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A. The Historical Perspective

Sanitation laws are the oldest public health measures.[15] The Romans developed the discipline of sanitary engineering, building water works and sewers.[16] The next advance in public health was the quarantine of disease-carrying ships and their passengers instituted in response *333 to the diseases brought back by the Crusaders.[17] The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments,[18] including death.[19]
*334 The American colonies adopted the English laws on the control of diseases. When the Constitution was written, public health power was left to the states,[20] because it was considered fundamental to the state's police power.[21] Soon after the Constitution was ratified, the states were forced to exercise their police power to combat an epidemic of yellow fever that raged in New York and Philadelphia. The flavor of that period was later captured in an argument before the Supreme Court:
For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia.[22]
The extreme nature of the actions, including isolating the federal government (which was sitting in Philadelphia at the time), were considered an appropriate response to the threat of yellow fever.[23] The terrifying nature of these early epidemics[24] predisposed the courts to grant *335 public health authorities a free hand in their attempts to prevent the spread of disease:
Every state has acknowledged power to pass, and enforce quarantine, health, and inspection laws, to prevent the introduction of disease, pestilence, or unwholesome provisions; such laws interfere with no powers of Congress or treaty stipulations; they relate to internal police, and are subjects of domestic regulation within each state, over which no authority can be exercised by any power under the Constitution, save by requiring the consent of Congress to the imposition of duties on exports and imports, and their payment into the treasury of the United States.[25]
The last great short-term epidemic in the United States was the Spanish Influenza in 1918-1919,[26] and the influenza epidemic of 1958-1959 killed 50,000 Americans in one winter.[27] Venereal diseases have always been a scourge,[28] rendering women sterile,[29] crippling babies,[30] and, in the case of syphilis, causing long-term illness and death. Tuberculosis was the leading cause of death for young adults as late as 1940, killing 60,000 people a year,[31] with perhaps twenty times that many infected at any one time.[32]
Acknowledging the public's justified fear of infectious disease, courts have granted broad powers to public health officers.[33] Only in the *336 last thirty years has a substantial segment of the population begun to question the value of public health restrictions. This diminishing support for public health restrictions is less rooted in an increased sensitivity to individual liberties than it is a product of the loss of fear of communicable diseases. With the advent of sanitary measures such as pasteurization of milk and the development of antibiotics, society's fear of communicable diseases has declined.
Few cases have challenged the constitutionality of state actions taken to protect citizens from a communicable disease.[34] The only successful attacks on such exercises of state police power have been based on federal preemption of state laws that restricted interstate commerce.[35] Yet, even interference with interstate commerce[36] is not always fatal to health regulations.[37] If a state regulation is substantially related to *337 health and safety, then the Supreme Court will uphold it.[38] This is true even if the regulation interferes with interstate commerce, such as would result from a cordon sanitaire in which all travel is forbidden.[39]
From vaccinations to quarantines, laws enacted to protect society have been upheld even when they force individuals to sacrifice their liberty and privacy.[40] Because modern American society has mostly lost its fear of infectious disease, it is easy to criticize public health restrictions as unnecessarily limiting individual liberty. But to understand United States public health jurisprudence, one must realize that it is based on a deeply rooted fear of pestilential diseases.

[15] See Leviticus 11-16.
[16] C. BOLDUAN & N. BOLDUAN, PUBLIC HEALTH AND HYGIENE 4 (1941) [hereinafter BOLDUAN].
[17] The word "quarantine"' derives from quadraginta, meaning forty. It was first used between 1377 and 1403 when Venice and the other chief maritime cities of the Mediterranean adopted and enforced a forty-day detention for all vessels entering their ports. BOLDUAN, supra note 16, at 7.
[18] The fourth species of offenses, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed. . . . The first of these offenses is a felony, but by the blessing of Providence for more than a century past, incapable of being committed in this nation. For by statute I Jac. I c. 31 . . . it is enacted, that if any person infected with the plague, or dwelling in any infected house, be commanded by the mayor or constable or other head officer of his town or vill to keep his house, and shall venture to disobey it he may be enforced . . . to obey such necessary command and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And further, if such person so commanded to confine himself goes abroad, and converses in company, if he has no plague sore upon him, he shall be punished as a vagabond by whipping, and be bound to his good behavior; but if he has any infectious sore upon him uncured, he then shall be guilty of felony. By the statute 26 George. II, c. 6 . . . the method of performing quarantine, or forty days probation, by ships coming from infected countries, is put in a much more regular and effectual order than formerly, and masters of ships, coming from infected places and disobeying the directions there given, or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends persons escaping from the lazarets, or places wherein quarantine is to be performed, and officers and watchmen neglecting their duty, and persons conveying goods or letters from ships performing quarantine.
