THE PROPOSITION THAT A STATE’S POWER TO PROTECT THE PUBLIC HEALTH
SHOULD BE LIMITED TO ACTING ONLY IN RESPONSE TO CONTAGIOUS
DISEASES HAS NEVER BEEN ACCEPTED AND SHOULD NOT NOW BE ACCEPTED.
Several attempts have been made to convince courts that a state’s power to
protect the health of its citizens should be limited to those diseases that are
contagious or infectious to other human beings. Currently, no court has
accepted this argument and there is no such limit on any state’s police power.
An example of this argument can be found in
Kaul v. City of Chehalis, 277 P.2d
352, 356 (Wash. 1955). Here, the plaintiffs argued that because dental caries
was a non- contagious disease, it did not present an imminent threat to the
public and therefore was not rightfully within the reach of the state’s police
power. The court stated its unwillingness to refine Washington’s existing public
health law to include a distinction between contagious and non-contagious
diseases, explaining its belief that both were within reach of the state’s police
Likewise, in Rogowski v. City of Detroit, 132 N.W.2d 16 (Mich. 1965), the
plaintiffs advanced an argument attempting to limit the police power. The
Rogowski court concluded that there was no support for the proposition that a
disease’s status as contagious (as opposed to non- contagious) was an
essential element to the state’s power to protect the public health.
Id. at 25.
This issue was also raised in Dowell v. City of Tulsa, 273 P.2d 859, 860 (Ok.
1954), where the plaintiffs alleged that the legislature had never before
attempted regulation of a non-infectious disease, and that to do so was
unconstitutional. The Dowell court concluded that the legislature’s broad grant
of authority to Oklahoma cities to act in protection of their citizens in no way
evinced an intention by the legislature to exclude non-contagious diseases
from regulation. Id. at 861.
Similarly, in Chapman v. City of Shreveport, 74 So.2d 142, 146 (La. 1954), the
court rejected the argument that “fluoridation of the water to prevent tooth
decay is not a matter of public health, but a matter of private health and
hygiene.” In doing so, the court noted the seriousness of dental caries, and its
prevalence in Shreveport and around the nation, concluding that the fact that a
disease is not infectious does not in anyway lessen its detrimental effect on
the public. Id. (See also Froncek v. City of Milwaukee, 69 N.W.2d 242, 244
Another case, Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo.
1961), also discussed whether the status of dental caries as a non- contagious
disease should justify an argument that it was as such not subject to the
reaches of police power. Citing the U.S. Supreme Court case
Massachusetts, 197 U.S. 11 (U.S. 1905), the
Readey court stated that it did not
think the holding in Jacobson meant to imply that the legislature could only act
pursuant to its power to protect the public health if it was attempting to
regulate a contagious disease. Readey at 629- 30.
That dental caries is not a contagious disease does not lessen the gravity of
this problem in communities nationwide. Failure to takes steps to prevent
further increases in the occurrence of dental caries will result in this disease
becoming of epidemic severity. While several courts have considered the
argument from opponents to fluoridation that state police power should be
limited to taking action associated with contagious diseases only, these courts
have consistently found this argument to be without merit.