Scott Burris
excerpted Scott Burris, Fear Itself: Aids, Herpes and Public Health Decisions
A. The Public Health Decision: An Analytic Model
In reviewing state health actions under the police power, courts ask
whether the action addressed a problem the solution of which was a
legitimate state purpose, and whether the action was reasonably related
to achieving that purpose. Where fundamental individual rights are
compromised, courts apply a stricter standard of review, requiring both
a compelling state interest and a showing that the chosen action was the
least restrictive means of achieving it. Of course, problems arise as
soon as one attempts to assign meaning to words like 'legitimate,'
'rational,' 'compelling' and 'restrictive.' In public health law, these
terms must be defined to allow only those measures which are medically
necessary or justified. Courts have recognized this, and moved, either
explicitly or implicitly, to adopt a model of public health decisions
which allows them to reflect current medical opinion while disregarding
extraneous public demands.
Public health decisions may be understood analytically as
having two parts: first, an assessment of the risk posed by a disease
and, second, a choice of response. Risk assessment is a purely
objective, medical question; it is an analysis both of the severity of a
disease and the manner and likelihood of its transmission--a usually
fatal but non-contagious disease such as leukemia presents an altogether
different kind of public health risk from a highly contagious but rarely
dangerous disease such as chicken pox. Simply put, the risk assessment
tells us if there is a problem, and if there is, charts its boundaries.
The choice of a response incorporates both medical and non-medical
factors. In this phase, the health official initially measures possible
responses against a medical standard of efficacy. She may also engage in
a cost/benefit analysis, in social and political as well as economic
terms; in fact, virtually any factor that may properly be considered by
an administrator may be considered in the response phase. The initial
medical measurement, however, limits her choice in that she may not
select for non-medical reasons a response which is more restrictive of
individual rights than one of equal or greater medical efficacy, or one
which has no medical value. The response phase simply tells us what to
do about the medically defined problem.
This model of the health official's decision process
mirrors in a prospective form the retrospective analysis of the
reviewing court. It provides a means of defining the terms used in the
judicial analysis. A state has a legitimate or compelling interest in a
particular health action when a medical risk assessment has established
the existence of a public health problem. To the extent that objectivity
is possible, this is an objective assessment, based solely on medical
and epidemiological data interpreted according to accepted scientific
principles. No regard is given in this phase to the problems attendant
upon attempting to address the necessity. The response choice is
reasonably related to the state's goal when it is a medically sound
response to the risk as assessed. It is the least restrictive means if
it is the medically-justified response that entails the least
infringement on individual rights. The most medically sound response is
justified even if another response is less restrictive, less costly or
less controversial. At trial, the state must prove that its risk
assessment is justified by the medical evidence. The state's response to
a proven medical risk, however, is presumed valid unless those attacking
it prove it to be medically unjustified, or more restrictive than
another choice of comparable medical effectiveness.
Because the health law may often be applied in
controversial cases, it is important to recognize that this analysis is
not a method of eliminating doubt, but of apportioning uncertainty. It
is not the nature of scientific evaluations to be one hundred percent
certain. Where no action is taken, the costs of a mistake--and fear of a
continuing threat, unrelieved by action--are borne by the public. If
action is taken, the costs of a mistake are borne by those whose rights
are compromised. Because uncertainty is inevitable, courts must bear in
mind that protecting one group from its costs simply transfers those
costs to another. The health law may be understood as regulating the
placement of this burden.
In the cases to be examined here, it is possible to trace
the relatively rapid disenchantment of the courts with a lay or common
sense view of increasingly complex medical problems, with a consequent
increase in dependence on a medically-based form of analysis. The cases
to be considered fall into three groups. The early cases find the
courts, at the end of the last great era of fundamental theoretical
disagreement in the medical community, just beginning to accept medicine
as a science. The second group, beginning in the second decade of this
century and continuing to the present day, shows courts adopting medical
risk assessment and response standards demanded by rapid expansion of
medical knowledge, but without updating legal language to reflect the
new requirement. Courts did not explicitly state these standards because
most police power cases that arose in the past fifty years presented
individuals protesting, often for religious reasons, steps which were
both generally accepted by the public and supported by the preponderance
of medical evidence. Courts simply did not see the challenging sorts of
cases that arise where lay and medical approaches to disease diverge
drastically. It is these cases--those in which great public fear exerts
pressure on decision- makers for health measures which are not supported
by medical necessity--which require for their resolution a clear
explication of the language of the law. Examples are found in the third
group of health cases. Decided, in the absence of dynamic police power
litigation, under other law, these cases yield an explicit statement of
the fundamental role of medical risk assessment and response choice in
public health actions.
