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The Future of Public Health Law

Published online by Cambridge University Press:  24 February 2021

Lawrence O. Gostin
Lawrence O. Gostin*
Affiliation:
American Society of Law & Medicine, Harvard School of Public Health and Legislative Counsel to the U.S. Senate Labor
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Abstract

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decisionmaking criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This Article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria denning “public health necessity” to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and storage of public health information; (4) empower public health officials to select from a graded series of less restrictive alternatives in dealing with public health problems.

Type
Articles
Information
American Journal of Law & Medicine , Volume 12 , Issue 3-4: Public Health & The Law , 1986 , pp. 461 - 490
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1986

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Footnotes

*

This Article is an expansion of the author's earlier work, Gostin, The Future of Communicable Disease Control, 64 MILBANK MEMORIAL FUND Q. 79 (1986). Ideas on a new statutory framework for confidentiality and antidiscrimination are incorporated in Senator Kennedy's AIDS Federal Policy Bill of 1987.

References

1 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905).

2 All of the states have exercised their police power through the enactment of statutes and regulations restricting individual liberty, in order to impede the spread of infectious diseases. W. Curran, L. Gostin & M. Clark, Acquired Immunodeficiency Syndrome: Legal and Regulatory Policy (1986) (Harvard School of Public Health, contract number 282-86-0032).

3 E.g., CAL. HEALTH & SAFETY CODE § 3191 (West 1979) (provides for compulsory examination of individuals infected with venereal disease).

4 E.g., 10 N.Y. ADMIN. CODE § 2.6 (1985) (requires health officers to discover contacts and unreported cases upon receiving a report of a case of a communicable disease).

5 E.g., GA. CODE ANN. § 31-17-3 (1985) (provides for isolation or arrest of persons afflicted with a venereal disease).

6 E.g., N.J. STAT. ANN. § 26:4-2 (West 1987) (authorizes the department and local boards of health to maintain and enforce proper and sufficient quarantine whenever deemed necessary).

7 E.g., N.Y. CITY HEALTH CODE § 3.01 (1987) (authorizes the commissioner of health to take necessary actions to assure maintenance of public health, the prevention of disease, or the safety of city residents); see also City of N.Y. v. New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S.2d 979 (1986).

8 See, e.g., Moore v. Armstrong, 149 So. 2d 36 (Fla. 1963) (enforcement of quarantine to protect the public health); Dalli v. Board of Educ, 358 Mass. 753, 267 N.E.2d 219 (1971) (vaccination order enforced); Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967) (mandatory X-ray of prisoner not assault and battery, where infection is suspected or X-ray is routine); cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536 (1942) (sterilization statute held unconstitutional; court acknowledged that case “touche[d] a sensitive and important area of human rights”).

9 For a thorough review of law and policy related to AIDS, see generally the special symposium issue in 15 LAW MED. & HEALTH CARE, edited by William J. Curran and Lawrence Gostin.

10 W. Curran, L. Gostin & M. Clark, supra note 2.

11 See, e.g., Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900) (court found that quarantine area was too large and was unrelated to effective disease control).

12 G. ROSEN, A HISTORY OF PUBLIC HEALTH 326 (1958); see also W. MCNEIL, PLAGUES AND PEOPLES 236-37 (1976).

13 E.g., immunization for polio.

14 E.g., penicillin for gonorrhea.

15 See generally Merritt, Communicable Disease and Constitutional Law: Controlling AIDS, 61 N.Y.U. L. REV. 739 (1986)Google Scholar; Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 HOFSTRA L. REV. 53 (1985)Google Scholar.

16 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25-29 (1905) (court held compulsory smallpox vaccination to be a constitutional exercise of the police power; restraint on liberty was essential to secure public health); City of Little Rock v. Smith, 163 S.W.2d 705, 707-08 (Ark. 1942) (“private rights … must yield in the interest of the public security,” venereal disease “affects the public health so intimately and so insidiously, that considerations of delicacy and privacy may not be permitted to thwart measures necessary to avert the public peril.”).

17 Arizona v. Southern Pacific Co., 61 Ariz. 66, 145 P.2d 530 (1943) (quoting State ex rel. McBride v. Superior Court, 103 Wash. 409, 174 P. 973, 976 (1918)).

18 197 U.S. 11 (1905); see also Mugler v. Kansas, 123 U.S. 623 (1887).

