2. 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
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,
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 United States Supreme Court. The Supreme Court
examined the issue of whether involuntary vaccination violated Jacobson's "'inherent
right of every freeman to care for his own body and health in such way as seems
to him best . . . "
The Court bifurcated
this question, first considering the right *341
of the state to invade
Jacobson's person by forcing him to submit to vaccination:
This court has more than once recognized it as a fundamental
principle that "persons and property are subjected to all kinds of restraints
and burdens, in order to secure the general comfort, health, and prosperity
of the State; of the perfect right of the legislature to do which no question
ever was, or upon acknowledged general principles ever can be made, so far as
natural persons are concerned."'
With this language, the Court stated the basic bargain of civilization:
an individual must give up some personal freedom in exchange for the benefits
of being in a civilized society. Jacobson sought to enjoy the benefit of his
neighbors being vaccinated for smallpox
without personally accepting the risks inherent in vaccination.
The Court rejected Jacobson's claim which it viewed as an attempt to be a free-rider
The Court next 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.
In later cases the courts have shown deference when
reviewing discretionary orders by public health officers.
Only the most general statutory language is needed to support discretionary
in contrast to the specificity
that is necessary for a penal deprivation of liberty. The prevention cases share
this acceptance of discretionary decision making, and in some ways they extend
the scope of discretion by permitting judges to make decisions that in a traditional
public health case would normally be made by an expert.
Board of Health v. Union
Common Pleas, 83 N.J.L. 392, 395, 85 A. 217, 218 (1912) discussed whether the
legislature had intended there to be a right of appeal to decisions by the Board
To assume that the legislature intended to confer a review of
a discretionary power of this character, vested in a statutory board, charged
with its exercise in critical situations, involving detriment to the life and
health of a community, is tantamount to a declaration that the police power
of the state is moribund and useless.
In re Irby, 113 Kan. 565,
215 P. 449 (1923).
Commonwealth v. Pear,
183 Mass. 242, 66 N.E. 719 (1903).
Id. (quoting Railroad
Co. v. Husen, 95 U.S. 465, 471 (1877)).
The control of smallpox
depends on the isolation of individual cases and the maintenance of a certain
level of immunity in the population at risk. If everyone other than Jacobson
was immunized, Jacobson would have a much lower probability of infection than
if all of his neighbors had declined to be vaccinated. This shared benefit is
called herd immunity. See J. LAST, PUBLIC HEALTH AND PREVENTIVE MEDICINE, 132
(1986). For a fascinating discussion of the medical knowledge of smallpox contemporaneous
with Jacobson, see W. OSLER, THE PRINCIPLES AND PRACTICE OF MEDICINE 128 (1905).
Vaccination for smallpox
has always carried some risk of serious and sometimes fatal complications. See
P. BEESON AND W. MCDERMOTT, TEXTBOOK OF MEDICINE 211 1975).
We are not prepared to
hold that a minority, residing or remaining in any city or town where smallpox
is prevalent, and enjoying the general protection afforded by an organized local
government, may thus defy the will of its constituted authorities, acting in
good faith for all, under the legislative sanction of the State.
197 U.S. at 37. An individual's attempt to enjoy the benefits
of society while escaping the concomitant restrictions on personal liberty is
a recurring theme in public health cases. Whether the risks and benefits are
linked, as in Jacobson, or indirectly related, such as cases quarantining disease
carriers, the courts have upheld intrusive measures that benefit society. While
the prevention cases also adopt this principle of subrogation of individual
liberty to societal good, they are less concerned with the corresponding benefits
to the restricted individual.
"It must be conceded that
some laymen, both learned and unlearned, and some physicians of great skill
and repute, do not believe that vaccination is a preventive of smallpox."' Id.
at 34 (citing Matter of Viemeister, 179 N.Y. 235, 239 (1903)).
"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."' Jacobson at 30.
"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 . . . . " City of New York v. New Saint Mark's Baths, 497
N.Y.S.2d 979, 983 (1986) (quoting Williams v. Mayor of Baltimore, 289 U.S. 36,
In Ex parte Kilbane, 32
Ohio St. 530, 530-531, 67 N.E.2d 22, 22- 23 (1945) the court upheld public health
regulations with the following provisions:
These regulations authorize the health commissioner of a city
to make or cause to be made an examination of a person if reasonably suspected
of having a venereal disease, and it found to be so infected, and whenever in
his opinion the public health requires it, to order such person placed in quarantine.
(emphasis in original).
Schall v. Martin, 467
U.S. 253, 279-80 (1984). See infra notes 282-84 and accompanying text.
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