American Journal of Law & Medicine

Law and Politics, an Emerging Epidemic: A Call for Evidence-Based Public Health Law

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be placed on the hysteria that accompanies emergencies. Indeed, these examples merely illustrate an unfortunate array of examples where empirical evidence is ignored in the hopes of quelling paranoia. These policy approaches are not only constitutionally questionable, they generate their own risk to public health. The ability of the law to jeopardize public health approaches to infectious disease control can, and should, be limited through a renewed emphasis on science as the foundation of public health, coordination through all levels and branches of government, and through a serious commitment by the judiciary to provide oversight. Infectious disease creates public anxiety, but this cannot justify unwarranted dogmatic approaches as a response. If we as a society hope to ensure efficient, constitutional control over the spread of disease, it is imperative that science take its rightful place at the forefront of governmental decision-making and judicial review. Otherwise, the law becomes its own public health threat.

I. INTRODUCTION
II. SCIENCE AND THE FOUNDATIONS OF PUBLIC HEALTH LAW
III. FEAR AND POLITICS: HOW THE LAW BECOMES A PUBLIC HEALTH
  THREAT
    A. EBOLA AND PUBLIC HEALTH "EMERGENCIES"
    B. REMOVING THE EMERGENCY EXCUSE
       1. HIV CRIMINALIZATION
       2. CHILDHOOD VACCINATIONS
IV. PUTTING THE PUBLIC HEALTH BACK IN PUBLIC HEALTH LAW
    A. RENEWED FOCUS ON HEALTH
    B. COORDINATION OVER FEDERALISM
    C. SCIENCE AS A CONSTITUTIONAL REQUIREMENT AND THE ROLE OF THE
       JUDICIARY
V. CONCLUSION

I. INTRODUCTION

In On Liberty, John Stuart Mill warned, "[t]he preventative function of government ... is far more liable to be abused, to the prejudice of liberty, than the punitory function ..." (1) This has indeed played out on numerous occasions throughout this country's history, especially when driven by the paranoia and misinformation that tends to accompany the potential spread of infectious disease. (2) "An epidemic of fear has accompanied the spread of the disease and with it, public attention has turned to quarantine, one of the oldest tools of public health." (3) Wendy Parmet wrote this in 1985 in reference to the AIDS epidemic and the call to quarantine infected individuals; nevertheless, it is equally applicable for the 2014 Ebola "outbreak" in the United States where fear spread almost uncontrollably. (4)

Mainstream media outlets ran stories with attention grabbing headlines, such as Ebola Cases Could Reach 1.4 Million Within Four Months, C.D.C. Estimates. (5) What likely raised more concern were the reports about the possibility, or even likelihood, (6) that the virus would mutate and become airborne. (7) With the pervasiveness of these news stories during the Ebola epidemic, it is no surprise that the United States public began to panic, with two-thirds of Americans worried about a widespread epidemic breaking out in the states, even though that epidemic was almost entirely contained to West Africa.8 After all, "[exaggerated risks ... produce extreme responses." (9)

That a community can be plagued by such hysteria during an infectious disease scare is not necessarily unexpected. (10) but when fear is almost completely unfounded, hysteria generates its own potential harm. Ultimately, the Ebola "emergency" in the United States resulted in four confirmed cases and one death, (11) which is nothing to overlook, but not close to the potential airborne outbreak that many feared. Yet, the alarm and politicization of the fear turned the law into a new threat to public health.

In the aftermath of the Ebola scare, there was a failure to assess the harm caused by those in leadership positions whose desire to appease the fearful masses lead them to make decisions and wield the law in a manner that may have jeopardized disease control efforts. (12) By disregarding expertise and empirical evidence, too many public officials made uninformed decisions with indifference to the impact those decisions might have on the ability to contain the disease. (13) Moreover, both the lack of informed decision-making and the subjugation of civil liberties that ran counter to effective public health science raise serious concerns of constitutionality.

