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. The law was followed in the smallpox epidemic of 1702. In 1717, a pesthouse hospital was built with public money on Spectacle Island in Boston Harbor. By the 1720s, the Massachusetts quarantine system had become regularized. Some public health historians feel that this system may have helped to reduce the incidence of disease in New England.

  The interconnection between restraint and provision was also apparent in the colony's approach to inoculation. The story of the spread of inoculation in New England is a fascinating one. The idea of inoculating individuals who had never contracted smallpox with smallpox pus, so that they would contract a relatively mild form of the illness and thereby gain resistance to a severe episode, was introduced to the colonies in 1716 by the Puritan theologian Cotton Mather. Mather, who first learned of the practice from a slave and later read about it in the Transactions of the Royal Philosophical Society, called a consultation of physicians to consider inoculation. Most physicians were opposed, but one, Zabdiel Boylston, began to inoculate patients. As word of Boylston's practice spread, the Boston selectmen and the justices of the peace warned him not to continue the inoculations. Several ministers, including Increase and Cotton Mather, then published a signed letter inthe newspaper supporting Boylston and the practice of inoculation. A furious pamphlet war ensued as Boylston disregarded the selectmen's warnings and continued to use inoculation in his practice.

  In response, the selectmen enacted the first of many regulations respecting inoculation. The ordinance did not prohibit the act, but regulated it, requiring the inoculated to be sent to pesthouses or isolated in their homes during the course of their outbreak. This regulation was not foolish: although inoculated individuals tended to develop mild forms of the disease, they had active cases and were capable of spreading the virulent form. During the next half century, as the popularity of inoculation grew, the selectmen and the General Court gave inoculation their frequent attention. Regulations of inoculation were often accompanied by provisions for free inoculation of the poor. By 1764, the city of Boston was actively involved in providing free inoculations and follow-up care for the poor. With the aid of local physicians who agreed to inoculate the poor free of charge, almost 5000 Bostonians were inoculated during the epidemic of 1764. Poor inhabitants received treatment either gratis from physicians or with the support of the municipal overseers of the poor. By the end of the 1764 epidemic, almost everyone had acquired some form of immunity to the disease.

  As the public health historian John Blake has noted, Boston's regulation of smallpox inoculation implicitly expressed the principle that government has a role to play in protecting the health of the public. As with the quarantine regulations, that role invariably contained both regulatory and care-providing aspects. In the case of smallpox, the two were almost inseparable. Although many of the well-to-do who could afford private inoculations displayed little concern for their less wealthy neighbors, public officials understood implicitly the public nature of contagious disease. Unless inoculation was monitored and made available to all, it would actually spread the disease and pose a greater harm to the public's health. In the face of a casually contagious disease such as smallpox, only inclusive public policies could actually benefit the public health.

  The public role in protecting health was also reflected in the wide range of public health regulations in colonial Massachusetts. Although governmental activity was quite limited as compared to our own era, the colonial public bodies were extremely active in regulating and providing for the public health. For example, public sanitation regulations in Massachusetts go back as far as 1634, when Boston authorities ordered that " n o person shall leave any fish or garbage near the said Bridge or common landing place between the two creeks whereby any annoyance may come to the people that pass that way ...." Laws regulating the quality of bread date from 1646, and those aimed at preventing fires go back as far as 1679.

  The middle of the seventeenth century witnessed the rapid growth of public health regulation. In 1649, the legislature regulated the practice of medicine "[f]orasmuch as the Law of God allows no man to impair the Life or Limbs, of any Person, but in a judicial way." Furthermore, in an era when filth was believed to be the cause of much disease, the General Court enacted legislation aimed at preventing the pollution of Boston Harbor. In 1666, Boston appointed a public scavenger to keep the streets free of live and dead animals. In 1684, slaughterhouses, seen as a source of filth and thereby disease, were regulated.

  By the eighteenth century, public health regulations had become a common feature of colonial life. These regulations were completely intermeshed with a mercantilist society's regulation of trade. For example, the distillation of rum through lead was forbidden, probably to protect the rum trade as well as to protect the public's health. After the Revolution, the sale of unwholesome food was forbidden. Sanitation became an increasing concern. In 1786, Boston appointed salaried inspectors to police the sanitation of the streets. Although the system never worked well, the public authorities continued to focus on sanitation with increased effort after the yellow fever epidemic of 1795.

