Fluoridation is a Proper Use of the Police Power
The court’s power to review state legislative action taken pursuant to the police power is limited by the doctrine of separation of powers enunciated in the United States Constitution.
The United States Constitution does not grant any general police power to the federal government. Thus, that power – the power to make laws providing for the protection of the health, welfare, and morals of the public – is inherently reserved to the states. The following are among those actions that have been held to be valid exercises of state police power: prohibiting cigarette smoking in confined areas, see State v. Heidenhain, 7 So. 61 (La. 1890); requiring all citizens to receive vaccinations against contagious illness, see Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (U.S. 1905); requiring infected or impure goods to be quarantined, see Train v. Boston Disinfecting Co., 11 N.E. 929 (Mass. 1887). 16A Am.Jur.2d Constitutional Law §§ 363–365.
As governed by the doctrine of separation of powers, the ability of the courts to review legislative action taken by states pursuant to their police power is limited. Several state courts have been faced with the question of whether the addition of fluorides to the water is a proper exercise of police power. These courts have almost uniformly held that such action is proper. Chapman v. City of Shreveport, 74 So.2d 142 (La. 1954); Attaya v. Town of Gonzales, 192 So.2d 188 (La.App. 1st Cir. 1966); De Aryan v. Butler, Mayor, et al., 260 P.2d 98 (Cal.App. 4th Dis. 1953); Kaul v. City of Chehalis, 277 P.2d 352 (Wash. 1954) ; Rogowski v. City of Detroit, 132 N.W. 2d 16 (Mich. 1965); Kraus v. City of Cleveland, 121 N.E.2d 311 (Ohio 1954) ; Dowell v. City of Tulsa, 273 P.2d 859 (Ok. 1954).
For example, in De Aryan v. Butler, Mayor, et al., 260 P.2d 98, 101 (Cal.App. 4 th Dis. 1953), the court held that the decision to fluoridate the public water supply was well within the province of the state legislature, explaining “The legislature is possessed of the entire police power of the State, except as its power is limited by the provisions of the Constitution and other laws applicable thereto. Such police power is an indispensable prerogative of sovereignty and may not be legally limited even though at times its operation may seem harsh, so long as it is not unreasonable and arbitrarily invoked and applied.” Other state courts considering this issue have essentially resolved it in the same way.
Though the United States Supreme Court has never specifically considered whether the addition of fluorides to water is a proper exercise of police power, it has recognized that broad deference must be accorded to the state legislature in determining what actions are necessary to protect the public welfare. In Jacobson v. Commonwealth of Massachusetts, 195 U.S. 11 (1905) , the United States Supreme Court considered the argument that compelling citizens to receive a smallpox vaccination was an unconstitutional and improper exercise of the police power. In rejecting this argument the Supreme Court stated:
“If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Jacobson at 31.
Thus, a court cannot strike down an ordinance authorizing the fluoridation of water promulgated pursuant to the state’s police power without first determining that the action bears no reasonable relation to protecting the public health, is unreasonable and arbitrary, or is an invasion of the fundamental rights granted to individuals by the Constitution.
The wide latitude that courts must grant determinations made by state legislatures pursuant to their police power means that courts will have little opportunity to examine those substantive issues central to the fluoridation debate. Several courts faced with attacks against fluoridation statutes have clearly stated that when reviewing a decision made by the legislature based on careful evaluation of scientific evidence, the court must defer to the legislature’s decision as it is not within the power of the judiciary to make an evaluation of its own when there is evidence in the record sufficient to support the legislature’s conclusion. Attaya v. Town of Gonzales, 192 So. 2d 188, 192 (La.App. 1st. Cir. 1966); Froncek v. City of Milwaukee, 69 N.W.2d 242, 248 (Wis. 1955); Rogowski v. City of Detroit, 132 N.W.2d 16, 23 (Mich. 1965) .
For instance, in Froncek v. City of Milwaukee, 69 N.W.2d 242, 248 (Wisc. 1955), the court determined it was unnecessary to engage in a thorough review of the scientific evidence in the record. In so holding, the court noted the extensive evaluation undertaken by the city council and determined that this evaluation was more than sufficient to support the city council’s conclusion. Similarly, in Attaya v. Town of Gonzales, 192 So.2d 188, 192 (La.App. 1 st Cir. 1966), the plaintiffs alleged that the trial court had erred in failing to permit them to introduce evidence as to the potentially harmful effects of fluoride. The court rejected the plaintiff’s argument, explaining that courts must grant great latitude to legislative decisions upon review. “That fluoridation may be a controversial subject does not in itself justify the court substituting their judgment for that of the legislative body. The merits or demerits of the subject, in the absence of a clear showing of abuse of discretion, unreasonableness or capriciousness on the part of the legislative body, is solely within the province of the Governing Authority.” Id. at 193.
The court in Rogowski v. City of Detroit, 132 N.W.2d 16, 23 (Mich. 1965), likewise refused to reconsider the scientific determination made by the city council. The Rogowski court went further than have most courts in stating that a court may take judicial notice of the benefits provided by the addition of fluorides to the water based on extensive scientific evidence and other support found in the record. In Rogowski, the City of Detroit introduced into the record a significant number of affidavits and professional opinions supporting fluoridation. The court found it unnecessary to engage in its own evaluation of the evidence presented by both sides, and concluded it could “…take judicial notice of the common knowledge or belief, as evidenced by the above listed public statements, affidavits, and official actions, that fluoridation is beneficial to prevent dental caries and so improve public health.” Id.
Courts across the country have recognized the fluoridation of public water as a permissible exercise of police power. Judicial review of such legislative action is accordingly limited. When a municipality acts pursuant to a delegation of authority properly granted by the legislature, the court is without power to interfere unless it is determined that the municipal action is arbitrary or unreasonable.