The story of Kaci Hickox, a nurse who worked with Doctors Without Borders to fight Ebola in Sierra Leone, is an example of the consequences that can result from dogmatic approaches to infectious disease control. (14) On October 24, 2014. Ms. Hickox landed at Newark Liberty International Airport, (15) the same day that the governors of New York and New Jersey announced mandatory quarantines for anyone who had contact with an individuals infected with Ebola. (16) Using a forehead scanner, officials found that Ms. Hickox had a recorded temperature of 101 degrees. (17) Given that she had an initial reading of 98 degrees, Ms. Hickox stated that the slightly elevated temperature could have been caused by being flushed, frustrated, and stressed from being in custody for four hours with little food, water, or information about why she was being detained. (18) After working for weeks to treat Ebola patients, and waiting for six hours in an airport, (19) Ms. Hickox was then taken to a tent outside of University Hospital in Newark, where she was tested again with an oral thermometer, which is more accurate. (20) Despite normal readings, negative blood tests, and no sign of symptoms, Ms. Hickox was held in the tent for eighty hours before being escorted back to her home in Maine amidst the threat of a lawsuit against the State of New Jersey. (21)

This story is just a microcosm of the manner in which politicization of public health can impact individuals and efforts to fight infectious disease. Ms. Hickox had her individual rights unnecessarily constrained, but this type of treatment of a healthcare worker could have downstream effects on the ability to convince other healthcare workers to join the frontline battle of containment and treatment. Though quarantining asymptomatic individuals is not the only manner in which misinformation, hysteria, and politics can play a large role in public health decision-making, it goes to the heart of the challenge of public health law: "the balancing of individual and societal interests." (22) Improper justification for decisions raises both public health and constitutional concerns.

Although the law establishes substantial powers to protect the public's health, it is worth considering whether the use of these powers does in fact lead to better health outcomes. The use of public health authority and coercive measures is neither necessary nor sufficient to ensure protection of the public's health, and use of this power cannot be justified unless it has a reasonable, scientifically based ability to protect the general welfare. While the law is often discussed as a way to improve health, it is important to note that the law can also have adverse health impacts. If used improperly, the use of public health powers could enable the spread of disease and, consequently, become a danger to the population's wellbeing. (23)

Part I of this article examines the foundation of public health law, which uses scientific and data-driven decision-making to justify infringement upon individual liberties. While there can be no doubt that the government has the authority, and arguably the obligation, to infringe upon individual interests for the protection of the general welfare, it is just as certain that this power in not unbounded. The individual can only be asked to sacrifice for the common good when that sacrifice is likely to in fact protect the public's health, and even then, only to the extent necessary to achieve that goal.

Part II illustrates that the scientific foundations of public health law's power are often overlooked and ignored, thereby generating an independent public health threat. While this happens in emergency situations such as an Ebola outbreak, the emergence of legal threats cannot be blamed merely on the irrationality that stems from a sudden crisis. Indeed, even policies aimed at minimizing the public health impact of HIV and childhood infectious diseases succumb to politics rather than reasoning based in the law and public health.

Part III makes a plea for a reemphasis of the connection between science, empirical evidence, and public health law. Regardless of the level or branch of government discussed, science too often takes a backseat to the momentum of politics and fear. To truly fight disease outbreaks, the focus must be on health--meaning that evidence-based law must be at the forefront of public health decision-making. Ad hoc, unjustifiable responses have the potential to diminish trust, drive people from the healthcare system or to conceal their potential infections, and discourage or punish essential healthcare workers. Keeping in mind the realities of limited resources, adopted policies must be likely to generate better health, which may require more stringent judicial oversight. Evidence-based law is necessary because misinformed enforcement mechanisms tend to exacerbate negative health outcomes, as well as violate constitutional standards.

II. SCIENCE AND THE FOUNDATIONS OF PUBLIC HEALTH LAW

Public health law has been defined as:

   [T]he study of the legal powers and duties of the state, in
   collaboration with its partners ... to ensure the conditions for
   people to be healthy ... and of the limitations on the power of
   the state to constrain for the common good the autonomy, privacy,
   liberty, proprietary, and other legally protected interests ...
   (24)

In other words, public health law means determining the appropriate balance between what the government is obligated and authorized to do to protect the public's health, and what it cannot do in terms of infringing on individual rights. (25) Implicit in this definition is that the government must take positive action to ensure the public's health, and in terms of infectious diseases, even those who argue for a limited scope of governmental public health authority find that preventing the spread of disease falls within the State's obligations. (26) The government takes public health action through the police power, which is "[t]he inherent authority of the state ... to enact laws and promulgate regulations to protect, preserve, and promote the health, safety, morals, and general welfare of the people." (27)

In terms of infectious disease response, the balance between both the State's obligations and its limitations is key. Individuals can act as carriers and spread the disease; yet, a government may do more harm than good when it unnecessarily oversteps its bounds by restricting individual liberty. If people are going to be asked to sacrifice for the greater good, it is important that they only be asked to accept a limitation on their liberty when absolutely necessary, and in the least restrictive means required to achieve that end. Therefore, it is vital that these decisions be based on sound scientific evidence in order to maintain public trust, even among individuals who have their own rights constrained.