  In the early years of the Republic, long before the sanitary and progressive movements of the late 1800s, the General Court had chartered a public aqueduct corporation to supply fresh water to the city of Boston, and had enacted legislation providing for a standing board of health for Boston and health powers for other local officials. Once again the statutory scheme interwove regulation and protection. A statute of 1797 authorized selectmen to

    take care and make effectual provision in the best way they can, for the preservation of the inhabitants, by removing such sick or infected person or persons, and placing him or them in a separate house or houses, and by providing nurses, attendance, and other assistance and necessaries for them; which ... shall be at the charge of the parties themselves, their parents or masters (if able) or otherwise at the charge of the town or place whereto they belong: and in case such person or persons are not inhabitants of any town or place within the State, then at the charge of the Commonwealth.

  Once Edward Jenner's new smallpox vaccine was introduced into the Commonwealth, the General Court enacted a law requiring every town lacking a board of health to appoint a vaccination commission, effectively providing at least partial public subsidy for the vaccination of all inhabitants. Although the success of this mandate was questionable, thousands were vaccinated and the incidence of smallpox continued to decline. Moreover, the public bodies of Massachusetts had shown once again the necessity of public health regulation and the relationship between limits on freedom and provision of care.

 B. New York and the Mid-Atlantic Colonies

  The pervasiveness of public health regulation and provision in colonial Massachusetts was unique among the colonies. The pattern of such laws, however, was not unique. Quarantines were features of most port towns. By 1700, almost every large town provided health care for the poor. Regulation and provision of care was commonplace. The story of public health law in New York is illustrative.

  As in New England, public health regulation in colonial New York was not the province of professionals or bureaucrats. It was ad hoc, disorganized, and often reactive to the threats facing the colony. Only as the population grew and the need intensified did structure emerge. Nevertheless, responsibility predated organization. As in Massachusetts, it was often intermingled with mercantile trade regulations. Yet, it was part and parcel of the colonial landscape. The protection of health and the provision of care were simply assumed to be responsibilities of local and provincial governments.

  The early years of the European settlements of what became New York saw few public health or sanitary problems. The small population, combined with a favorable climate and harbor, kept public health problems to a minimum. When epidemics did arrive, officials usually reacted. In response to a smallpox threat in 1622, authorities of the English settlement at East Hampton, Long Island instituted what might have been the earliest recorded local quarantine of individuals in the European colonies in North America.

  Extensive public health regulations in the New Amsterdam settlement, later to become New York City, date back to the 1650s. Although the Dutch West India Company did not provide for the care of the sick or poor, a small hospital had been built by 1658. That same year also saw the first of many attempts to regulate privies. Butchering and fire regulations were also among the earliest of public health laws.

  After England conquered the Dutch colony in 1664, public health regulations increasingly resembled the British and New England pattern. Governmental authority to regulate for the preservation of health was assumed. Activities that were seen as affecting the public health, such as the practice of medicine or the provision of public-drinking water, were subject to legal control. When necessary, individual freedom of movement was restricted by quarantine regulations. Inoculation, thought to be a hazard to public health, was banned in New York City in 1747, although enforcement was difficult.

  As in New England, these restrictive measures were merely one side of a coin whose other side consisted of prevention and provision. Inhabitants of the colony benefited, at least theoretically, from the disease prevention brought by the restrictions. Those who became ill and suffered the further deprivations wrought by nature and restrictive laws received care, even when they could not afford it on their own. By the late 1680s, the city of New York not only paid the salary of a physician for the poor, it also frequently appropriated funds to pay private physicians for similar efforts. Although their care differed in comfort, if not in quality, from that given to those who could pay, individuals who were quarantined were inevitably provided with care.

