Public health laws are often criticized as antiquated and thus unconstitutional. The argument is that traditional public health laws do not provide the privacy or due process protections required under modern constitutional law. It is true that standards for protecting privacy and for criminal due process protections were strengthened under the Earl Warren Court. None of these decisions, however, changed the traditional standards for public health practice. Rather than extend the protections of the Warren Court to public health matters, more recent Supreme Court cases clearly favor the state’s right to control dangerous individuals. The recent case of Hendricks v. Kansas, [Kansas v. Hendricks, 521 U.S. 346 (1997)] in which the Supreme Court upheld the preventive detention of a sexual predator, specifically endorsed traditional public health jurisprudence.

The more dangerous flaw in the argument that public health laws should provide extensive procedural protections is that it ignores the costs of those protections. Court proceedings take time and money. No health departments have sufficient legal staffs to have a court hearing before every enforcement action. This has been specifically recognized in several U.S. Supreme Court decisions. [Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1965)] The administrative costs of elaborate due process requirements prevent the enforcement of public health laws.

Some states have rewritten their communicable disease laws to provide more than the protections mandated by the Constitution. These protections often interfere with local health authorities’ ability to deal with diseases such as drug- resistant tuberculosis. In many jurisdictions, health officers must bring their enforcement actions through the district attorney’s office. These offices are so buried under crimes such as murder that it is impossible to get timely assistance with public health orders.