B. The Early Cases
The standard for the exercise of the police power in health is
expressed in the leading Supreme Court case on the subject, Jacobson v
Massachusetts.
Jacobson arose from the refusal of a Cambridge man to follow an order
of the town Board of Health requiring vaccination against smallpox. The
risk of smallpox transmission was established by uncontraverted evidence
that smallpox was prevalent and increasing in the community. Jacobson
joined battle on the issue of whether vaccination was an effective
response, asserting that vaccination was not medically justified and
offering medical evidence to that effect. In the Court's opinion,
however, Jacobson was merely stating a general theory, held by some in
the medical profession, of the inefficacy and danger of vaccination. The
Court rejected this claim: 'What everybody knows the court must know,
and therefore . . . this court knows, that an opposite theory accords
with the common belief and is maintained by high medical authority.' The
Court could not adjudge the regulation inappropriate and still 'attach
any value whatever to the knowledge which . . . is common to all
civilized peoples touching smallpox and the methods most usually
employed to eradicate that disease . . ..'
Jacobson is characterized by an equipoise in the
perceived value of medical knowledge and common sense in assessing and
coping with medical risk. Every reference in the opinion to 'the matured
opinions of medical men' is coupled with recourse to 'the experience of
mankind.'
The Court quoted a contemporary New York case, Viemeister v. White,
which recognized that the effectiveness of vaccination was disputed
by some lay and medical people, but pointed out that:
[Vaccination] is accepted by the mass of the
people, as well as by most members of the medical profession. . . .
The fact that the belief is not universal is
not controlling, for there is scarcely any kind of belief that is
accepted by everyone. The possibility that the belief may be wrong, and
that science may yet show it to be wrong, is not conclusive; for the
legislature has the right to pass laws which, according to the common
belief of the people, are adapted to prevent the spread of contagious
diseases. . . . While we do not decide, and cannot decide, that
vaccination is a preventive of smallpox, we take judicial notice of the
fact that this is the common belief of the people of the State, and with
this fact as a foundation, we hold that the statute in question is a
health law, enacted in a reasonable and proper exercise of the police
power.
(emphasis added)
Jacobson reflects tension between the emerging medical
understanding of disease and the lay view.
The case came at the end of five decades of steady advances in the
capacity of medical science to prevent and control disease.
Even the most enlightened laymen, however, were aware that the
continuing efforts to understand the etiology of disease were marked by
fundamental and often bitter theoretical conflicts; where science
presented such marked alternatives,
it was natural for laymen to feel qualified to choose among them.
Jacobson suggests that in situations in which the uncertainty about the
nature and contagion of a disease is equal in the public and medical
minds, the most reasonable solution in a democratic society is to allow
the majoritarian organs of government to resolve that uncertainty
according to their informed views of necessity.
Jacobson, then, looked forward in requiring an assessment of medical
risk and response, but it looked backward in not leaving medical
judgments exclusively to medical experts.
Jacobson upheld the broad power of the state to identify
and address public health problems.
The analysis of the propriety of this particular application of the
power was closely linked to the general legitimacy of state action.
Because the Court decided the case in terms of the general legitimacy of
the police power, and did not establish a medical standard for action in
particular cases, Jacobson failed to answer the central question before
courts in modern public health cases: is the application of the health
power valid in this case?
This question, naturally enough, was first posed in those cases in
which the court rejected a specific state action while accepting the
state's general power. It was in the effort to protect individual rights
without infringing upon stateprerogatives that an emphasis on medical
evaluation first appeared.
In the 1895 case of In Re Smith,
the New York Court of Appeals began its opinion by pointing out that
in any evaluation of a health regulation:
[I]t must appear very clearly and
satisfactorily, not only that it [the power to take the particular act]
has been conferred by the law, but also that in its exercise the facts
were present which justified it. The validity of the law is not so much
called in question as the right to enforce its provisions is. (emphasis
added)
In holding that county health officials could not quarantine two
haulers who had refused vaccination simply because their business
brought them in and out of areas where smallpox was epidemic, the court
required a showing 'if they are not actually 'infected' with disease,
that they have been 'exposed' to it, and that the conditions actually
exist for a communication of contagion . . ..' (emphasis added)
In short, a valid grant of authority did not relieve the health
commissioner of his obligation to make a medical evaluation of the risk
and choose a medically sound response.
