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Due Process and Privacy

It has become fashionable to criticize public health laws 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 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.[117] 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 interfere with local health authorities' ability to deal with diseases such as drug-resistant tuberculosis. In many jurisdictions, health offices must bring their enforcement actions through the district attorney's office. These offices are so buried under crimes such as murder that it is impossible to get timely assistance with public health orders.

[117]Camara v. Municipal Court of City and County of San Francisco. 387 US 523 (1967).

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