Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

The Power to Protect the Public Health


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

 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.

Related Pages:
Home ] Up ] Public Health System Core Functions and the Law ] The Legal Advice of Rumpole the Malevolent ] [ The Power to Protect the Public Health ] The Current Status of State Public Health Law ] Legal Basis for Large-Scale Quarantine ] The Evolution of Public Health Regulation ] Public Health Practices in the Colonial and Federalist Periods ] Ohio State Statutes ] Selected Ohio Cases ] Ex parte Company ] Application re Halko ] Bioterrorism and Public Health Law: the Critical Choices ] Biological Terrorism and Legal Measures ] Legal Authority and Health Disparities ]
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