4 W. BLACKSTONE, COMMENTARIES *161.
The most severe of these penalties were reserved for the masters of ships who disobeyed quarantine orders or concealed the presence of plague on their ships. The authority to quarantine ships is preserved in the earliest United States laws and court decisions. E.g., Gibbons v. Ogden, 9 Wheat. 1, 114, (1824):
New Hampshire passed her quarantine laws first, February 3d, 1789 . . . Connecticut passed hers in May, 1795. The laws of Maryland show the temporary continuation of those laws in that State, from 1784 to 1785, from 1785 to 1792, from 1792 to 1799, and so down to 1810 . . . The State of Virginia passed, 26th of December, 1792, 'an act reducing into one the several acts to oblige vessels coming from foreign parts, to perform quarantine;' . . . Georgia passed her quarantine law December 17th, 1793. Undoubtedly those laws derive their efficacy from the sovereign authority of the States; and they expressly restrain, and indeed prohibit, the entry of vessels into part of the waters and ports of the States. They are all so similar, that one or two may suffice as examples. The quarantine law of Georgia, s. 1. prohibits the landing of persons or goods coming in any vessel from an infected place, without permission from the proper authority; and enacts, that the said vessels or boats, and the persons and goods coming and imported in, or going on board during the time of quarantine; and all ships, vessels, boats, and persons, receiving any persons or goods under quarantine, shall be subject to such orders, rules and directions, touching quarantine, as shall be made by the authority directing the same. . . .
[19] In retrospect, it is difficult to determine whether death was meant as a punishment or was imposed to prevent future dangerous conduct.
[20] T. COOLEY, CONSTITUTIONAL LIMITATIONS 572 [hereinafter COOLEY].
[21] Police is in general a system of precaution, either for the prevention of crimes or of calamities. Its business may be distributed into eight distinct branches: 1. Police for the prevention of offenses; 2. Police for the prevention of calamities; 3. Police for the prevention of endemic diseases; 4. Police of charity; 5. Police of interior communications; 6. Police of public amusements; 7. Police for recent intelligence; 8. Police for registration.
J. BENTHAM, GENERAL VIEW OF PUBLIC OFFENSES, (quoted in COOLEY, supra note 20 at 572).
It is a well-recognized principle that it is one of the first duties of a state to take all necessary steps for the promotion and protection of the health and comfort of its inhabitants. The preservation of the public health is universally conceded to be one of the duties devolving upon the state as a sovereignty, and whatever reasonably tends to preserve the public health is a subject upon which the legislature, within its police power, may take action.
In re Halko, 246 Cal. 2d 553, 556, 54 Cal. Rptr. 661, 663 (1966).
[22] Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849).
[23] They may be thought to conflict strangely with the doctrine, that the Federal government alone has jurisdiction of commerce between the States, but it may serve as an illustration that the police laws of the States are paramount; that when men are trembling for their lives, no commercial regulations can oppose a moment's obstacle.
Id. at 341.
[24] Ten percent of the population of Philadelphia died of yellow fever between September and November, 1793. POWELL, supra note 7 at xiv.
[25] Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 616 (1840).
[26] This epidemic killed 200,000 people in the U.S. and 20,000,000 worldwide. A.W. CROSBY, EPIDEMIC AND PEACE 1918 (1976).
[27] The fear of influenza is still sufficiently strong to have fueled the great swine flu campaign, despite evidence that human beings are not endangered by swine flu. This failure of public health policy clearly contributed to the paralysis of public health officials confronted by AIDS. For a discussion of influenza in the U.S. and the swine flu non-epidemic, see R. NEUSTADT & H. FINEBERG, THE EPIDEMIC THAT NEVER WAS (1983). For a discussion of the successful investigation of Legionnaires' Disease, see G. THOMAS & M. MORGAN-WITTS, ANATOMY OF AN EPIDEMIC (1982).
[28] Cutler & Arnold, Venereal Disease Control by Health Departments in the Past: Lessons for the Present, 78 AM. J. PUB. HEALTH 372 (1988).
[29] M. PERNOLL & R. BENSON, CURRENT OBSTETRIC AND GYNECOLOGIC DIAGNOSIS & TREATMENT 718 (6th ed. 1987).
[30] Rathbun, Review, 10 SEXUALLY TRANSMITTED DISEASES 93 (1983); Rathbun, Congenital Syphilis: A Proposal for Improved Surveillance, Diagnosis, and Treatment, 10 SEXUALLY TRANSMITTED DISEASES 102 (1983).
[31] BOLDUAN, supra note 16, at 80. In 1915 there were more than 100,000 tuberculosis deaths per year, earning tuberculosis the moniker "white plague."' Id.
