*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;
2) provide for judicial review through habeas corpus proceedings
rather than through prerestriction hearings;
3) use a scientific, rather than a criminal law, standard of
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
concerned with dangerous behavior rather than with communicable disease.
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).
See infra notes 71-74
and accompanying text.
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.
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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