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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 health or individual health officers who are skilled in the science of public health. This deference is illustrated in the best known of the traditional public health cases, Jacobson v. Massachusetts,113 in which the scientific basis of a Massachusetts law requiring vaccination for smallpox was challenged.

Mr. Jacobson believed that the scientific basis for vaccination was unsound and that he would suffer if he was vaccinated. The Massachusetts Supreme Court found the statute consistent with the Massachusetts state constitution, and Jacobson appealed to the U.S. Supreme Court. The Court first ruled that being subject to vaccination was the price for living in society. (See Chapter 28.) The Court then considered Jacobson's right to contest the scientific basis of the Massachusetts vaccination requirement. Accepting that some reasonable people still questioned the efficacy of vaccination, the Court nonetheless found that it was within the legislature's prerogative to adopt one from many conflicting views on a scientific issue:

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. That was for the legislative department to determine in the light of all the information it had or could obtain.

In a recent case upholding the closing of a bathhouse as a disease control measure, the court showed the same deference to discretionary orders by public health officers:


It is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised. The judicial function is exhausted with the discovery that the relation between means and ends is not wholly vain and fanciful, an illusory pretense.[114]

113Jacobson v. Massachusetts. 197 US 11 (1905).

[114]City of New York v. New Saint Mark's Baths. 497 NYS2d 979, 983 (1986).


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