Public Health Law: I. The Law of Public Health
I. THE LAW OF PUBLIC HEALTH
Public health law is used to regulate activities and facilities to protect human health and establish institutions and programs that advance health and well-being. Its development has long been informed by the shared political and philosophical beliefs that provide a reason for government generally: to advance the common good and protect people's health, safety, and welfare. Public health law has changed over the years to reflect technological, scientific, and medical advances and respond to new threats and hazards. Societal and legal developments continue to create new ethical problems and challenges.
In the eighteenth and nineteenth centuries public health was largely a matter of protecting the public against communicable diseases and preventing epidemics. Concerns about food and waste sanitation, health and safety in the workplace, and other issues arose late in the nineteenth century and the early twentieth century. As a result of recurring epidemics of cholera, yellow fever, smallpox, typhus, typhoid, dysentery, diphtheria, and scarlet fever, states and municipalities created boards of health to protect people against disease (Rosen).
Because little was known about the causes of disease, quarantine—the separation of persons who could infect others—became, in the absence of immunization and other preventive measures, the primary mode of control. As the understanding of the bacterial cause and spread of disease grew, other preventive measures followed, including the control of food handlers to prevent typhoid carriers from working in food establishments, the prevention of persons with tuberculosis from working as teachers or nursemaids, and the prohibition of industrial work in the home to prevent the dissemination of tuberculosis through homemade clothing. Other regulations forbade spitting in public places and carrying soiled laundry on public conveyances such as the subway system in New York (Rosen).
The basis for early state and local legislation was the state's police power to protect people's safety, health, and welfare. The police power constitutes the reason for the establishment of state governments: to advance the public good and protect people from one another. This is a broad and inherent power because it is part of the social contract (Bentham, 1969a, 1969b).
The police power was relied on long before public health became a concern. For example, in 1837 the courts relied on police power to support a state law authorizing the construction of a second bridge across the Charles River that interfered with an alleged earlier franchise held by the owners of an old bridge (Proprietors of Charles River Bridge v. Proprietors of Warren Bridge). In 1851 the courts relied on police power to uphold state legislation limiting an owner's use of his property in Boston Harbor because that use would interfere with navigation (Commonwealth v. Alger). In 1876 the police power provided the basis for a state law to regulate grain elevator charges (Munn v. Illinois).
The broad thrust of police power to advance and protect community interests was developed further in early public health cases that upheld state regulation of retail liquor sales over the objection that that regulation interfered with the use of private property (Crowley v. Christiansen). In those early cases the claims of public interest under the police power overcame the assertion of private property interests protected under constitutional due process. Later cases involving the discriminatory regulation of laundries in wood-frame buildings (Yick Wo v. Hopkins) and the establishment of a quarantine district in a way that included and burdened a larger number of Chinese immigrants (Jew Ho v. Williamson) firmly applied the police power to protect public health, safety, and morals while upholding individual interests protected by the Fourteenth Amendment of the U.S. Constitution.
In the twentieth century public health law in the United States increasingly dealt with the resolution of tensions between the exercise of state police power and the protection of personal liberties through the due process clause of the Fourteenth Amendment and other parts of the Bill of Rights. In the landmark case Jacobson v. Massachusetts in 1905 the U.S. Supreme Court upheld the city of Cambridge and the state of Massachusetts in exercising the police power to compel Jacobson to undergo a smallpox vaccination not for his own protection but to prevent him from infecting others if he became infected in a smallpox epidemic. Jacobson argued that the law denied him due process and the equal protection of the law. The Court upheld the state's exercise of the police power by applying a standard of reasonableness that followed the utilitarian principle of the greatest protection for society at the least cost to the individual. Thus, the state's chosen method of control (vaccination) was adopted to achieve the end sought (an end to the epidemic) and was seen by the Court as a reasonable price to be paid by the individual in those circumstances (Bentham, 1969b).
