A. The Historical Perspective
Sanitation laws are the oldest public health measures.
The Romans developed the discipline of sanitary engineering, building water
works and sewers.
The next advance in public
health was the quarantine of disease-carrying ships and their passengers instituted
in response *333
to the diseases brought back by the Crusaders.
The English statutory and common law recognized the right of the state to quarantine
and limit the movement of plague carriers. Blackstone observed that disobeying
quarantine orders merited severe punishments,
The American colonies adopted the English laws on
the control of diseases. When the Constitution was written, public health power
was left to the states,
because it was
considered fundamental to the state's police power.
Soon after the Constitution was ratified, the states were forced to exercise
their police power to combat an epidemic of yellow fever that raged in New York
and Philadelphia. The flavor of that period was later captured in an argument
before the Supreme Court:
For ten years prior, the yellow-fever had raged almost annually
in the city, and annual laws were passed to resist it. The wit of man was exhausted,
but in vain. Never did the pestilence rage more violently than in the summer
of 1798. The State was in despair. The rising hopes of the metropolis began
to fade. The opinion was gaining ground, that the cause of this annual disease
was indigenous, and that all precautions against its importation were useless.
But the leading spirits of that day were unwilling to give up the city without
a final desperate effort. The havoc in the summer of 1798 is represented as
terrific. The whole country was roused. A cordon sanitaire was thrown around
the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between
New York and Philadelphia.
The extreme nature of the actions, including isolating the federal
government (which was sitting in Philadelphia at the time), were considered
an appropriate response to the threat of yellow fever.
The terrifying nature of these early epidemics
predisposed the courts to grant *335
public health authorities a free
hand in their attempts to prevent the spread of disease:
Every state has acknowledged power to pass, and enforce quarantine,
health, and inspection laws, to prevent the introduction of disease, pestilence,
or unwholesome provisions; such laws interfere with no powers of Congress or
treaty stipulations; they relate to internal police, and are subjects of domestic
regulation within each state, over which no authority can be exercised by any
power under the Constitution, save by requiring the consent of Congress to the
imposition of duties on exports and imports, and their payment into the treasury
of the United States.
The last great short-term epidemic in the United States was
the Spanish Influenza in 1918-1919,
the influenza epidemic of 1958-1959 killed 50,000 Americans in one winter.
Venereal diseases have always been a scourge,
rendering women sterile,
and, in the case of syphilis, causing long-term illness and death. Tuberculosis
was the leading cause of death for young adults as late as 1940, killing 60,000
people a year,
with perhaps twenty times
that many infected at any one time.
Acknowledging the public's justified fear of infectious disease,
courts have granted broad powers to public health officers.
Only in the *336
last thirty years has a substantial segment of the population
begun to question the value of public health restrictions. This diminishing
support for public health restrictions is less rooted in an increased sensitivity
to individual liberties than it is a product of the loss of fear of communicable
diseases. With the advent of sanitary measures such as pasteurization of milk
and the development of antibiotics, society's fear of communicable diseases
Few cases have challenged the constitutionality of state actions
taken to protect citizens from a communicable disease.
The only successful attacks on such exercises of state police power have been
based on federal preemption of state laws that restricted interstate commerce.
Yet, even interference with interstate commerce
is not always fatal to health regulations.
If a state regulation is substantially related to *337
health and safety,
then the Supreme Court will uphold it.
This is true even if the regulation interferes with interstate commerce, such
as would result from a cordon sanitaire in which all travel is forbidden.
From vaccinations to quarantines, laws enacted to protect society
have been upheld even when they force individuals to sacrifice their liberty
Because modern American society
has mostly lost its fear of infectious disease, it is easy to criticize public
health restrictions as unnecessarily limiting individual liberty. But to understand
United States public health jurisprudence, one must realize that it is based
on a deeply rooted fear of pestilential diseases.
See Leviticus 11-16.
C. BOLDUAN & N. BOLDUAN,
PUBLIC HEALTH AND HYGIENE 4 (1941) [hereinafter BOLDUAN].
