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*338 B. Hallmarks of Traditional and Modern Public Health Cases

As courts have reviewed the constitutionality of laws that ostensibly protect the public health and safety, they have developed consistent standards for what is an acceptable exercise of public health authority. The courts have allowed substantial restrictions on individual liberty pursuant to public health laws that seek to prevent future harm rather than to punish past actions. If a court finds that a law is directed at prevention rather that punishment, it will allow the state to:
1) rely on expert decisionmakers;[41]
2) provide for judicial review through habeas corpus proceedings rather than through prerestriction hearings;[42] or
3) use a scientific, rather than a criminal law, standard of proof.[43]
Prevention cases share some or all of these three characteristics. Traditional public health cases and prevention cases, however, are distinguished by their facts: prevention decisions[44] are concerned with dangerous behavior rather than with communicable disease.

[41] See In re Halko, 246 Cal.2d 553, 557-58, 54 Cal. Rptr. 661, 664 (1966); see also infra notes 57-70 and accompanying text. This broad authority frees public health officials from the detailed "least restrictive alternative"' analysis required in other situations where the public good is less certain. See San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 51 (1973).
[42] See infra notes 71-74 and accompanying text.
[43] See infra notes 83-84 and accompanying text. Nothing prevents a state from providing the same due process protections in its public health laws as it does for criminal cases. To do so, however, makes the public health laws unworkable. Criminal due process would force the health officer to wait until it could be proven that a person was intentionally spreading a communicable disease, but by that time, more people would be infected by the carrier's actions.
[44] Jurisprudentially, prevention cases are "lost cases."' Since they involve criminal conduct, they have been pigeonholed as criminal law cases. Conversely, public health cases are seen as civil rights cases and are considered in isolation from criminal law cases.

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