In cases in which the exercise of police power allegedly violated property rights other analytic approaches were applied. In some of those cases reliance on constitutional principles was not articulated because the common law had long dealt with inappropriate uses of private property. For example, it is a well-established legal principle that citizens have a right to enjoin or abate a nuisance: A condition that is unwholesome or filthy and adversely affects neighboring property owners. The ancient principle of sic utere tuo ut alienum non laedas ("use your property so as not to hurt another") often was applied in private disputes and cited in constitutional decisions. States and municipalities began to designate such conditions as abatable nuisances, and public authorities could prohibit or abate them. Some conditions that were considered nuisances were referred to in Commonwealth v. Alger (1851), including warehouses for the storage of gunpowder near habitations or highways, wooden buildings of excessive height in populous neighborhoods and similar structures not covered with incombustible materials, buildings used as hospitals for contagious diseases, the use of buildings to carry on noxious or offensive trades, and the raising of a dam that caused stagnant waters emitting dangerous fumes to spread over meadows near inhabited villages.
A contemporary listing would include garbage dumps, sites for the disposal of hazardous wastes, paint spray plants, and fat-rendering plants. In Mugler v. Kansas (1887) the defendant was enjoined from using his property to operate a brewery, a proscribed use. The equitable rule of sic utere also calls for a balancing of equities, that is, a balancing of the benefit denied to the defendant against the benefit derived by the community in stopping undesirable uses of the property.
Public Health Law and the Eugenics Movement
The father of eugenics was Sir Francis Galton (1822–1911), a cousin of Charles Darwin who self-identified as a philosopher of natural science. One of his works was titled "Genius, an Inquiry into Its Laws and Consequences" (Pickens). Galton's work reflected the worst aspects of nineteenth-Century Enlightenment thought, including the fundamental error that acquired characteristics can be transmitted by heredity. Eugenicists believed that the human race could be improved and social ills eliminated through selective procreation to eliminate defective germplasm from the national genetic germ pool.
Between 1900 and 1970 some 100 statutes based on eugenic theory were adopted by state legislatures to improve the nation through selective mating and to eradicate disease, crime, poverty, and other social ills by preventing the reproduction of socially deviant individuals. In the late nineteenth century and early twentieth century people worried about the future health of a growing and diverse population and held Malthusian fears about the adverse impact of overpopulation. That message was carried in the American Journal of Eugenics, which was published in July 1907 until 1910, and by two other journals, both publications of the American Eugenics Society, namely Eugenics: A Journal of Race Betterment from October 1929 to February 1931 and Eugenical News published from January 1916, continuing publication until December 1953 (Lombardo). The eugenics movement coincided with the development of the twentieth-century interest in broader public health protection, but it contributed to racial divisions and undermined the scientifically sound genetic research of the twentieth century.
The American eugenics movement was championed by the Eugenics Record Office of Cold Spring Harbor, Long Island, which collaborated with other groups that objected to the large numbers of immigrants from central and eastern Europe between 1880 and 1924. It supported the Immigrant Restriction (Johnson-Reed) Act of 1924 (Chase), which restricted immigration by Russian and Polish Jews, Italians, and other central Europeans, who were said to have a greater number of inborn undesirable qualities, including insanity, feeblemindedness, dependency, criminal behavior, deformities, and tuberculosis, than did the older Nordic and Anglo-Saxon stock. The act imposed severe immigration quotas to maintain the national racial and ethnic balance. A misguided effort of the Progressive Era, it applied so-called scientific approaches to manage the ills of society. Endorsing a form of social Darwinism, it extolled the Anglo-Saxon heritage and encouraged prejudice against inferior races and persons of color because the unlimited immigration of those groups would dilute the native stock with defective germplasm. Its "quarantine mentality" sought to separate the healthy from the ill or abnormal (Markel, Kühl).
The work of Charles B. Davenport and the Eugenics Record Office was supported by prominent citizens and some members of Congress who relied on pseudo-scientific charts, tables, and graphs illustrating the genetic inferiority of those immigrants. The organization favored the sterilization of hereditary paupers, criminals, the feebleminded, tuberculars, the shiftless, and ne'er-do-wells (Chase). At the turn of the century states began enacting involuntary sterilization laws to deal with idiots and imbecile children, hereditary criminals, and other genetically defective persons as well as sexual perverts, drug fiends, drunkards, epileptics, and others considered ill or degenerate. By 1931 about thirty states had enacted compulsory sterilization laws that covered mostly the "insane" and "feebleminded" and frequently "epileptics." Those laws were applied in the sentencing process and in institutional treatment and covered recent immigrants and others who were functionally illiterate or did poorly on intelligence tests. Although most of those laws were not enforced in all the states, by January 1935 some 20,000 people in the United States had been sterilized involuntarily, mostly in California. The California law was not repealed until 1979 (Hubbard and Wald). Nineteen states had laws that permitted the sterilization of mentally retarded persons without a clear definition of that category (Reilly).