The 1900 case of Jew Ho v. Williamson,
places even greater emphasis on medical criteria in evaluating state
action. San Francisco's health officials found nine fatal cases of what
they diagnosed as bubonic plague in a primarily Chinese neighborhood of
the city. They quarantined some ten thousand Asians in a twelve-square
block area. The plaintiff sought an injunction against the quarantine on
two grounds. First, he disputed the diagnosis, offering the testimony of
medical specialists whose expertise in the plague far surpassed that of
the city's doctors. Second, conceding the existence of the epidemic
arguendo, he asserted that the quarantine was improperly and
ineffectively enforced: instead of quarantining the houses and contacts
of the plague victims, the entire neighborhood was closed down;
additionally, the boundary was shifted on a house by house basis in
order not to quarantine whites who lived along the border.
Relying on medical evidence, the court held that the
quarantine as enforced was a violation of the Equal Protection Clause of
the Fourteenth Amendment not only because it was clearly applied in a
discriminatory fashion, but also because its scale was not reasonably
related to the goal of preventing plague as judged by normal medical
standards.
The Court did not, however, foreclose a quarantine of the homes and
contacts of the nine who had died. Although it observed that the best
evidence suggested there had probably never been any plague, it deferred
to the health department's assessment of risk and declined to offer a
judicial opinion on the question, this being one that 'courts . . . are
disposed to leave to boards of health to determine upon such evidence as
their professional skill deems satisfactory.' (emphasis added)
An acceptance of a lay or common sense assessment of the risk played
no role in the Court's decision. In both Smith and Jew Ho, it is
possible to detect the first glimmerings of judicial recognition that
health decisions were becoming too complex and too prone to abuse to be
made without reference to objective medical standards.
C. The Implicit Acceptance of Medical Standards
In the first twenty years of this century, medical
science began to present a united professional front as the discoveries
of the late nineteenth century produced dramatic results.
There was an enhancement of the perceived authority of medical
pronouncements.
Courts gave less weight to the lay perception of disease, and more to
medical evaluations of risk and response. The general legitimacy of the
state's police power was no longer a sufficient basis for action in the
absence of a specific medical justification.
In 1913, Board of Health of Covington v. Kollman
upheld sanitary milk bottling rules despite plaintiff's claim that
the measures did not prevent disease. The court discounted the
plaintiff's suggestion that scientific theories were too unreliable and
changeable to serve as a basis of fair law:
In matters affecting the public health it is
the part of reason and common sense to adopt the best scientific thought
of the age in which we live. If research and investigation lead to other
accepted theories, then we must adopt them. Were the rule otherwise,
both the courts and the Legislature would be without a competent guide.
Viewing the matter in the light of the accepted theories of science at
the present time, [this] regulation . . . is neither unreasonable nor
oppressive.
The court was aware not only of the rapid development in medical
science, but also that common sense alone would no longer serve as a
'competent guide' in adjudicating the appropriateness of particular
health actions that compromised important individual rights.
By 1922, in People ex rel Barmore v. Robertson,
the Illinois Supreme Court understood: 'Public health measures have
long been recognized and used, but the science of public health is of
recent origin, and with the advances of the science, methods have
greatly altered.'
Not only in its dicta, but also in its holding, the court manifested
a confidence in and reliance on medical evidence. Barmore was a
boarding-house keeper who, laboratory analysis showed, was a carrier of
typhoid. A lay view of contagion might have resulted in a conclusion
that Barmore was not contagious: her husband did not have typhoid, and
none of her boarders who developed the disease did so while living in
her house. The court, however, relied on laboratory evidence of her
infection in upholding a quarantine.
The Barmore decision reflected the same growing appreciation of
scientific methodology and preventive medicine as Zucht v. King.
