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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[57] or individual health officers[58] 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,[59] 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,[60] 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 . . . "[61] 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."'[62]
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[63] without personally accepting the risks inherent in vaccination.[64] The Court rejected Jacobson's claim which it viewed as an attempt to be a free-rider on society.[65]
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,[66] the Court nonetheless found that it was within the legislature's prerogative to adopt one from many conflicting views on a scientific issue.[67]
*342 In later cases the courts have shown deference when reviewing discretionary orders by public health officers.[68] Only the most general statutory language is needed to support discretionary orders,[69] 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.[70]

[57] 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 of Health:
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.
[58] In re Irby, 113 Kan. 565, 215 P. 449 (1923).
[59] 197 U.S. 11 (1905).
[60] Commonwealth v. Pear, 183 Mass. 242, 66 N.E. 719 (1903).
[61] 197 U.S. at 26.
[62] Id. (quoting Railroad Co. v. Husen, 95 U.S. 465, 471 (1877)).
[63] 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).
[64] 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).
[65] 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.
[66] "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)).
[67] "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.
[68] "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, 42 (1933)).
[69] 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).
[70] Schall v. Martin, 467 U.S. 253, 279-80 (1984). See infra notes 282-84 and accompanying text.

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