[32] The Center for Disease Control (CDC) predicts that by 1991 about 100,000 persons a year will die of diseases secondary to HIV infections. Proportionate to the population, this is about the same death rate as for tuberculosis in 1940. See generally R. DUBOS, THE WHITE PLAGUE (1952).
[33] Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380 (1902); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Board of health v. Ct. of Common Pleas, 83 N.J.L. 392, 85 A. 217 (1912); Ex Parte Company, 106 Ohio 50, 139 N.E. 204 (1922); Ex Parte Caselli, 62 Mont. 201, 204 P. 364 (1922); In re Halko, 246 Cal. 2d 553, 54 Cal Rptr. 661 (1966); Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973).
[34] Deference to disease control laws was philosophically inconsistent with Supreme Court decisions handed down during the same period in which substantive due process arguments were used to strike down laws intended to protect workers' health. See, e.g., Lochner v. New York, 198 U.S. 45 (1905).
[35] See Hoke v. United States, 227 U.S. 308 (1913); Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489 (1888); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 525 (1935); Sligh v. Kirkwood, 237 U.S. 52, 59- 60 (1915); Asbell v. Kansas, 209 U.S. 251 (1908); Railroad Co. v. Husen, 95 U.S. 465, 472 (1878).
[36] Counsel's arguments in Smith v. Turner supporting the authority of the state to prevent the entry of disease carriers were as follows:
It would be a truer illustration to suppose a citizen or an alien,--no matter whom, the President of the United States or the humblest individual that ever entered the harbour,--any person capable of being the vehicle of infectious disease,--to approach our city, bringing infection, bearing death to thousands,--an approach more dreadful than that of an invading army. He is repelled,--justly repelled,--by the express authority of the law of nations. (Vattel, Book 2, ch. 9, 123.)
By whom is he repelled? By the Federal government? Under what clause of the Constitution? Under which of its powers? Under its commercial power?--A traffic in contagion! a tariff upon disease! Under its war power?--A war with the king of terrors! No. The State, and the State alone, has the power, and alone is charged with the duty, of repelling disease, and of guarding its confines from the entrance of whatever might injure its citizens.
48 U.S. (7 How.) 283, 338 (1849).
[37] For the period of nearly a century since the government was organized Congress has passed no quarantine law, nor any other law to protect the inhabitants of the United States against the invasion of contagious and infectious diseases from abroad; and yet during the early part of the present century, for many years the cities of the Atlantic coast, from Boston and New York to Charleston, were devastated by the yellow fever. In later times the cholera has made similar invasions; and the yellow fever has been unchecked in its fearful course in the Southern cities, New Orleans especially, for several generations. During all this time the Congress of the United States never attempted to exercise this or any other power to protect the people from the ravages of these dreadful diseases. No doubt they believed that the power to do this belonged to the States. Or, if it ever occurred to any of its members that Congress might do something in that way, they probably believed that what ought to be done could be better and more wisely done by the authorities of the States who were familiar with the matter.
Morgan's Steamship Co. v. Louisiana Bd. of Health, 118 U.S. 455, 466 (1886).
[38] It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers, they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo, and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned, and punished for their offenses against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the States assume to regulate commerce or to interfere with the regulations of Congress, but because police laws . . . must of necessity have full and free operation, according to the exigency which requires their interference.
Thurlow v. Massachusetts (The License Cases), 46 U.S. (5 How.) 504, 632 (1847).
[39] That from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution.
Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 387 (1902); see also Asbell v. Kansas, 209 U.S. 251 (1908).
[40] Thomas v. Morris, 286 N.Y. 266, 269, 36 N.E.2d 141, 142 (1941) provides a good example of typical disease-control measures for typhoid carriers. The case concerned whether the identity of typhoid carriers should be kept confidential. Interestingly, the court found the notion of hiding the identity of typhoid carriers absurd.
The Sanitary Code which has the force of law . . . requires local health officers to keep the State Department of Health informed of the names, ages and addresses of known or suspected typhoid carriers, to furnish to the State Health Department necessary specimens for laboratory examination in such cases, to inform the carrier and members of his household of the situation and to exercise certain controls over the activities of the carriers, including a prohibition against any handling by the carrier of food which is to be consumed by persons other than members of his own household . . . . Why should the record of compliance by the County Health Officer with these salutary requirements be kept confidential? Hidden in the files of the health offices, it serves no public purpose except a bare statistical one. Made available to those with a legitimate ground for inquiry, it is effective to check the spread of the dread disease. It would be worse than useless to keep secret an order by a public officer that a certain typhoid carrier must not handle foods which are to be served to the public.

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