I have put together as a supplement to my Constitutional Law in Contemporary America, West Academic (2017) a packet entitled Public Health and the Constitution.. I put it together over the last couple of days so it is still a work in progress. It contains an intro and four cases.
The intro is below.
Public health crises such as the recent concerns over the spread of the Corona virus (Covid 19) across the world and the United States in 2020 or spread of the detection of the Ebola virus in America in 2014 implicate concerns that test the intersection of public health and safety versus individual rights. These are issues distinct from public security issues implicated by events such as the terrorist attacks against the United States on September 11, 2001. In the case of the latter, concerns of future or recurrent military or terrorist activity against the United States may be viewed as criminal or national defense issues and treated as such under rules that address criminal due process rights or the scope of American military authority.
In the case of the spread of a virus or other public health issue, individuals who are ill are not criminal defendants. Nonetheless, because they might be able to infect others, they pose a threat of harm to others. Individuals seriously ill with easily transmitted diseases or viruses such as Tuberculous, influenza, measles, mumps, or small pox for example can threaten the health and safety of others. If they are left to move about freely, they could infect others, jeopardizing others. Additionally, what if some individuals fail to take certain precautions, such as take vaccinations, and they therefore risk transmitting certain illnesses to others, what can be done?
One the one hand all of us are entitled to our personal freedom to move about or act in ways we wish. Conversely, what happens if our actions endanger others, perhaps not to a criminal level, but still to a degree that it causes harm to us or others. When can society take action? Philosopher John Stuart Mill in his classic 1849 book On Liberty contended that there are limits that society has over an individual and that unless one’s action affect others, a person’s personal liberty cannot be restricted, even for their own good. Respect for personal freedom is a hallmark of the Bill of Rights and the Constitution, but rights have never been held to be absolute. There may be times when the government may need to act to restrict the rights of an individual to protect the rights of others. Matters of public health raise that question.
Questions of public health are typically matters for states to address. The reasons are twofold. One, states possess something called the “police power.” The police power is the authority of a state government to enact laws to protect the health, safety, welfare, and morals of its residents. The police power is the basic authority of states to enact criminal and public health measures. The US Supreme Court has ruled that the police power is an inherent power of states, but that it is not a power given to the US government by the Constitution.
Two, for the United States Government to regulate health matters directly it has to rely primarily on it Commerce Clause authority as found in Article I, Section 8, clause 3 which states that Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." According to the Supreme Court in Gibbons v. Ogden, 22 U.S. 1 (1824), the US government cannot regulate commercial activity unless it affects interstate commerce. While since that decision the Supreme Court has vacillated over the scope of the Commerce Clause, it is generally agreed today that if an activity can be shown to impact interstate commerce then the federal government may act.
What this means is that the US government has limited authority to take direct action to regulate public health; it must show that health matters such as the spread of a virus affect interstate commerce. Until a few years ago few would have thought that the Commerce Clause would have excluded addressing public health matters. Yet when the Supreme Court in National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012) struck down as unconstitutional the individual mandate to buy health insurance under the Affordable Care Act (Obamacare), it now raises questions about what Congress may do to regulate public health under this clause. What needs to be shown is how a public health crisis, such as Covid 19, impacts interstate Commerce.
However, in the Sebelius case, the Court did uphold the individual mandate under a different part of the Constitution. It was the General Welfare Clause located in Article I, Section 8, Clause 1. This Clause empowers Congress to raise money and spend it for the general welfare. Congress may be able to use this Clause to provide for lots of money to address public health issues, but its authority here may still be far more limited than what states have under the police power authority.
Four cases are presented here that look at how the Constitution addresses public health measures. The first, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), examines the constitutionality of state mandatory vaccination laws. Here the Court upholds them, finding that they do not violate any personal liberty interests or rights.
The second case, Jew Ho v. Williamson, 103 F. 10 (N.D. CA 1900), looks at the constitutionality of a state quarantine law. What makes the case fascinating is that the claims in this case where that the arguments in favor of a Tuberculous quarantine law were challenged on two grounds. One, there was no detected Tuberculous and, second, the claims that there were that necessitated it were a pretext to discriminate against Chinese-Americans. The case is important for discussing how laws may be used to classify a group of people to be targeted by public health laws and how the courts will approach these laws. In general, while wide deference will be given to their constitutional validity, the Courts will still police them to ensure that states do not exceed their authority.
In O'Connor v. Donaldson, 422 U.S. 563 (1975), the Supreme Court ruled that a person involuntarily committed to a state mental hospital because he was adjudicated to be mentally ill was unconstitutional. More specifically, the Court ruled that the loss of liberty was a protected constitutional interest and that merely being mentally ill was not a ground to involuntarily deprive someone of their liberty. There had to be a showing that the person posed a threat to himself or others. O’Connor is important because it suggests that merely being ill may not justify quarantining someone; you have to show how that person posing a danger to self or others.
Finally, in Best v. St. Vincents Hospital and Bellevue Hospital, 2003 WL 21518829, a Court had to decide if the State of New York followed appropriate procedures in quarantining a person with Tuberculous. The Court discusses how one cannot simply pick up and detain a person. There must be some due process or hearing according to established procedures before the government can involuntarily detain and quarantine an individual.
Overall, these cases suggest that there are important limits on the ability of the US and state (and local) governments when it comes to some types of public health action. Mandatory vaccinations or quarantines may be constitutionally permissible, but there will be a significant burden on the government to show real harm and that, at least in the case of quarantines, one is afforded due process and a hearing to challenge the decision.
As you read these decisions ask yourself these questions:
* How certain must the harm be to justify a public health measure such as a mandatory vaccination or quarantine?
* How serious of a harm or threat must the public health issue be to justify a mandatory vaccination or quarantine?
* Do public officials have the authority to ban or limit public gatherings to protect public health? What if individuals wish to gather and protest an order regulating public health, would they have a First Amendment right to do that?
* Could a state target a quarantine against a specific group of people, such as people from China, whom they suspect have the Corona Virus?
* If a person is detained or suspected of having the Corona Virus, what type of hearing and when is required before they may be subjected to a quarantine?
* Is a geographic quarantine of an area constitutional? If so, under what conditions?