   This regulatory pattern was augmented in the eighteenth century by an increasing concern with sanitation. Although seventeenth century physicians understood that smallpox was contagious, the etiology of yellow fever and other diseases remained unknown. As the seventeenth century progressed, scientists increasingly disputed whether epidemics or "pestilential fevers" could be attributed to contagious contacts or the putrefaction of organic matter, known as miasma. While this debate between the "contagionists" and "sanitarians" was quite fierce and lasted into the nineteenth century, historians have noted that public officials followed a pragmatic and politically safe policy: they tended to pursue both contagionist and sanitary policies. While quarantine laws and isolation requirements were kept in place, sanitary laws were strengthened. After a prominent member of the Governor's Council reported that yellow fever resulted from "slimy wet grounds" and inadequate sewerage, the Provincial Assembly responded by passing a comprehensive sanitary act prohibiting certain noxious trades from working in parts of the city and placing restrictions on the disposal of waste. In that same year of 1744, the Common Council passed a sweeping sanitary ordinance which increased the fines for violations of the sanitary laws and divided the fines collected between private prosecutors and provision for the poor. The sanitary movement continued in 1774 when money was appropriated to build a public reservoir. That project, however, was derailed by the outbreak of the Revolution.

  The years following the Revolution saw an increase in some types of public health regulation despite the gradual rejection of mercantilism. The first influences of laissez faire led in the 1780s to the relaxation of older mercantile regulations affecting trades such as butchering and baking. At the same time, the post-Revolutionary era saw renewed civic attention to the problems of health and sanitation. In 1784, the colonial quarantine laws were officially reenacted by the state of New York. A new and stringent medical licensing law was enacted. In 1790, the New York City Dispensary was established with private and public monies to provide free medical care for the poor. Public money also helped support private institutions which provided vaccinations for the poor in the early years of the nineteenth century.

  The yellow fever epidemics of the 1790s greatly influenced public health policies in the mid-Atlantic states and led to more structured and vigilant approaches. New York City responded to the crisis by isolating the ill and enacting sanitation orders. In 1796, New York State enacted comprehensive health legislation which created the New York City Health Office, granted the city authority to enact sanitary ordinances, and further developed the city's quarantine system. When another major epidemic struck in 1798, the city council appointed a special health committee with almost unlimited powers. Care for the ill and provision for the poor were among the committee's major objectives. During the 1798 epidemic, New York City spent $11,600 and the state spent $45,000. A report following the epidemic urged that the city be given even more authority to inspect buildings, enforce sanitation, and plan for a fresh water supply. The report stressed that the public good had to take precedence over any individual inconveniences that might occur. Following receipt of the report, the city council drafted and the state legislature enacted legislation authorizing the appointment of street commissioners to carry out all laws for "the cleansing of the City and promoting the Health thereof."

  New York's response to the yellow fever epidemic can be contrasted with Philadelphia's response to the calamitous yellow fever epidemic of 1793. Public health regulation was less firmly entrenched in Philadelphia than in New York and the New England states. Throughout the eighteenth century, fewer measures were taken in Philadelphia than elsewhere to prevent the spread of smallpox and inoculation was not regulated. Although the city had quarantine laws and a port physician, sufficient money was not appropriated to ensure compliance with the procedures. Perhaps as a result, smallpox ravaged the city repeatedly. Given that history, it was not surprising that disaster ensued when yellow fever struck in 1793. Many municipal officials fled the city. For a time, civil authority effectively broke down.

  The legislature initially responded to the crisis by reenacting the quarantine laws and granting the Governor extraordinary powers. When official response proved inadequate, however, as public officials either died or fled, Mayor Matthew Clarkson hastily convened a special civic committee of citizen volunteers with himself as president. It was given extraordinary authority to control the situation. The committee commandeered a vacant estate to establish a hospital and orphanage. It distributed food, firewood, clothing, and medicine. It buried the dead and cleaned up the city. Without any understanding of the transmission of yellow fever, however, the committee's efforts proved ineffective. Before the epidemic was over, some ten to fifteen percent of the population had died of the disease.

  The story of the 1793 epidemic raises several key points about public health regulation during the colonial and early federal periods. First, as was universally evident throughout the period, the response to disease was ad hoc. There was no standing bureaucracy. As was common, a citizen's committee performed much of the work.

  This lack of organized structure, however, was not an expression of laissez faire ideology. Although the Mayor of Philadelphia eventually called upon a citizen's committee to help the city through the epidemic, the authorities did not assume the epidemic to be a matter of private responsibility. In fact, in the beginning of the crisis, the Governor promised public funding and the municipal Guardians of the Poor took responsibility for the establishment of a poor hospital. The citizens committee took over only after civil authority had prove inadequate. Moreover, the committee, with the mayor at its helm, clearly acted as a public body wielding de facto public authority.