The word "quarantine"'
derives from quadraginta, meaning forty. It was first used between 1377 and
1403 when Venice and the other chief maritime cities of the Mediterranean adopted
and enforced a forty-day detention for all vessels entering their ports. BOLDUAN,
supra note 16, at 7.
The fourth species of
offenses, more especially affecting the commonwealth, are such as are against
the public health of the nation; a concern of the highest importance, and for
the preservation of which there are in many countries special magistrates or
curators appointed. . . . The first of these offenses is a felony, but by the
blessing of Providence for more than a century past, incapable of being committed
in this nation. For by statute I Jac. I c. 31 . . . it is enacted, that if any
person infected with the plague, or dwelling in any infected house, be commanded
by the mayor or constable or other head officer of his town or vill to keep
his house, and shall venture to disobey it he may be enforced . . . to obey
such necessary command and, if any hurt ensue by such enforcement, the watchmen
are thereby indemnified. And further, if such person so commanded to confine
himself goes abroad, and converses in company, if he has no plague sore upon
him, he shall be punished as a vagabond by whipping, and be bound to his good
behavior; but if he has any infectious sore upon him uncured, he then shall
be guilty of felony. By the statute 26 George. II, c. 6 . . . the method of
performing quarantine, or forty days probation, by ships coming from infected
countries, is put in a much more regular and effectual order than formerly,
and masters of ships, coming from infected places and disobeying the directions
there given, or having the plague on board and concealing it, are guilty of
felony without benefit of clergy. The same penalty also attends persons escaping
from the lazarets, or places wherein quarantine is to be performed, and officers
and watchmen neglecting their duty, and persons conveying goods or letters from
ships performing quarantine.
4 W. BLACKSTONE, COMMENTARIES *161.
The most severe of these penalties were reserved for the masters
of ships who disobeyed quarantine orders or concealed the presence of plague
on their ships. The authority to quarantine ships is preserved in the earliest
United States laws and court decisions. E.g., Gibbons v. Ogden, 9 Wheat. 1,
New Hampshire passed her quarantine laws first, February 3d,
1789 . . . Connecticut passed hers in May, 1795. The laws of Maryland show the
temporary continuation of those laws in that State, from 1784 to 1785, from
1785 to 1792, from 1792 to 1799, and so down to 1810 . . . The State of Virginia
passed, 26th of December, 1792, 'an act reducing into one the several acts to
oblige vessels coming from foreign parts, to perform quarantine;' . . . Georgia
passed her quarantine law December 17th, 1793. Undoubtedly those laws derive
their efficacy from the sovereign authority of the States; and they expressly
restrain, and indeed prohibit, the entry of vessels into part of the waters
and ports of the States. They are all so similar, that one or two may suffice
as examples. The quarantine law of Georgia, s. 1. prohibits the landing of persons
or goods coming in any vessel from an infected place, without permission from
the proper authority; and enacts, that the said vessels or boats, and the persons
and goods coming and imported in, or going on board during the time of quarantine;
and all ships, vessels, boats, and persons, receiving any persons or goods under
quarantine, shall be subject to such orders, rules and directions, touching
quarantine, as shall be made by the authority directing the same. . . .
In retrospect, it is difficult
to determine whether death was meant as a punishment or was imposed to prevent
future dangerous conduct.
T. COOLEY, CONSTITUTIONAL
LIMITATIONS 572 [hereinafter COOLEY].
Police is in general a
system of precaution, either for the prevention of crimes or of calamities.
Its business may be distributed into eight distinct branches: 1. Police for
the prevention of offenses; 2. Police for the prevention of calamities; 3. Police
for the prevention of endemic diseases; 4. Police of charity; 5. Police of interior
communications; 6. Police of public amusements; 7. Police for recent intelligence;
8. Police for registration.
J. BENTHAM, GENERAL VIEW OF PUBLIC OFFENSES, (quoted in COOLEY,
supra note 20 at 572).