There, the Supreme Court upheld an ordinance that set vaccination as
a prerequisite for school attendance without regard to the actual or
imminent presence of an epidemic. Jacobson's requirement of both an
assessment of risk and an evaluation of response survived; its belief in
the equality of lay and medical evaluations did not. Both Zucht and
Barmore suggest a major step in judicial conceptualization of the role
of public health actions. Doctors were now fighting disease on a broad
scale, moving to deal effectively with diseases whose presence was not
even recognized by the public. In judging such actions, courts found
doctors' expertise indispensible.
Since Zucht, there has been little change in the
implementation of health law under the police power. A medical
assessment of risk and response is required, but the requirement is
still most often stated in the language of Jacobson. The authority of
the state to protect the public health has achieved virtually unanimous
political, legal and social acceptance.
Supported by this acceptance, the medical standard, though not
explicitly stated by courts, has generally been applied in public health
cases. Only recently have problems arisen which require a clearer
statement of the health law.
D. The Explicit Adoption of Medical Standards
Perhaps because the law with respect to police actions
has appeared so settled, litigants seeking to challenge state health
measures have relied on other grounds for a cause of action. These
include recent Federal statutes granting special protections or
entitlements, such as the Rehabilitation Act of 1973 and the Education
for All Handicapped Children Act (EAHC),
and newly developed Constitutional protections, such as the right of
privacy.
Thus, important decisions involving the same issues as the classic
health action cases have been decided without explicit reference to the
police power. While formally decided under different law, these cases
confront the problems that arise when health risks must be assessed and
responses chosen where medical and lay perceptions of a health problem
diverge. In these cases, courts have explicitly applied strict rules of
medical evidence in testing the validity of state health actions. Both
because the issues are identical, and because there is frequently
implicit reference to the police power, these precedents should be
applied in police power cases.
Typical of these recent decisions is a line of cases
involving the admission into regular schools of children who are
carriers of Hepatitis B, a serious viral disease.
In one of these cases, New York State Association for Retarded
Children, Inc. V. Carey,
the School Board of the City of New York attempted to bar some fifty
retarded children infected with hepatitis B from school attendance. This
failed in the District Court.
The Board then moved to segregate the children within the school.
The Board's actions were sparked by a false alarm of hepatitis
infection of a teacher.
In the haste and panic of its reaction,
the Board selected a severely flawed response; the flaws were
decisive in the Court of Appeals' affirmance of the District Court's
rejection of the segregation plan. First, the Board, which had been
unable to formulate a plan in cooperation with the Health Department,
failed to show that its own assessment of the risk justified a
response that so severely compromised the children's educational rights.
The weight of the medical evidence suggested that the children could
safely attend regular classes with the adoption of a few, minimally
restrictive precautions.
Second, the Board made a mistake akin to that of the city of San
Francisco in Jew Ho: if the Board's assessment of the risk were
accepted, then its response was medically inadequate since it made no
effort to identify and isolate all hepatitis B carriers in the school
system. To the Court, this approach 'at least suggest ed that the Board
did not regard its own evidence of risk as particularly convincing.'
In selecting standards for its review, the Court of
Appeals was clearly guided by the need to establish a medical
justification for the Board's action.
The court rejected the Board's contention that the District Court
erred in conducting an inquiry into the adequacy of the Board's own
fact- finding, which, the Board claimed, should have been judged solely
for rationality, with the deference due to a legitimate exercise of the
state's power. The court recognized that no such deference to the
Board's version of the facts was justified where the facts would be
practically dispositive of important rights or entitlements
--where, in other words, it was the facts themselves that were at
issue. While finding that close, highly technical calls would go to the
qualified administrators, the court did not hesitate to intervene when
the overwhelming weight of the medical evidence went against the state's
action.
This decision suggests a very important role for courts in evaluating
health actions. Because action can only be premised upon necessity,
courts may insist upon satisfying themselves through expert medical
testimony that risks have been accurately assessed. Because responses
that infringe upon basic rights cannot be more restrictive than is
medically necessary to address the relevant risks, courts may themselves
measure responses against a medical standard.
The choice of medical standards does not always represent
an escape from uncertainty and the risk of incorrect decisions. Rather,
it represents a recognition that medical expertise offers the most
objective and coherent standard available for dealing with uncertainty.