In 1927 Justice Oliver Wendel Holmes wrote the opinion in Buck v. Bell, a case that has influenced law and genetics for many years. The opinion concluded with the assertion, "Three generations of imbeciles are enough." The case involved a law in Massachusetts that authorized the involuntary sterilization of feebleminded persons in state institutions. Carrie Buck was ordered sterilized because she was the feebleminded daughter of a feebleminded mother and had given birth in the institution to a feebleminded daughter. The sentence was carried out shortly after the decision in 1927. Subsequent investigation seemed to show that none of the three generations of women involved in the case were feebleminded (Gaylord). Never overruled, the decision was discredited by Skinner v. Oklahoma, which invalidated a law that provided for the sterilization of repeat offenders convicted of crimes of "moral turpitude."
The history of the eugenics movement was recalled by opponents of the U.S. Human Genome Project who compared it with the outrages of the Nazi holocaust, which used racist theories to justify compulsory sterilization and the murder of six million persons who were viewed as subhuman (Caplan). Citing Buck v. Bell, American opponents of the Human Genome Project also relied on other instances of involuntary sterilization, such as the cases that arose out of abuses in the U.S. sickle cell anemia program in the 1970s. Another instance of misguided medicine cited in the context of racist eugenics is the so-called Tuskegee Institute Study, which involved the intentional failure for many years to treat African Americans in Macon County, Alabama, who were suffering from syphilis (Duster; King; Hubbard and Wald).
Scholarly writings opposing the Human Genome Project and other genetic research do not assert that those projects attempt to advance eugenic principles but insist that in a racist society genetic investigation will exacerbate existing racial divisions and that even if such projects yield medically useful results, they will be used to benefit the dominant group rather than groups that have been discriminated against. In the course of mapping and sequencing the human genome, correlations will emerge between genetic characteristics and race or ethnicity that will be misused. Those writers also believe that genetic studies overemphasize genetic factors in human development and downplay the importance of environmental influences.
The only beneficial aspect of eugenics was personified by Margaret Sanger. Born in 1879, Sanger became a feminist activist as well as a socialist. After 1911 she pursued her interest in sex education and women's health. Sanger believed that frequent and unwanted pregnancies, sometimes including miscarriages and self-induced abortion, burdened women's lives, personal development, and freedom. Some of her books on female sexuality, social hygiene, and venereal disease were seized by postal authorities as obscene, and her career frequently was interrupted by arrests and imprisonment on obscenity charges. Later, focusing on the development of family-planning and birth control clinics, she argued that prenatal care and the limitation of pregnancies would result in healthier babies as well as healthier and more fulfilled women.
The idea that sex need not lead to conception and that women freed of the burdens of unwanted pregnancies could enjoy sex ran afoul of the 1873 federal Comstock law and state obscenity laws. In 1914 her books on birth control and contraception led to her indictment for violating postal obscenity laws. Sanger later continued her efforts at birth control advocacy by founding the American Birth Control League and connected those efforts with a part of the nativist U.S. eugenics movement that sought birth control for persons with mental or physical genetically transmitted defects, seeking the forced sterilization of mentally incompetent persons. Although Sanger did not advocate positive eugenics or limitations on population growth based on race, ethnicity, or class, her reputation was damaged by the growing development of race-based eugenics.
In 1936 the ruling by the U.S. Court of Appeals in U.S.v. One Package of Japanese Pessaries that physicians were exempted from the ban on the importation of birth control materials supported Sanger's efforts. Though ahead of her time, she never gained public funding for birth control as a public health measure. In 1939 the American Birth Control League and Sanger's Birth Control Clinical Research Bureau became the Birth Control Federation of America, which in 1942 became the Planned Parenthood Federation of America. The words birth control were considered too radical to be included in the name of the organization.
