection, and procedural due process. Many state statutes continue to classify diseases artificially as either communicable or sexuallytransmitted, to lack specific criteria or procedures for wielding compulsory public health powers, or to create conflicting layers of rules and bureaucracy. Although some states have accomplished important work in reforming their public health codes or in updating confidentiality provisions for health data held by the government, these states are in the minority. Public health and communicable disease law in all the states is ripe for reform. Such reform is necessary to ensure that public health departments can fulfill their mission to create theconditions in which people can be healthy.