  The inhabitants of federalist Philadelphia, like others facing epidemics during this period, never questioned whether government should exercise extraordinary authority in response to the epidemic. The debate was over the nature of the response. Positions depended upon views of the etiology of the disease as well as politics. Contagionists, who were most often Federalists, favored quarantine and the closing of the port, which just coincidentally would have helped keep out the French refugees from the Haitian revolution. Sanitarians, also known as localists, were most often Jeffersonian Republicans. Not surprisingly, they favored sanitary reform and keeping the port open to the French. But almost everyone agreed on the need for some public response. In fact, a year after the epidemic, a standing board of public health was finally established to prevent the type of crisis that had occurred.

  The practice actually followed in Philadelphia paralleled the pattern evident in New England and New York. Extraordinary authority was wielded, although ultimately through unusual channels. Individual rights of property and movement were subordinated. At the same time, care was provided, especially to the growing numbers of poor. Once again, the forfeiture of liberty was tied to protection and provision. The exercise of governmental authority was connected to public obligation.

C. Public Health in the South

  In the South, public health was less developed during the colonial period than it was in New England and the mid-Atlantic states. Several factors seem to have contributed to the relative paucity of public health regulations. One, undoubtedly, was the rural character of the region. As has been noted above, public health is integrally related to urbanization and population density, which makes it obvious that public health measures such as sanitation are public goods. In a rural environment, a community's interdependency and mutual vulnerability with respect to disease is less obvious.

  The second unique feature of Southern life was the pervasiveness of slavery. Although slaveholders had a private self-interest in maintaining to some degree the health of their slaves, attitudes toward public health likely differed in a society in which a large part of the population was not considered to be citizens, but rather property. In a slave-maintaining society, the health of the population enslaved was less a matter of public responsibility than of the slaveowner's self-interest. Given the economic and social organization of the ante-bellum South, it is not surprising that government assistance for the poor and ill was less common than in other parts of the country.

  Despite these distinctions, governments in the pre-Revolutionary South were assumed to possess, and did exercise, public health authority. For example, in 1620 the Privy Council ordered that guest houses be built in Virginia for care of the sick. Towns paid local physicians to care for the poor.

  One of the earliest recorded cases of individuals being isolated for purposes of disease prevention occurred in West Hampton County, Virginia in 1667, where a colonel, acting as public health officer, issued a proclamation warning all families infected with smallpox not to go out until thirty days after their infection. In 1698, a maritime quarantine was instituted in Charleston. Another law of the same year required charterers of vessels to care for sick or injured seamen. By the mid- nineteenth century, quarantines were widely employed in most port cities.

  The history of public health laws in Charleston, one of the South's largest urban areas, provides insight into the region's views and practices. Legislation attempting to prevent disease and provide care was commonplace. Public authority over sanitation dates back to 1704 when a law regulating slaughterhouses and privies was prefaced by the statement that " t he air is greatly infected and many maladies and other intolerable diseases daily happen." An act to build a pesthouse was passed in 1707 and an act to provide medical care for the poor in 1712. Throughout the eighteenth century, the South Carolina legislature was continually revisiting the question of provision for the poor, but despite repeated legislation, the inadequacy of the care was widely recognized.

  By the late eighteenth century, inoculation was also regulated in Charleston and most Southern states, although to less effect than in New England. An important example is Virginia's 1760 law imposing severe penalties upon any person who imported any "various or infectious matter" for the purpose of inoculating against smallpox while also creating a strict licensing regime for administering inoculations. The law was amended in 1777 to replace the licensing scheme with one which permitted greater access to inoculation but required strict quarantining during the procedure. It also provided that the state would pay the expenses of anyone who could not afford the procedure. Some governments went further, conducting mass inoculations.

   The history of colonial and early federal public health in the South is sketchy and somewhat atypical. Public health regulation appears to have been less extensive there than elsewhere. Provision for the poor was made only inconsistently. The reforms and centralization that followed the yellow fever epidemics of the 1790s did not occur throughout the region. The regulations that did exist, however, demonstrate that there was little doubt about the government's authority to provide public health protection, even though the continual need to do so may have been less clearly appreciated in a largely rural environment. Moreover, the relationship between public health and the provision of care was established less firmly in a society skewed by the slave system.