ABA Health eSource
 December 2005 Volume 2 Number 4

Spanish Influenza in New Mexico, 1918–1919: The Role of State and Local Public Health Legal Measures
by Clifford M. Rees, JD, Adjunct Professor, University of New Mexico School of Medicine, Center for Disaster Medicine, Albuquerque, NM

Clifford M. ReesThe surge of recent publicity concerning Avian Influenza and the possibility of an outbreak of the next pandemic influenza provides impetus for health lawyers to review the lessons learned from the public health legal measures used to respond to the Spanish Flu of 1918-1919. Not since the Asian Flu of 1957-1958, which killed approximately 70,000 Americans, and the Hong Kong Flu, which killed approximately 34,000 Americans during the winter of 1968-1969, has the American legal system needed to confront the issue of the use of public health legal measures to respond to a wide-spread infectious disease. New Mexico’s response to the Spanish Flu pandemic highlighted both the successes and failures of the public health laws then in place to combat the disease.

The US Constitution makes no specific reference to public health. Historically, the “police powers” of the States to protect public health and safety have been based on the U.S. Constitution’s 10th Amendment reservation of powers not specifically delegated to the federal government. 1 Chief Justice John Marshall first used the term “police power” in an 1824 U.S. Supreme Court decision, stating that the police powers of the states “form a portion of that immense mass of legislation which embraces everything within the territory of a state, not surrendered in the general government: all of which can be advantageously exercised by the States themselves. Inspection laws, quarantine laws, and health laws of every description… are component parts of this mass.” 2

As World War I was ending in Europe, the highly lethal Spanish Flu swept the globe, killing an estimated twenty to forty million people world-wide, more than the combined deaths of all of the great plagues of history. In the United States, an estimated 600,000 – 750,000 Americans died, more than were killed during all the 20th Century American Wars combined. In New Mexico, which entered the Union as the 47th State on January 6, 1912, an estimated 1,055 3 to 5,000 people died out of an estimated 50,000 cases 4 in a total state population of approximately 360,000 people.

New Mexico was uniquely situated in 1918 as the only state in the nation without a State-level Department of Health. This lack would prove to be a serious deficiency when the Spanish Flu struck. Historically, the Legislative Assembly of the Territory of New Mexico authorized County Commissioners of the various counties in 1889 to appoint local health officers for a period of two years. The appointed health officers could organize themselves into the “board of health for the Territory of New Mexico” at their discretion. 5

Health officers were empowered to “investigate all epidemic and contagious diseases . . . and to take such measures as in their judgment are expedient and prudent to prevent the spread of such diseases, and in the case of contagious diseases to isolate them in their homes and designate their places of residence with appropriate flags or signals so that the general public may be notified that such diseases exist…” 6 Funding for public health enforcement was minimal. Two hundred dollars was appropriated to the Territorial Medical Board for “vaccine virus” but the law further provided that health officers “shall receive no compensation for services rendered.” 7

An outbreak of smallpox at the beginning of the 20th Century lead to refinement of the organization of public health in New Mexico. A 1901 Territorial law designated the county commissioners of each county as the Board of Health for their respective counties. 8 A County Board of Health was authorized to make “effectual provisions, in the manner which they shall judge best for the safety of the inhabitants, by removing such sick or infected person to a separate house, and providing for the keeping of him there until danger of contagion is past: Provided, however that the expense of the carrying out of the provisions of this section shall be borne by said infected person.” 9 Quarantine was also authorized as a tool of the County Board of Health to prevent the spread of infection, including the use of public notice to travelers of “infected places.” 10 An additional 1901 law created the New Mexico Board of Health appointed by the Governor for two-year terms. 11 Its main duty was to regulate the practice of medicine in the State.

When Boston’s smallpox epidemic (1901-1903) spread to the neighboring town of Cambridge, the local Board of Health in February, 1902, relying upon an 1894 state law that allowed municipalities to order compulsory vaccination of its residents during disease outbreaks 12 , ordered its residents who had not received the smallpox vaccine since March, 1897 to be vaccinated. Reverend Henning Jacobson, the minister of the Swedish Evangelical Lutheran Church in Cambridge, had been vaccinated as a child and experienced a severe adverse reaction to the vaccine. He refused to be vaccinated and upon conviction at trial, was fined $5. The Massachusetts Supreme Judicial Court upheld the conviction 13 and Jacobson appealed to the US Supreme Court. In a 7-2 opinion, the Court also upheld Jacobson’s conviction. 14

The Jacobson opinion, still considered binding precedent one hundred years after its issuance, rejected the argument that compulsory vaccination was hostile to Jacobson’s alleged constitutional liberty interest to be free of interference by the government in his body and health. It instead upheld the concept of a social compact between the members of society where individual liberties may need to give way for the greater good of society as a whole. Jacobson followed a line of cases in which courts typically upheld the use of the state’s police powers unless those powers were exercised in an arbitrary or discriminatory fashion. 15

Spanish Flu was slow to arrive in New Mexico, possibly first appearing in Carlsbad and the southeastern part of the state, transmitted by members of an out-of-town circus who performed during the first week of October, 1918. 16 Perhaps the situation in Santa Fe is illustrative of the way local health powers were used (or not used) to confront the epidemic. Santa Fe, the State Capital, reported its first cases on October 7, 1918 and the Superintendent of the New Mexico State Penitentiary in Santa Fe announced no visitors would be allowed to enter the prison.

