Public Health Law Map - Beta 5 - Medical and Public Health Law Site

(1840)]
Few cases have challenged the constitutionality of state actions taken to protect
citizens from a communicable disease. The only successful attacks on such exercises
of state police power have been based on federal preemption of state laws that
restricted interstate commerce or on laws that were mere shams for racial
discrimination. Yet even interference with interstate commerce is not always fatal to
health regulations. If a state regulation is substantially related to health and safety, the
Supreme Court will uphold it. This is true even if the regulation interferes with
interstate commerce, such as would result from a cordon sanitaria in which all travel is
forbidden. From vaccinations to quarantines, laws enacted to protect society have been
upheld even when they force individuals to sacrifice liberty and privacy.
B. Legal Standards for Public Health Authority
As courts have reviewed the constitutionality of laws that ostensibly protect the public
health and safety, they have developed consistent standards for defining an acceptable
exercise of public health authority. The courts have allowed substantial restrictions on
individual liberty as part of public health laws that seek to prevent future harm rather
than to punish past actions. If a court finds that a law is directed at prevention rather
than punishment, it will allow the state to do the following:
1. Rely on expert decision makers.
2. Provide for judicial review through habeas corpus proceedings rather than through
prerestriction hearings.
3. Use a scientific, rather than a criminal law, standard of proof.
Although a state’s power to protect the public health is broad, it is restricted to
preventing future harm. The state may not punish a person under its public health
police powers. Administrative deprivations of liberty are tolerated only if their purpose
is not punitive. The distinction between allowable restrictions and forbidden
punishment is sometimes finely drawn. For example, being put in the community
pesthouse was seldom a pleasant prospect, and with the closing of pesthouses, public
health restrictions have frequently been carried out in prisons and jails. In one such
case, the court rejected the petitioner’s claim that he was being punished without due
process, concluding, “While it is true that physical facilities constituting part of the
penitentiary equipment are utilized, interned persons are in no sense confined in the
penitentiary, and are not subject to the peculiar obloquy which attends such
confinement.” [Ex parte McGee, 105 Kan. 574, 581, 185 P. 14, 16 (1919).]
1. Expert Decision Makers
Public health jurisprudence is based on a deference to scientific decision making.
This deference may be expressed by incorporating scientific standards into
legislation or by delegating the right to make public health decisions to boards of
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