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April 14, 2015 Articles

The Constitutional Framework for Public Health Responses to Disease Outbreaks

The proper role of the government in responding to public health threats has been much debated in recent months.

By Christa D. Wittenberg

With the recent Ebola scare and uptick in measles cases in the United States, the proper role of the government in responding to public health threats has been much debated in recent months. The measures and policies that government officials implement in response to contagious diseases must be consistent with the substantive due process protections dictated by the U.S. Constitution. This article gives a brief primer on the applicable precedent and constitutional principles governing public health responses to outbreaks of infectious diseases.

Much of the case law on the constitutionality of public health regulations, particularly relating to mandatory vaccination and quarantine, is over 50 years old. This largely is a result of the decrease in widespread pandemics in recent decades. Accordingly, the precedential value of this case law is questionable, particularly when considering substantive due process developments in the past 50 years. However, these cases establish a lasting principle of strong deference to state actions, as well as some important limiting factors.

The widely recognized leading precedent on states’ powers to respond to public health crises is Jacobson v. Massachusetts, 197 U.S. 11 (1905). In that case, an individual challenged a local board of health order requiring residents to be vaccinated against smallpox, or face a $5 fine. The Court held this regulation constitutionally valid, strongly endorsing the states’ power to regulate and protect the public health. But the Court also suggests that this is not an absolute power and must be consistent with constitutional principles. Id. at 24–25. Although not describing any clear framework for analyzing public health regulations, the Court recognized the competing interests of public welfare and individual freedoms, and it seemed to suggest that some factors that may assist in weighing those interests are the necessity of the regulation and its relation to public health. Id. at 27–29, 31.

Other cases, particularly those concerning quarantine, reveal similar deference to state authority, though with some suggested limits to such restrictive actions. In one case, a court found the isolation of a woman with mildly contagious and non-dangerous leprosy to be generally acceptable, but the regulation had to be “reasonably necessary” and “reasonably appropriate to the end in view,” and the conditions of confinement had to be adequate under the circumstances. Kirk v. Wyman, 65 S.E. 387, 389–91 (S.C. 1909).

In another case, a court recognized the importance of scientific evidence and stated that regulations could not be “arbitrary, oppressive, and unreasonable,” but where those minimal standards were met, a typhoid carrier could be quarantined indefinitely. Illinois ex rel. Barmore v. Robertson, 134 N.E. 815 (Ill. 1922). Tuberculosis patients could be confined until cured, but at least one court required sufficient evidence of a diagnosis. Arkansas v. Snow, 324 S.W.2d 532, 534 (Ark. 1959).

Although the analysis of public health regulations such as mandated vaccination and quarantine may differ when applying modern substantive due process jurisprudence, many of the relevant considerations likely would remain the same. Substantive due process bars “‘certain government actions regardless of the fairness of the procedures used to implement them.’” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels v. Williams, 474 U.S. 327 (1986)).

The government’s restriction of liberty must be reasonable and sufficiently tailored to the purpose of the restriction, weighing the individual’s liberty interests against the government’s interests. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990). Courts first determine what level of scrutiny to apply to the government action, either strict scrutiny or a rational basis test. Where there is a significant burden on a fundamental liberty interest, the higher standards of the strict scrutiny analysis apply. See Griswold v. Connecticut, 381 U.S. 479, 503–4 (1965) (White, J., concurring in the judgment). Strict scrutiny requires that a law be narrowly tailored to compelling government interests, Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011), while the rational basis test requires only a reasonable relation between the government action and the purpose, Jackson v. Indiana, 406 U.S. 715, 738 (1972).

Applying a substantive due process analysis, courts likely would find that strong personal interests affected by health regulations, including bodily integrity and personal liberty, rise to the level of fundamental rights, triggering strict scrutiny. Courts also likely would find that a state’s interest in protecting the health of its citizens is a compelling government interest, particularly given the long history of cases emphasizing the power of states to regulate public health and the importance of this role. Thus, the primary question in most cases would be whether a given public health measure is sufficiently narrowly tailored to the interest of preventing the spread of disease.

The factors recognized in the cases discussed above—whether a regulation is necessary, reasonable, related to the goal, supported by science, and adequate in providing for the individuals’ well-being—likely would be relevant when determining whether a public health measure is tailored narrowly enough. This analysis likely would be fact-specific and may depend heavily on the nature of the disease, the treatment options, and the scope of the regulation. What is reasonable to combat the Ebola virus may not be the same as what is reasonable to combat measles.

Under these governing principles, state officials have the authority to regulate public health matters, even with mandated vaccinations or quarantine, when appropriate and necessary. Yet, courts likely will not simply rubber-stamp these types of public health decisions. The choices public officials make must be consistent with scientific evidence, adequately provide for the well-being of the affected individuals, and be reasonably necessary to prevent the spread of disease. With these principles in mind, officials can make sound decisions even in the face of widespread fears when contagious diseases threaten the public.

Keywords: litigation, health law, infectious disease, quarantine, Ebola, measles, substantive due process, public health, healthcare

Christa D. Wittenberg is an associate at O'Neil, Cannon, Hollman, DeJong & Laing S.C. in Milwaukee, Wisconsin, and a former clerk to the Honorable Joe B. McDade of the U.S. District Court for the Central District of Illinois.

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