19 Jacobson, 197 U.S. at 31.

20 Id. at 28.

21 Id.

22 See City of Cleburne, Tex. v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).

23 See Lawton v. Steele, 152 U.S. 133 (1894); Jew Ho v. Williamson, 103 F. 102 (C.C.N.D. Cal. 1900).

24 The early courts were not entirely consistent in requiring medical proof that the subject of compulsory public health powers was actually infectious. See, e.g., State v. Rackowski, 86 Conn. 677, 681, 86 A. 606, 608 (1913) (“common knowledge tells us that contagious diseases may be communicated by those who have been exposed.”). See generally Kirk v. Wyman, 83 S.C. 372, 65 S.E. 387 (1909).

25 Railroad Company v. Husen, 95 U.S. 465, 471-73 (1887) (state prohibition of transporting foreign cattle, whether diseased or not, placed an unconstitutional burden on interstate commerce); Ex parte Martin, 83 Cal. App. 2d 164, 188 P.2d 287 (1948) (public health officials must have “probable cause” to quarantine pending an opportunity for further investigation or examination); Ex parte Shepard, 51 Cal. App. 49, 195 P. 1077 (1921) (court specifically rejected proposition that mere suspicion is sufficient to uphold a quarantine order); Ex parte Arata, 52 Cal. App. 380, 198 P. 814 (1921) (court required that reasonable ground must exist to support the claim that the person is afflicted with venereal disease); Ex parte Dillon, 44 Cal. App. 239, 186P. 170(1919) (marital status cannot constitute “reasonable cause” for suspicion of venereal disease); People v. Tait, 261 Ill. 197, 103 N.E. 750 (1913) (family member not residing in household affected by scarlet fever should not be quarantined).

26 Smith v. Emery, 11 A.D. 10, 42 N.Y.S. 258 (1896).

27 Id. at 260.

28 103 F. 10 (C.C.N.D. Cal. 1900).

29 Id. at 22.

30 83 S.C. 372, 65 S.E. 387 (1909).

31 Id. at 382-83, 65 S.E. at 391.

32 Id.

33 Id. The court was less rigorous, however, in reviewing the conditions of quarantine in Ex parte Martin, 83 Cal. App. 2d 164, 188 P.2d 287 (1948). The court supported giving the health officers discretion as to the place of quarantine. The county jail was designated as a quarantine area for people with venereal disease despite uncontested evidence that it was overcrowded and had been condemned by a legislative investigating committee. The court supported the Attorney General's position that “[W]hile jails, as public institutions, were established for purposes other than confinement of diseased persons, occasions of emergency or lack of other public facilities for quarantine require that jails be used.” Id. at 170, 188 P.2d at 291.

34 See Note, The Constitutional Rights of AIDS Carriers, 99 HARV. L. REV. 1274 (1986)CrossRefGoogle Scholar; Gostin, The Future of Communicable Disease Control, 64 MILBANK MEMORIAL FUND Q. 79 (1986).Google Scholar

35 Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969).

36 Loving v. Virginia, 388 U.S. 1, 12 (1966); Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978).

37 See Griswold v. Connecticut, 381 U.S. 479 (1965).

38 See, e.g., Addington v. Texas, 441 U.S. 418, 425-27 (1979) (evaluating the standard of proof required for civil commitment of the mentally ill); Korematsu v. United States, 323 U.S. 214, 218 (1944) (rinding that nothing short of apprehension by proper authorities of the gravest imminent danger to public safety can justify a curfew or forced removal from one's home).

39 See Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969) (compelling state interest is necessary to justify restrictions on citizens’ right to vote); Dunn v. Blumstein, 405 U.S. 330, 337 (1971).

40 UTAH CODE ANN. § 30-1-2 (Supp. 1987).

41 Carey v. Population Servs. Int'l, 431 U.S. 678 (1976).

42 Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973).

43 See Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

44 106 S. Ct. 2841 (1986). See generally Stoddard, Bowers v. Hardwick: Precedent by Personal Predilection, 54 U. CHI. L. REV. 648 (1987).CrossRefGoogle Scholar

45 Bowers, 106 S. Ct. at 2844.

46 The Supreme Court has yet to decide whether infringements on the right to heterosexual privacy, such as fornication statutes, are constitutional. It is arguable, however, that the Court would more closely scrutinize public health measures which restrict heterosexual activities than it would those proscribing homosexual relations.

47 City of Cleburne, Tex. v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).

48 Id. at 447-50.

49 Id. at 459 (opinion of Marshall, J., concurring in part) (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527 (1959)).

50 Id. at 445, 450.

51 Id. at 447 (quoting United States Dep't of Agric. v. Moreno, 413 U.S. 528, 535 (1973)).

52 See, e.g., Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900), discussed infra at text accompanying notes 89-91.

53 CAL. GOV't CODE § 202 (West 1980) (authority to confine for protection of public peace or health).

54 N.Y. PUB. HEALTH LAW § 2100 (McKinney 1985) (communicable disease provisions and powers, duties of local boards of health and health officers).