In 1952 Sanger and others founded the International Planned Parenthood Federation (IPPF) to address global overpopulation. She believed that reducing the number of unwanted children would make it easier to allocate economic and social resources. Sanger worked with the American and British medical establishments to develop an effective and inexpensive female contraceptive. That was accomplished in the 1950s when Gregory Pincus developed an effective anovulant, the birth control pill; Sanger had helped secure funding for this effort. Sanger died in 1966, soon after the Supreme Court's 1965 decision in Griswold v. Connecticut, which allowed the use of birth control information by unmarried and married couples.
Although the legislation it spawned remained on the books, by the 1930s and 1940s the eugenics movement no longer fit the economic and political changes in society and in scientific attitudes. The simplistic view that heredity would produce copies of earlier generations and their acquired characteristics unaffected by nurture and environment was abandoned. Moreover, the search for the perfect contraceptive was successful at a time when the pressures that created the eugenics movement had abated. At the beginning of the 1940s birth control research and eugenics in both Britain and in America gave way to the pressing concerns of World War II and the needs of the Third World (Soloway).
Expansion of Public Health Law
With the entry of the federal government into public health in the twentieth century, public health law expanded and there were significant changes in the exercise of governmental powers and the tasks assigned to public health law. The federal government has no plenary police powers (it lacks the power to provide for health, safety, and welfare), yet it plays a major role in the creation and execution of public health policies through the exercise of the powers delegated to it by the states under Article I of the U.S. Constitution. Those powers include the power to regulate interstate and foreign commerce and to tax and spend for the general welfare. The Food, Drug, and Cosmetic Act enacted in 1938 demonstrates the use of the federal commerce power in the regulation of public health. Congress not only regulates trade in and the interstate transport of food, drugs, and cosmetics but also authorizes the U.S. Food and Drug Administration (FDA) to set standards for and monitor the quality of that merchandise. Through the FDA the federal government also regulates the safety and efficacy of drugs and pharmaceuticals with a detailed mechanism of administrative controls, including the power to adopt standards to inspect pharmacies and supervise food and drug regulation. Interstate commerce regulation also includes the control of harmful emissions from automobile engines, showing that interstate commerce controls affecting public health may be designated environmental controls even though their primary purpose is the advancement of public health. To exercise the commerce power the federal government usually acts directly through a federal agency such as the FDA or the U.S. Environmental Protection Agency (EPA).
Taxing and spending power represents a less direct exercise of federal powers. An early example of the use of that power in public health was the 1944 Hill Burton Hospital Construction Program, under which the federal government grants funds to a state or municipality for hospital construction programs and nonprofit community hospitals (Grad, 1990). As a condition of the grant the state or local government must comply with federal regulations, including facility and personnel requirements, and provide free services for indigent persons. Another ongoing grant-in-aid program is the program under Subchapter II of the Federal Water Pollution Control Act Amendments of 1972 for the construction of public waste-treatment works by states and municipalities. This program has helped clean up waterways and develop improved sewers in cities. Grant-in-aid programs have been used widely to support infrastructure developments to advance public health. Under those programs the federal government requires states to pass regulations and carry out construction, enforcement, and compliance activities to meet the conditions of a grant.
Federal public health activities under the commerce power are analogous to state exercise of the police power in that they command and control certain activities. Like exercises of state police power, they must meet the constitutional requirements of due process and equal protection. Their philosophical basis is largely utilitarian, seeking a balance between the public interest and the protection of private entrepreneurial interests in development and property. Federal public health activities under the taxing and spending power may advance similar concerns, but to the extent that they involve the distribution of federal funds, other concerns, such as those relating to fairness in distribution, also play a role. John Rawls argues that if the principle of equal liberty is met, as well as that of equality of opportunity, the difference principle permits inequalities in the distribution of social and economic goods if those inequalities will benefit everyone, especially the least advantaged (Rawls). Distribution formulas for the sharing of federal funds by responding to areas with greater needs satisfy that formulation.