In fact, medical standards as evidentiary tools are most important
precisely when knowledge is most limited. LaRocca v. Dalsheim,
the first case directly involving AIDS to come to trial,
offers a model for medical risk assessment in a judicial setting. A
group of prisoners at a New York state prison brought a class action to
enjoin the state from enforcing policies which they believed promoted
the spread of AIDS within the prison.
(Thus, the inmates were not acting against a health action, but, as
private health officers, one might say, seeking to establish quarantine,
isolation and mandatory examination.) The judge was acutely aware of the
context of fear in which this litigation was occuring, and discussed
public and inmate anxiety at some length:
'Much of the apprehensiveness exists because no one is completely
sure how AIDS is spread, and no one has conclusive answers as to the
relationship between contact and risk.'
This fear and uncertainty made it vital for the court to 'evaluate
the risks by examining the known features of AIDS as measured against
the existing conditions' at the prison.
Such a measurement would, the judge recognized, provide certainty
only 'to the extent that current scientific knowledge allows . . ..'
In testing the necessity of action, the court properly recognized
that the nature of medical knowledge made both finality and certainty
impossible and inappropriate, and concluded:
The scientific knowledge . . . with regard to
AIDS may be expected to change, with each new medical advance. In a
month, a practice accepted today may be discarded in favor of a new
approach. . . . In a matter of time, the ailment may be conquered, or
inhibited by tactics which are as yet unfathomed. The court cannot
suitably act as an administrative body on an on- going basis. The more
practicel solution is to dismiss the action . . . with leave to renew
the proceeding . . . upon a claim that the State has acted improperly.
This candid acceptance of inevitable uncertainty should be a model
for courts in similar situations. Uncertainty can rarely be avoided.
Responses that purport to avoid it are likely to have an impact more
comforting than real; worse, in accepting comfort as a legitimate goal,
such responses may be overbroad and place an unacceptable burden on
disease victims.
The principle purpose of the health law is to protect
public health, but, as the cases above demonstrate, the health law is
structured to protect individual rights as well by requiring all actions
to meet a test of medical necessity. This is to be seen in a line of
cases decided under the Rehabilitation Act of 1973,
involving the participation of handicapped students in
interscholastic sports. In fact situations free of the distortions that
come with fear and associated political pressures, the courts explicitly
held that the states may not infringe upon individual rights in the name
of health on any basis less than valid medical necessity, however
well-intentioned or sensible the action might be from a common sense
point of view.
The strongest case in this line is Grube v. South
Bethlehem Area School District.
Several physicians, none of whom possessed any special expertise in
sports medicine, decided that a student with one kidney should be barred
from the football team. The boy and his family consulted a sports
medicine expert, who helped the student procure special protective pads
and testified at the trial that there was no record of anyone suffering
a serious kidney injury playing football. In holding for the student,
the court stated that neither philosophical judgments nor generalized
medical concerns could replace specialized medical knowledge:
The evidence is clear that [none of the
school's physicians] had any facts which would permit them to make a
medical evaluation of the existence of a risk. In an understandable
abundance of caution, all three eventually concluded that the safest
course was to say that Richard could not play. I conclude that the
opinion of these three doctors cannot serve as a substantial
justification for the district's actions where their decision lacks a
medical basis.
E. Summary
The cases examined demonstrate the courts' consistent
movement towards adopting medical criteria for assessing public health
risks and responses. As the general legitimacy of state health action
has receded as an issue in police power cases, the language of 'rational
relations' and 'least restrictive means' has come to be defined by
medical criteria. The holdings of later police power cases make clear
the state's obligation to medically justify individual health actions.
This approach is explicit in modern cases decided under Federal
statutes, such as Carey, LaRocca and Grube.
The appropriate standard for state action is clear: a
state health action is justified even if it infringes on individual
rights if, 1) a medical risk assessment has defined the health threat
and its dimensions; and 2) the chosen response is the least restrictive
medically appropriate means of dealing with the risk. As the cases above
show, the standard has been applied and has worked. Recent cases
involving two sexually transmitted diseases, AIDS and herpes, have
suggested, however, that, because police power cases have left the
standard implicit, it is frequently misapplied or ignored. The danger of
an implicit standard is that courts will not recognize it, particularly
when under pressure from a frightened public. In such cases, it may be
tempting to reconcile opposing demands by 'making a philosophical and
not a medical judgment.'
Succumbing to this temptation, however, may create more problems than
it solves.
