Professor Khan
Public Health
Spring 2011
Outline
v Public Health and Constitutional Principles
Ø Theme: State police power v. individual rights protected by Constitution—Court is required to balance the competing interests:
· Courts generally defer to legislature where state or federal law is directed to eliminating risk to 3rd party or public
¨ Jacobsen: Court defers to judgment of local and state legislative bodies in balancing public and individual interests
Ø Some exceptions though:
§ Lochner: When claim based on religious beliefs, courts more closely balance competing interests
§ Court also more reluctant to defer to legislature where government’s claimed interest has to do with protecting individual from own behavior, and less to do with protecting others
Ø 20th Century Foundation Cases
§ Jacobson v. Massachusetts
· Facts: Massachusetts has law which states that everyone over 21 must be vaccinated or face fine, if Board of Health decides so. Board of Health later requires smallpox vaccine pursuant to law to protect “public health and public safety.”
· Issue: Does State have power to enact such a regulation?
· Rule: “[A]uthority of State to enact statute is…police power,” and court will defer to legislature in matters of regulating public health and public safety
· Rationale:
¨ Ct explains that State can employ police power so long as regulation is…
Ø Exceptions:
§ 1) substantially related to end (protect public health and safety)
§ 2) reasonable, not arbitrary, not oppressive
§ 3) does not contravene the U.S. Constitution, or infringe on any right therein
§ 4) if “it be apparent or can be shown with reasonable certainty that [person] is not fit subject for vaccination or that vaccination, by reason of condition, would seriously impair health or probably cause death.”
§ 5) See note 6 below
¨ P argues that forced vaccination is unreasonable, arbitrary, oppressive, and an assault (also that this violates due process clause in 14th Amendment). Court rejects argument though stating that “liberty [in Constitution] does not import absolute right in each person to be wholly freed from restraint”—point is that individuals must sometimes give up rights for collective good, including those that are “essential to the safety, health, peace, good order and morals of the community.”
¨ Ct therefore defers to legislature (and consequently limits role of courts) in decision to require vaccination for good of community, and it seems more generally in matters of public health and safety
Ø Vaccination is accepted form of controlling smallpox throughout world and “[court] is not prepared to hold that minority in any place where smallpox is prevalent, [that also enjoys] the general protection of organized local government, may thus defy will of authorities, acting in good faith for all, under legislative sanction of state.” (Ct suggests that if one person did not need to vaccinate, then no one would.)
· Note 2: Notice the “vertical” delegation in place in which Massachusetts legislature creates general law and leaves application to municipal health boards. This delegation is found through public health law. Sometimes legislature will also delegate power “horizontally” to executive branch.
· Note 4: Jacobson recognizes that freedom from state-imposed medical treatment could be constitutionally protected 14th Amendment “liberty.”
· Note 5: What is state’s interest in vaccination? (1) Protecting people against consequences of own failure to be vaccinated (2) Protecting others (3) Protecting interests of State or “collective” people
· Note 6: Jacobson recognizes that there are some constitutional limitations on state legislative power: (1) Law cannot be irrational—people must rationally believe that means could achieve end (2) Law cannot violate constitutional right (3) If vaccination could lead to injury or death of person (4) Law must be applied in response to actual danger—need finding of “necessity” (5) State law may not be in conflict with federal law under Supremacy Clause of Constitution
§ Lochner v. NY
· Facts: P allows baker to work more than 60 hours in violation of NY law (freedom to K is liberty interest under 14th Amendment of Constitution).
· Issue: Is regulation of working hours within police power of State?
· Rule: State police power is limited by constitutional rights, when regulation is arbitrary and not related to public health.
· Rationale: Ct recognizes that despite liberty of freedom to K, State still maintains power to protect “safety, health, morals, and general welfare of public.” “The State, therefore, has power to prevent the individual from making certain kinds of Ks, and in regard to them the Federal Constitution offers no protection.”
¨ Thus, court lays out competing interests—police power of State to regulate working conditions v. individual liberty interest of freedom to K
¨ Court then cites other cases in which State police powers were recognized in limiting working hours—however, in those case, the regulation was confined to the specific occupation (mining) and there was an exception clause in cases of emergency. (Here, neither occurs). Court also distinguishes present case from forced vaccination in Jacobsen.
¨ Still, if police power conflicts with Federal Constitution, question arises, “Is [regulation] fair, reasonable and appropriate exercise of police power by State, or is it unreasonable, unnecessary and arbitrary interference with right of individual to his personal liberty?”
· Holding: There is no reasonable ground for interfering with liberty of person or right of free contract here by determining hours of labor of a baker. The law here is not necessary
ordinance.”
¨ In using police power, state though cannot deprive citizens of property without due process of law (Constitutional limit). Ct again applies rational basis because ownership of ferrets is not a fundamental right.
¨ State’s interest here is in protecting public safety—ferrets have vicious tendencies, especially against young children and babies; also want to prevent spread of rabies (especially since public is unknowledgeable on behavioral symptoms in case of ferrets); also fear spread of feral ferrets
§ Note 1: Trend is to apply rational basis (Jacobson) to motorcycle helmet laws and to defer to legislature.
· Courts have disagreed though on rational for deference with some arguing that helmet requirements should be characterized as protecting safety of public (meaning third parties), or the motorcyclist himself from the risks of danger. The former generally receives much more deference with regulations of the latter being seen as too paternalistic
§ Note 3: Mandatory seat belt laws have also been upheld by courts, and generally on the basis of protecting the public, not the individuals themselves
· Still in State v. Hershberger, Minnesota court did not defer and invalidated law for infringing on freedom of religion under State Constitution—law required certain warning signals on vehicles when traveling on public roads and Amish refused to put them on buggies
§ Note 4: Public health laws will receive rational basis under EPC analysis, unless they target suspect classification or burden a fundamental right
§ Note 5: Fluoridation of water is illustrative of breadth of government power in regulating public health matters—courts have generally upheld constitutionality of these regulations. State interest is in preventing dental caries, which are not really health concerns. This is seen largely as paternalistic, and not as a protection of 3rd parties.
§ Note 6: Another issue in the legitimacy of public health programs is whether they have been authorized by state, or in some cases, city or county legislative bodies—illustrates issue of delegation of power
· Spokane County Health Dist. v. Brockett: In Washington, state legislature has delegated power to local health departments statutorily, but local departments also have power derived from provisions in the State Constitution