Relationship between State and Federal Public Health Law
The relationship between state and federal public health law is not a simple hierarchical one. Although under Article VI, Section 2, of the U.S. Constitution federal law is the supreme law of the land, in cases of conflict between federal and state law, federal law trumps state law only if Congress has the jurisdiction to pass such a law. In the case of public health law, federal jurisdiction generally is defined by the interstate commerce power. In the past the federal commerce power generally was viewed as broad enough to cover virtually any law Congress decided to pass. However, a series of close decisions by the Supreme Court has limited congressional power to subjects that are clearly related to interstate commerce. The Court has invalidated laws involving gun control and violence against women. Other decisions have addressed the issue of whether the federal exercise of regulatory power was sufficiently related to the area of interstate commerce. This stringent limitation on federal power and correlative limitations on state judicial power were enhanced by decisions interpreting the reach of states' Eleventh Amendment immunity from lawsuits. In another effort to increase state powers the Court has held that although an activity may be federally regulated, Congress lacks the power to subject nonconsenting states to private suits for damages and other relief in state courts. Thus, under the Americans with Disabilities Act the Court held that the Eleventh Amendment limits private actions by state employees for damages under the federal law. The Court also has held that the Constitution does not permit private lawsuits to recover damages from nonconsenting states for the violation of federal rights even when the suits are brought in state courts (Alden v. Maine). Those cases indicate that the subject matter of public health does not change the Court's rules concerning the protection of states' rights.
Major Public Health Approaches
There are two major approaches to the protection of public health. The first and older one uses regulatory enforcement programs that range from epidemiological controls and protection against unwholesome living conditions to the identification and removal of poisons in the environment. Included are protection of the food and water supplies and protection against hazards and poisons in the workplace. Programs to protect the public against hazards from the generation of nuclear energy and efforts to prevent the destruction of the stratospheric ozone layer by the dissemination of hydrofluorocarbons and other destructive gases are included in this area.
Although public health regulation and enforcement have grown enormously, that expansion has been exceeded by the second area of public health protection: public health services. The government provides services to advance the health of the public, including the provision of well-baby clinics, family-planning clinics, community mental health programs, and government-sponsored research institutions that provide special services.
Both regulatory enforcement programs and service programs must meet constitutional requirements. In general, equal protection under the Fourteenth Amendment specifies that the same degree of fairness apply in the provisions of benefits and services as applies in the imposition of obligations and duties. As a result government agencies carefully consider allocation factors in the distribution of services to determine how priorities should be set between public health and other needs and determine the priority of certain health-related needs. Finally, institutions often must determine specific allocations among individuals with different health and other needs (Rawls). Political considerations such as pressure from physicians and other service providers or from consumers also have an effect on the process.
In addition to direct service programs, Medicare and Medicaid, both of which were established in 1965, pay or reimburse medical costs. Medicare is an offshoot of Social Security. Focused on the reimbursement of fees for service, it subsidizes the healthcare costs of Social Security recipients, primarily the disabled and persons age sixty-five and older. Initially paid for by employer and employee contributions, Medicare became an entitlement program because employees had secured contractual rights to social insurance through their contributions. Medicaid is a federal grant-in-aid program financed by federal and state contributions to provide medical care for "medically indigent" persons whose family income level is so low that they cannot pay for their own medical care. Both Medicare and Medicaid are managed federally by the Health Care Financing Administration.
Government involvement is dominant in these programs; because the government reimburses medical providers for services rendered, it is directly involved in regulating the quality of those services. Medicaid may be viewed as a welfare program that takes the place of earlier provision of care for the poor through charitable or public institutions. Medicare, based on contractual entitlements, was created with the expectation that employees would die soon after reaching the retirement age of sixty-five. However, the increasing longevity of the covered population and the substantial increase in the cost of health services have led to persistent political criticism. Such programs are not novel. State financing of healthcare costs began in Germany in the late nineteenth century, and many European nations, including Great Britain, the Netherlands, the Scandinavian countries, and Austria, have continued to provide healthcare even though their gross national products and industrial bases are considerably smaller than those of the United States.