On October 9, 1918, appeals were made to Santa Fe Mayor E.P. Davies, chairman of the city health board, to close the schools, theaters and churches, following the actions of other cities throughout New Mexico and the country. Mayor Davies, describing himself “in the grip of a severe cold”, did not deem it necessary to close the schools at that time despite the urgings of local physicians. 17

On October 11, 1918, the first death in Santa Fe was reported. The victim, Mrs. C.O. Harrison, was the wife of a “well-known” dentist. 18 It was not until October 13, 1918 that the city health board ordered the closing of all public places such as schools, churches, theaters and dance halls, effective October 14, 1918. 19 By October 21, 1918, the epidemic reportedly “passed crest and subsided” in Santa Fe. 20

At the state level, New Mexico Governor W.E. Lindsay waited until October 17, 1918 to issue a “sweeping” proclamation, effective immediately, closing schools, theaters, churches and courts, and prohibiting the holding of public meetings owing to the flu epidemic. 21 Lindsay, hampered by the lack of a State Health Department, had no state health mechanism to either enforce his order or gather state-wide data on the morbidity and mortality caused by the epidemic.

In the aftermath of the Spanish Flu pandemic in New Mexico, the State Legislature passed House Bill 118 creating the first state level Department of Health effective upon signature of newly elected Governor Octaviano A. Larrazolo on March 15, 1919. 22 The new Department’s powers included the ability to “investigate, control and abate the causes of diseases, especially epidemics, sources of mortality… and other conditions upon the public health… to establish, maintain and enforce quarantine; to close theatres, schools and other public places and to forbid gatherings when necessary for the protection of the public health…” 23 Almost the exact same language is found today in the current New Mexico Public Health Act which governs the activities of the modern New Mexico Department of Health. 24

What contemporary lessons can be learned from the public health legal measures used to respond to the Spanish Flu epidemic in New Mexico? Lack of funding and lack of enforcement authority hampered the public health response at the local and state levels. Public officials lacked professional public health staff to advise them on appropriate and timely public health measures as the death toll rose in the Fall of 1918.

Closure of public buildings and forbidding public gatherings were the main tool used to attempt to limit the spread of the virus. Health officials posted quarantine notices on the homes of persons we would today describe as being “sheltered in place.” Court-imposed involuntary quarantine and isolation of individuals were not part of the public health legal arsenal, and the concept of due process before an individual’s liberty interest is infringed awaited the development of civil liberties jurisprudence later in the 20th Century. 25 Some New Mexico public health authorities today question whether quarantine and isolation will limit the spread of an airborne virus transmitted by seemingly healthy but infected individuals.

Finally, a review of the New Mexico public health laws in place during the Spanish Flu pandemic in 1918-1919 serves as a reminder of the critical importance of public health officials working closely with its legal counsel and elected officials to update both non-emergency and emergency public health laws as needed. The federal Centers for Disease Control and Prevention’s (CDC) Public Health Law Program and the Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities have been leaders in offering Model Acts and technical assistance to States engaged in the on-going process of public health law reform before the next pandemic strikes. 26

1 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” U.S. Constitution, Amendment 10. The source of federal public health police powers is found in Article I, Section 8, the Tax and Spend Clause and the Commerce Clause of the U.S. Constitution.
2 Gibbons v. Ogden, 22 U.S. 1, at 87 (1824).
3 Spidle, Jake W. Doctors of Medicine in New Mexico: A History of Health and Medical Practice, 1886-1986. Albuquerque: University of New Mexico Press (1986), 236.
4 Greenfield, Myrtle. A History of Public Health in New Mexico. Albuquerque: University of New Mexico Press (1962), 16.
5 New Mexico Territorial Laws of 1889, Chapter 79, Sections 1 and 2.
6 Ibid; Section 3.
7 Ibid; Sections 6 and 7.
8 New Mexico Territorial Laws of 1901, Chapter 17, Section 1.
9 Ibid; Section 11.
10 Ibid; Section 16.
11 New Mexico Territorial Laws of 1901, Chapter 18, Section 1.
12 Revised Law of Massachusetts, Chapter 75, Section 137.
13 Commonwealth v. Jacobson, 183 Mass. 242, 66 N.E. 719 (1903).
14 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
15 See generally, Holmes v. Jennison, 39 U.S 540 (1840); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Jew Ho v. Williamson, et al., 103 F. 1024 (N.D. Cal. 1900); Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380 (1902).
16 Melzer, Richard, “A Dark and Terrible Moment: The Spanish Flu Epidemic of 1918 in New Mexico”. New Mexico Historical Review, 57:3 (1982): 216.
17 Ibid; October 9, 1918, p. 3.
18 Ibid; October 11, 1918, p.3.
19 Ibid; October 14, 1918, p. 5.
20 Ibid; October 21, 1918, p. 5.
21 Ibid; October 18, 1918, p. 1.
22 New Mexico Laws of 1919, Chapter 85.
23 Ibid; Section 10.
24 Section 24-1-3, New Mexico Statutes Annotated 1978.
25 See, for example, Addington v. Texas, 441 U.S. 418 (1979). Clear and convincing evidence is the burden of proof required by a State in a civil proceeding to involuntarily commit an individual to a state mental hospital.
26 CDC Public Health Law Program < www2a.cdc.gov/phlp>; Center for Law and the Public’s Health www.publichealthlaw.net; Model State Public Health Act (which includes the Model State Emergency Health Powers Act) www.turningpointprogram.org.; Model State Public Health Privacy Act www.critpath.org/msphpa/privacy.htm.