It is a well-recognized principle that it is one of the first
duties of a state to take all necessary steps for the promotion and protection
of the health and comfort of its inhabitants. The preservation of the public
health is universally conceded to be one of the duties devolving upon the state
as a sovereignty, and whatever reasonably tends to preserve the public health
is a subject upon which the legislature, within its police power, may take action.
In re Halko, 246 Cal. 2d 553, 556, 54 Cal. Rptr. 661, 663 (1966).
Smith v. Turner, 48 U.S.
(7 How.) 283, 340-41 (1849).
They may be thought to
conflict strangely with the doctrine, that the Federal government alone has
jurisdiction of commerce between the States, but it may serve as an illustration
that the police laws of the States are paramount; that when men are trembling
for their lives, no commercial regulations can oppose a moment's obstacle.
Id. at 341.
Ten percent of the population
of Philadelphia died of yellow fever between September and November, 1793. POWELL,
supra note 7 at xiv.
Holmes v. Jennison, 39
U.S. (14 Pet.) 540, 616 (1840).
This epidemic killed 200,000
people in the U.S. and 20,000,000 worldwide. A.W. CROSBY, EPIDEMIC AND PEACE
The fear of influenza
is still sufficiently strong to have fueled the great swine flu campaign, despite
evidence that human beings are not endangered by swine flu. This failure of
public health policy clearly contributed to the paralysis of public health officials
confronted by AIDS. For a discussion of influenza in the U.S. and the swine
flu non-epidemic, see R. NEUSTADT & H. FINEBERG, THE EPIDEMIC THAT NEVER
WAS (1983). For a discussion of the successful investigation of Legionnaires'
Disease, see G. THOMAS & M. MORGAN-WITTS, ANATOMY OF AN EPIDEMIC (1982).
Cutler & Arnold, Venereal
Disease Control by Health Departments in the Past: Lessons for the Present,
78 AM. J. PUB. HEALTH 372 (1988).
M. PERNOLL & R. BENSON,
CURRENT OBSTETRIC AND GYNECOLOGIC DIAGNOSIS & TREATMENT 718 (6th ed. 1987).
Rathbun, Review, 10 SEXUALLY
TRANSMITTED DISEASES 93 (1983); Rathbun, Congenital Syphilis: A Proposal for
Improved Surveillance, Diagnosis, and Treatment, 10 SEXUALLY TRANSMITTED DISEASES
BOLDUAN, supra note 16,
at 80. In 1915 there were more than 100,000 tuberculosis deaths per year, earning
tuberculosis the moniker "white plague."' Id.
The Center for Disease
Control (CDC) predicts that by 1991 about 100,000 persons a year will die of
diseases secondary to HIV infections. Proportionate to the population, this
is about the same death rate as for tuberculosis in 1940. See generally R. DUBOS,
THE WHITE PLAGUE (1952).
Compagnie Francaise de
Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380 (1902); Jacobson
v. Massachusetts, 197 U.S. 11 (1905); Board of health v. Ct. of Common Pleas,
83 N.J.L. 392, 85 A. 217 (1912); Ex Parte Company, 106 Ohio 50, 139 N.E. 204
(1922); Ex Parte Caselli, 62 Mont. 201, 204 P. 364 (1922); In re Halko, 246
Cal. 2d 553, 54 Cal Rptr. 661 (1966); Reynolds v. McNichols, 488 F.2d 1378 (10th
Deference to disease control
laws was philosophically inconsistent with Supreme Court decisions handed down
during the same period in which substantive due process arguments were used
to strike down laws intended to protect workers' health. See, e.g., Lochner
v. New York, 198 U.S. 45 (1905).
See Hoke v. United States,
227 U.S. 308 (1913); Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465,
489 (1888); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 525 (1935); Sligh
v. Kirkwood, 237 U.S. 52, 59- 60 (1915); Asbell v. Kansas, 209 U.S. 251 (1908);
Railroad Co. v. Husen, 95 U.S. 465, 472 (1878).