In the United States there is no right to healthcare or to treatment under federal or state law except insofar as specific reimbursement provisions have been provided by law. There is no constitutional entitlement to healthcare. However, a number of writers have suggested an egalitarian right to healthcare, claiming that everyone who has an equal need for healthcare services or resources must have equal access to them. This sometimes has been asserted as a corollary of a general egalitarian welfare right that requires the distribution of resources to assure that everyone's lifetime net welfare is equal (Buchanan; Veatch). This expansion of welfare rights, including the right to healthcare, last failed to become part of American law during the second term of the Clinton adminstration when the universal health insurance proposal by the committee headed by First Lady Hillary Clinton was not adopted. However, in June of 2003, new efforts were underway to include "universal" health insurance as part of the law had not as of 1994 become part of American law. Any such proposal would be rejected by those who hold the so-called libertarian point of view, which regards as inappropriate all social ordering that does not rely on the allocation of goods and services through market processes (Buchanan; Nozick).
It is difficult to formulate a single philosophical basis for federal involvement in the multiplicity of public health programs. Twentieth-century federal public health programs were based on detailed programmatic legislation that not only established new rules of law but also created new governmental structures to manage the new areas of governmental control (Grad, 1985). Those new structures are exemplified by the FDA, the EPA, and agencies that manage social insurance programs such as Medicare and Medicaid. In every instance the agency is given broad rule-making powers that must be exercised in accordance with the general purposes of the statute. In statutes intended to protect society against toxic substances and hazardous waste the general purpose may be "to protect health and the environment."
In regard to such legislative instructions one might refer to the principle sic utere or to the broader principle of preventing harm to others, but that would not be historically or analytically correct because those principles were intended to govern persons in their private relationships or their relationships within a relatively small community. Modern public health programs, in contrast, address broader national or even global problems. Moreover, the emphasis of earlier approaches was generally on preventing harm, whereas modern programmatic legislation often seeks to advance public benefits. The utilitarian rationale of protecting the health interests of the public at the lowest possible cost to the individual seems the most appropriate. The purposes of public health programs are legislatively defined. Legislation is political and therefore majoritarian in its nature, unlike the judicially established bases for protection under common law articulated by judges and intended primarily to resolve individual disputes.
Public Health and AIDS
The emergence of AIDS in the 1980s demonstrated the tension between the protection of individual rights and the enforcement of broadly applicable police-power measures to protect public health. Another significant challenge was the threat of a multidrug-resistant form of tuberculosis in the late 1980s and 1990s. Communicable diseases generally are reportable under health codes, and those reports to a health department are normally protective of the patient's privacy. Special confidentiality protections are particularly applicable to reports of sexually transmitted diseases and, in earlier times, tuberculosis. Special privacy protections originated in the protection of patients against stigma because a report of certain diseases was regarded as a social disgrace. The knowledge that the report of a communicable disease might result in stigmatization and discrimination was undesirable from the point of view of public health because patients were less likely to seek treatment if their confidentiality was breached.
When AIDS emerged in 1981, most other communicable diseases no longer represented major public health problems, and the history of reports to health departments and the possibility of contact investigations to trace potentially exposed persons, particularly in the area of sexually transmitted diseases, had been forgotten. Constitutional protection of privacy as a part of due process had developed earlier in the context of the right of a pregnant woman to choose to terminate her pregnancy. Privacy protections and related protections of personal autonomy are asserted to protect against the disclosure of human immunodeficiency virus (HIV) status even though AIDS is now a reportable disease in all the states.
