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 power. Id.

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 (Wis. 1955)).

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 Jacobson v. 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.