There is pressure, even from some public health professionals, to give individuals more rights under
public health laws than would be required by the Constitution. Indeed, this is the central legal issue
in public health law, as stated above. Some states have amended their disease control laws to
require court hearings before public health orders are issued against an individual. These hearings
are modeled after the proceedings that are required before a mentally ill person is involuntarily
committed to a psychiatric institution. Although such an expansion of individual rights seems
desirable, it comes at a high price: potential paralysis of public health enforcement.
Court hearings are expensive and time consuming. No health department has a sufficiently large
legal staff to have a court hearing before every enforcement action. Indeed, most health
departments do not have any legal staff. They are at the mercy of city or county legal departments
to provide attorneys when there is a hearing. Because most legal departments are under staffed,
public health enforcement actions usually have low priority.
Another problem with hearings is that they take time. A hearing first must be scheduled with a
judge, and then the person subject to the order must be served with notice of the hearing and given
time to hire an attorney and present a defense. This prevents timely restrictions that are critical to
effective disease control. Courts have recognized, in their rejection of requests for bail by persons
under disease control orders, that disease carriers cannot be allowed to go free while restrictions
are litigated, as the following argument shows:
To grant release on bail to persons isolated and detained on a quarantine order because they have
a contagious disease which makes them dangerous to others, or to the public in general, would
render quarantine laws and regulations nugatory and of no avail.[Varholy v Sweat, 15 So 2d 267,
270 (Fla 1943).]
A final problem with hearings, and perhaps the most serious, is that they give the judge the
opportunity to substitute her judgment for that of the public health officer. The proper role of the
judge (or jury) was established in the original case ruling that involuntary immunizations are
constitutionally permissible. The U.S. Supreme Court rejected the petitioner's claim that he was
entitled to have a jury determine whether the state's actions were reasonable. The Court ruled that
"It is no part of the function of a court or a jury to determine which of two modes was likely to be
most effective for the protection of the public against disease."[Jacobson v Massachusetts, 197 US
11358, 363 (1905)]
Despite such clear judicial support for deference to agency decision makers, many judges are
swayed by the emotional appeal of the case against restriction and reject the public health
authority's recommendations. Such conflicts are most common in disputes over closing unsanitary
restaurants owned by friends of the local politicians. They can also arise in disease control cases
when there is political pressure to not restrict individuals because they belong to a politically
powerful group or because the judge does not understand the danger to others posed by the
infected person.
