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

such as a diagnosis of tuberculosis, which may be obtained through voluntary testing
of individuals at risk. In modern public health practice, statutorily required disease
reports usually provide the basis for the reasonable belief that an individual is
infected and should be restricted to protect the public health:
No patient can expect that if his malady is found to be of a dangerously
contagious nature he can still require it to be kept secret from those to whom,
if there was no disclosure, such disease would be transmitted. The
information given to a physician by his patient, though confidential, must, it
seems to us, be given and received subject to the qualification that if the
patient’s disease is found to be of a dangerous and so highly contagious or
infectious a nature that it will necessarily be transmitted to others unless the
danger of contagion is disclosed to them, then the physician should, in that
event, if no other means of protection is possible, be privileged to make so
much of a disclosure to such persons as is necessary to prevent the spread of
the disease. [Simonsen v. Swenson, 104 Neb. 224, 228, 177 N.W. 831, 832
(Neb. 1920)]
Update from article
3. Due Process and Privacy
Public health laws are often criticized as antiquated and thus unconstitutional. The
argument is that traditional public health laws do not provide the privacy or due
process protections required under modern constitutional law. It is true that standards
for protecting privacy and for criminal due process protections were strengthened
under the Earl Warren Court. None of these decisions, however, changed the
traditional standards for public health practice. Rather than extend the protections of
the Warren Court to public health matters, more recent Supreme Court cases clearly
favor the state’s right to control dangerous individuals. The recent case of Hendricks
v. Kansas, [Kansas v. Hendricks, 521 U.S. 346 (1997)] in which the Supreme Court
upheld the preventive detention of a sexual predator, specifically endorsed traditional
public health jurisprudence.
The more dangerous flaw in the argument that public health laws should provide
extensive procedural protections is that it ignores the costs of those protections.
Court proceedings take time and money. No health departments have sufficient legal
staffs to have a court hearing before every enforcement action. This has been
specifically recognized in several U.S. Supreme Court decisions. [Camara v.
Municipal Court of City and County of San Francisco, 387 U.S. 523 (1965)] The
administrative costs of elaborate due process requirements prevent the enforcement
of public health laws.
Some states have rewritten their communicable disease laws to provide more than
the protections mandated by the Constitution. These protections often interfere with
local health authorities’ ability to deal with diseases such as drug- resistant
tuberculosis. In many jurisdictions, health officers must bring their enforcement
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