55 E.g., Hancock v. Cox, 212 Va. 215, 183 S.E.2d 149 (1971) (statute requiring civil commitment of alcoholics struck down as unconstitutionally vague).

56 See generally Developments in the Law, Civil Commitment of the Mentally Ill, 87 HARV. L. REV. 1190 (1974).CrossRefGoogle Scholar

57 E.g., Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) (statute permitting civil commitment without adequate notice or opportunity for hearing violates due process); Johnson v. Soloman, 484 F. Supp. 278 (D. Md. 1979)(civil commitment based on assessment of juvenile's “best interests” is unconstitutionally vague).

58 CAL. HEALTH & SAFETY CODE § 3050 (West 1979).

59 E.g., FLA. STAT. ANN. § 384.28(1) (West Supp. 1987); N.J. STAT. ANN. § 26:4-2 (West 1987). But see CONN. GEN. STAT. ANN. § 19a-5 (West 1986) (duties of Public Health Commissioner more detailed).

60 See, e.g., N.Y. PUB. HEALTH LAW § 2301 (McKinney 1985). For example, the court in State v. Snow, 230 Ark. 746, 324 S.W.2d 532 (1959) was able to thwart a state effort to quarantine an individual for tuberculosis only because initial judicial approval was required by the authorizing statute before enforcement could take place.

61 E.g., N.J. STAT. ANN. §§ 26:4-32 (applicable to prostitutes), § 26:4-49.6 (West 1987) (applicable to migrant workers).

62 N.J. STAT. ANN. § 26:4-32 (West 1987).

63 See, e.g., Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972); In re Seefield, 2 MENTAL DISABILITY L. REP. 363 (Wis. Cir. Ct. 1977) (sequel to Lessard; the Wisconsin statute enacted in response to Lessard was held unconstitutional); Colyar v. Third Judicial Dist. Court, 469 F. Supp. 424 (D. Utah 1979); Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980).

64 Vitek v. Jones, 445 U.S. 480 (1980) (inmate has liberty interest in preventing transfer from prison to mental institution).

65 Addington v. Texas, 441 U.S. 418 (1979)(“clear and convincing proof” is required for indefinite involuntary commitment).

66 Mathews v. Eldridge, 424 U.S. 319 (1976).

67 263 S.E.2d 661 (W. Va. 1980).

68 Id. at 662.

69 E.g., CAL. HEALTH & SAFETY CODE § 3194 (West 1979); FLA. STAT. ANN. § 384.01 (West 1986). Sometimes diseases are classified as neither communicable nor venereal, but simply as “reportable” or “notifiable.” This indicates that the disease is not subject to control measures, but that it must be reported to the public health department. The public health department collects this data for epidemiologic purposes, to determine the spread pattern of the disease within the population.

70 E.g., CAL. HEALTH & SAFETY CODE § 3191 (West 1979); ILL. ADMIN. CODE tit. 77, § 690 (1985 & Supp. 1986).

71 See generally Field, & Sullivan, AIDS and the Criminal Law, 15 LAW MED. & HEALTH CARE 46 (1987).CrossRefGoogle Scholar

72 E.g., CAL. HEALTH & SAFETY CODE § 199.20-21 (West Supp. 1987); WISC. STAT. ANN. § 146.025(5) (West Supp. 1987).

73 See A. BRANDT, NO MAGIC BULLET: A SOCIAL HISTORY OF VENEREAL DISEASE IN THE UNITED STATES SINCE 1880 84-92 (1985); see also Parmet, supra note 15, at 66-67.

74 Parmet, supra note 15, at 66.

75 Field & Sullivan, supra note 71.

76 Ex parte Company, 106 Ohio St. 50, 53, 139 N.E. 204, 205 (1922).

77 Ex parte Martin, 83 Cal. App. 2d 164, 170, 188 P.2d 287, 291 (1948).

78 TEX. REV. CIV. STAT. ANN. art. 4419b-l (Vernon Supp. 1988).

79 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905); State v. Rackowski, 86 Conn. 677, 680, 86 A. 606, 608 (1913); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (the right of a state to protect the public health can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity); Rock v. Carney, 216 Mich. 280, 297, 185 N.W. 798, 799 (1921); Wilson v. Alabama G.S.R. Co., 77 Miss. 714, 719, 28 So. 567, 569 (1900). But see Kaul v. City of Chehalis, 45 Wash. 2d 616, 623, 27 P.2d 352, 356 (1954).

80 83 S.C. 372, 65 S.E. 387 (1909); see text accompanying notes 22-33 supra.

81 Kirk, 83 S.C. at 377, 65 S.E. at 390.

82 Id.

83 86 Conn. 677, 86 A. 606 (1913).