In the seminal public health law case Jacobson v. Massachusetts, the Supreme Court made it clear that "the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint." (28) The Court held as "settled principle [that] the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." (29) With recognized authority to limit individual liberty for the betterment of public health, the question becomes what, if anything, inhibits the ability of the government to use this power.

Subsequent cases have illustrated that the individual right in question is not a limitation because even the most fundamental constitutionally protected rights can be overridden by a duty to protect the general welfare. In Prince v. Massachusetts, the Supreme Court made clear that "[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." (30) Indeed, the Court has found broad discretion within the police powers. (31) Despite the fact that this authority is to be used to protect the public, a power so vast must be limited in order to limit the potential for abuse. (32) After all, "even the police power is subordinate to the Constitution." (33)

Within the Jacobson decision there is an inherent tension between "social-compact theory" and a "theory of limited government." (34) Yet, the opinion provides guidelines for how to balance these two competing theories. (35) First, a risk of harm or public health threat must be identified to ensure there is a necessity for government action and to prevent the government from acting arbitrarily. (36) Next, there must be an evaluation of whether the approach taken by the state can reasonably be expected to prevent or mitigate the threat. (37) Finally, there must be a determination of whether the benefits provided by the public health measure justify the burdens it imposes on civil liberties. (38)

Inherent in each of these steps is the necessary role that science and data must play. An accurate assessment on any of the three prongs requires some expertise or [right arrow]empirical analysis. While scientific data may not necessarily be dispositive of any of the three prongs, it undoubtedly should help to clarify each to some degree. More importantly, the use of data adds to the objectivity and transparency of evaluating public health measures. The police power grants extremely broad discretion to infringe upon our most fundamental rights. (39) As such, the importance of scientific data in determining the legality of public health measures cannot be overstated.

Another aspect to this evaluation that is often overlooked, but can be construed as an additional protective layer of individual rights, is the burden of proof. By beginning with the threat and the means taken to mitigate that threat, the initial burden of proof inevitably lies with the State. (40) In Jacobson, the Court stated that smallpox, certainly a serious disease, was prevalent and that the threat was increasing. (41) The Court found that mandatory vaccination was the "method[] most usually employed to eradicate th[e] disease," (42) and that the effectiveness of vaccines in preventing the spread of disease was accepted by "most members of the medical profession." (43) Therefore, the Court maintained that the methods taken to reduce the harm of smallpox had a "real or substantial relation to the protection of the public health." (44)

Once the Court found that vaccinations were shown to prevent the spread of smallpox without generally increasing harms, the burden shifted to the individual challenging the regulation to prove that it was invalid as applied to them. (45) Importantly, scientific evidence again takes a primary role. The Jacobson Court was critical of the fact that the plaintiff offered little more than his opinion about his lack of faith in vaccinations. (46) The Court conceded that it is unconstitutional to subject an individual to vaccination whose body or health is in a condition that would render the treatment "cruel and inhuman[e]." (47) Yet, in this particular case the plaintiff had not met his burden of proof, and all evidence suggested "that the vaccine matter to be used in his case was such as any medical practitioner of good standing would regard as proper to be used." (48)

By placing the burden of proof on the State to produce evidence of a public health threat and to demonstrate a response that can mitigate that threat with benefits that generally outweigh its burdens, the judiciary increases the objectivity, transparency, and accountability of public health measures. While the explicit data analysis in Jacobson is a bit thin, the opinion must be understood in the context of its time. In 1905, infectious diseases were the leading cause of death, the federal government had little involvement in health matters, the Food and Drug Administration ("FDA") was not yet created, and most vaccines were fifty years away. …

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