Counsel's arguments in
Smith v. Turner supporting the authority of the state to prevent the entry of
disease carriers were as follows:
It would be a truer illustration to suppose a citizen or an
alien,--no matter whom, the President of the United States or the humblest individual
that ever entered the harbour,--any person capable of being the vehicle of infectious
disease,--to approach our city, bringing infection, bearing death to thousands,--an
approach more dreadful than that of an invading army. He is repelled,--justly
repelled,--by the express authority of the law of nations. (Vattel, Book 2,
ch. 9, 123.)
By whom is he repelled? By the Federal government? Under what
clause of the Constitution? Under which of its powers? Under its commercial
power?--A traffic in contagion! a tariff upon disease! Under its war power?--A
war with the king of terrors! No. The State, and the State alone, has the power,
and alone is charged with the duty, of repelling disease, and of guarding its
confines from the entrance of whatever might injure its citizens.
48 U.S. (7 How.) 283, 338 (1849).
For the period of nearly
a century since the government was organized Congress has passed no quarantine
law, nor any other law to protect the inhabitants of the United States against
the invasion of contagious and infectious diseases from abroad; and yet during
the early part of the present century, for many years the cities of the Atlantic
coast, from Boston and New York to Charleston, were devastated by the yellow
fever. In later times the cholera has made similar invasions; and the yellow
fever has been unchecked in its fearful course in the Southern cities, New Orleans
especially, for several generations. During all this time the Congress of the
United States never attempted to exercise this or any other power to protect
the people from the ravages of these dreadful diseases. No doubt they believed
that the power to do this belonged to the States. Or, if it ever occurred to
any of its members that Congress might do something in that way, they probably
believed that what ought to be done could be better and more wisely done by
the authorities of the States who were familiar with the matter.
Morgan's Steamship Co. v. Louisiana Bd. of Health, 118 U.S.
455, 466 (1886).
It is for this reason
that quarantine laws, which protect the public health, compel mere commercial
regulations to submit to their control. They restrain the liberty of the passengers,
they operate on the ship which is the instrument of commerce, and its officers
and crew, the agents of navigation. They seize the infected cargo, and cast
it overboard. The soldier and the sailor, though in the service of the government,
are arrested, imprisoned, and punished for their offenses against society. Paupers
and convicts are refused admission into the country. All these things are done,
not from any power which the States assume to regulate commerce or to interfere
with the regulations of Congress, but because police laws . . . must of necessity
have full and free operation, according to the exigency which requires their
Thurlow v. Massachusetts (The License Cases), 46 U.S. (5 How.)
504, 632 (1847).
That from an early day
the power of the States to enact and enforce quarantine laws for the safety
and the protection of the health of their inhabitants has been recognized by
Congress, is beyond question. That until Congress has exercised its power on
the subject, such state quarantine laws and state laws for the purpose of preventing,
eradicating or controlling the spread of contagious or infectious diseases,
are not repugnant to the Constitution.
Compagnie Francaise de Navigation a Vapeur v. Louisiana State
Bd. of Health, 186 U.S. 380, 387 (1902); see also Asbell v. Kansas, 209 U.S.
Thomas v. Morris, 286
N.Y. 266, 269, 36 N.E.2d 141, 142 (1941) provides a good example of typical
disease-control measures for typhoid carriers. The case concerned whether the
identity of typhoid carriers should be kept confidential. Interestingly, the
court found the notion of hiding the identity of typhoid carriers absurd.
The Sanitary Code which has the force of law . . . requires
local health officers to keep the State Department of Health informed of the
names, ages and addresses of known or suspected typhoid carriers, to furnish
to the State Health Department necessary specimens for laboratory examination
in such cases, to inform the carrier and members of his household of the situation
and to exercise certain controls over the activities of the carriers, including
a prohibition against any handling by the carrier of food which is to be consumed
by persons other than members of his own household . . . . Why should the record
of compliance by the County Health Officer with these salutary requirements
be kept confidential? Hidden in the files of the health offices, it serves no
public purpose except a bare statistical one. Made available to those with a
legitimate ground for inquiry, it is effective to check the spread of the dread
disease. It would be worse than useless to keep secret an order by a public
officer that a certain typhoid carrier must not handle foods which are to be
served to the public.
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