84 Id. at 681, 86 A. at 608.

85 A. BRANDT, supra note 73.

86 106 Ohio St. 50, 139 N.E. 204.

87 Id. at 53, 139 N.E. at 205.

88 People ex rel. Baker v. Strautz, 386 Ill. 360, 367, 54 N.E.2d 441, 444 (1944).

89 103 F. 10 (C.C.N.D. Cal. 1900).

90 Id. at 22.

91 Id. at 24.

92 New York State Assoc, for Retarded Children, Inc. v. Carey, 612 F.2d 644 (2d Cir. 1979).

93 Id. at 645.

94 Id. at 650.

95 Id.

96 District 27 Comm. School Bd. v. Board of Educ., 130 Misc. 2d 398, 502 N.Y.S.2d 325 (Sup. Ct. 1986).

97 502 N.Y.S.2d at 335.

98 School Bd. v. Arline, 107 S. Ct. 1123 (1987).

99 Id. at 1129.

100 See generally A. BRANDT, supra note 73.

101 See Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV. L. REV. 1285, n.4 (1985)CrossRefGoogle Scholar (twenty-three states and the District of Columbia still have criminal statutes proscribing private, consensual sodomy).

102 Bowers v. Hardwick, 106 S. Ct. 2841 (1986) (state criminal sanctions for consensual homosexual sodomy upheld as applied).

103 See generally D. ALTMAN, AIDS IN THE MIND OF AMERICA: THE SOCIAL, POLITICAL, AND PSYCHOLOGICAL IMPACT A NEW EPIDEMIC (1986).

104 See Hammonds v. Aetna Casualty & Sur. Co., 243 F. Supp. 793, 801-02 (N.D. Ohio 1965); Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985); cf. Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962).

105 Alberts v. Devine, 395 Mass. 59, 69, 479 N.E.2d 113, 120 (1985).

106 The right to privacy has been expressly protected in several state constitutions. See, e.g., CAL. CONST, art. 1, § 1.

107 See supra notes 37, 41, 44 and accompanying text.

108 429 U.S. 589 (1977).

109 758 F.2d 1545 (11th Cir. 1985).

110 Id. at 1547.

111 E.g., FLA. STAT. ANN. § 381.231 (West 1986); ILL. REV. STAT. ch. 126, ¶ 21 (West Supp. 1987).

112 See notes 70-72 supra and accompanying text.

113 People ex rel. Director of Public Health v. Calvo, 89 Ill. 2d 130, 137, 432 N.E.2d 223, 226 (1982).

114 In re Baker's Mut. Ins. Co. of New York, 301 N.Y. 21, 25-26, 92 N.E.2d 49, 51 (1950); McGowan v. Metropolitan Life Ins. Co., 141 Misc. Rep. 834, 182 N.E. 81 (1932).

115 52 Fed. Reg. 21, 797 (1987) (to be codified at 42 C.F.R. Part 2).

116 Gostin, & Ziegler, A Review of AIDS-Related Legislative and Regulatory Policy in the United States, 15 LAW MED. & HEALTH CARE 5, 13 (1987)CrossRefGoogle Scholar (reviewing, among others, statutes in California, Florida, Hawaii, Kentucky, Maine, Massachusetts and Wisconsin). See generally Nanula, Protecting Confidentiality in the Effort to Control AIDS, 24 HARV. J. ON LEGIS. 315 (1987).Google Scholar

117 This tort theory is examined in Gostin, Curran, & Clark, The Case Against Compulsory Casefinding in Controlling AIDS: Testing, Screening and Reporting, 12 AM. J.L. & MED. 7 (1986).Google Scholar

118 One suggested way of balancing confidentiality and the duty to warn is to authorize, but not compel, a physician to warn only in cases where the physician has a reasonable belief that there is an immediate and serious danger to an identifiable third party. The statute would eliminate the absurd situation where good faith disclosure to prevent an avoidable harm can result in civil or criminal penalties. It also eliminates the equally absurd scenario of a physician being compelled by law to betray a confidence which he or she feels ethically bound to keep. This is the balance adopted in the AIDS Federal Policy Bill of 1987, introduced by Senator Edward Kennedy.

119 See generally National Conference of Commissioners on Uniform State Laws, UNIFORM HEALTH CARE INFORMATION ACT §2-101, 9 U.L.A. 502 (Supp. 1985).

120 See Centers for Disease Control, Recommended Additional Guidelines for HIV Antibody Counseling and Testing in the Prevention of HIV Infection and AIDS (Apr. 30, 1987).

121 Lake v. Cameron, 267 F. Supp. 155 (D.C. Cir. 1967); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972); see text accompanying notes 39-40 supra.