Because transmission of HIV was associated first with homosexual intercourse and later with intravenous drug use, there were compelling reasons to protect the identity of persons who were HIV-positive. Privacy protections also interfered with giving notice of exposure and risk to persons who had been exposed because that information, unless disclosed voluntarily, inevitably would breach the patient's confidentiality. Patient privacy continued to have broad legal protection, and the tension between the protection of individual privacy and the need for public information in order to protect the public health is a continuing one, even though there is today in 2003 both greater tolerance of what had earlier been considered deviant sexual behavior. Many more persons freely acknowledge their sexual preferences and "come out of the closet." At the same time, the medical and public view of HIV/AIDS has changed in view of the decline in HIV morbidity and mortality during the late 1990s, attributable to combination antiretroviral therapy. This decline appears to have ended, and in 2003 new outbreaks of primary and secondary syphilis among men who have sex with men and increases in newly diagnosed human immunodeficiency virus (HIV) infections among such men and among heterosexuals have been increasing. As a result there are new concerns that HIV incidence may be increasing. Earlier programs focused on prevention efforts targeted at persons at risk for becoming infected with HIV and on programs to reduce sexual and drug using risk behavior. More recent efforts are focused in 2003 on prevention efforts for persons living with HIV. During 1981 to 2001, an estimated 1.3 to 1.4 million persons in the United States were infected with HIV, and 816,149 cases of AIDS and 467,910 deaths were reported to CDC. During the late 1990s, after the introduction of combination antiretroviral therapy, the number of new AIDS cases and deaths among adults and adolescents declined substantially. The annual number of incident AIDS cases and deaths have remained stable since 1998, at approximately 40,000 and 16,000, respectively. The number of children in whom AIDS attributed to perinatal HIV transmission was diagnosed peaked in 1992 at 954 and declined 89 percent to 101 in 2001. (Morbidity and Mortality Weekly Report, 2003).
The Morbidity and Mortality Weekly Report (2003) notes that since early 1990 an estimated 40,000 new HIV infections have occurred annually in the United States and the number of persons living with HIV continues to increase. Of an estimated 850,000 to 950,000 persons living with HIV an estimated 180,000 to 280,000 (25%) are unaware of their serostatus. The report points to new and faster tests for HIV which create a new prospect for expanding testing, identification, and treatment of HIV infections. Thus, testing and more information will be used to reduce the number of HIV infections by working with persons diagnosed with HIV and their partners. There will consequently be increased emphasis on partner notification (Morbidity and Mortality Weekly Report; CDC; HIV/AIDS Surveilance Report, 2001).
It is notable that the new program returns to the earlier methods applied to deal with sexually transmitted diseases (STDs) such as routine screening, identification of new cases, partner notification, and prevention services for those who are infected. The change in approach is a reversal of earlier emphasis on privacy where for sometime a New York physician who diagnosed a patient as HIV positive could, but was not under any legal compulsion, to inform the patient's spouse or other sexual partners.
Because persons who are HIV-positive and have a defective immune system are more likely to contract tuberculosis than are others, the recurrence of tuberculosis in a multidrug-resistant form creates a situation in which the disclosure of a patient's affliction with tuberculosis may be regarded, often erroneously, as an indication of positive HIV status, aggravating the problem of maintaining confidentiality. Privacy is now an aspect of personhood, and protection against the invasion of privacy—in this case the invasion of informational privacy—is constitutionally granted by the Fifth Amendment (Tribe). Ethical protection of privacy is based on privacy as an aspect of personhood that is protectable to the same extent that a person's physical integrity is. Violations of privacy are ethically justifiable only if disclosure serves a greater good. Thus, whether a patient's HIV status should be disclosed to others depends on the need of those persons to know and the uses and benefits that may result from the disclosure (Bayer).
Public Health and Bioterrorism
The use of passenger aircraft as guided missiles to destroy the World Trade Center on September 11, 2001, did not change the task of public health but created an urgent need to plan for disasters. Terrorists target civilian populations, and the means and the impact are likely to be unexpected, deeply hurtful, and unrestrained by humane concerns. Civilian populations in dense urban centers are vulnerable because in those areas disease and terror spread readily.
Bioterrorism involves the use of pathogens—diseasecausing organisms such as bacteria and viral agents—as weapons to attack civilian populations and armies to weaken their health and resistance. Pathogens may be spread by using advanced technology, but simple devices such as giving smallpox-contaminated blankets to Native Americans during the French and Indian Wars of 1763 can serve the same purpose. During World War II and the Cold War period virtually all the major powers worked to develop biological weapons (Evans et al.).
Before September 11, 2001, public health commentators thought that a significant bioterrorist attack was not likely. Because it was impossible to predict the nature and extent of an attack, preparations could be both costly and inadequate. After a simulation by the U.S. Department of Justice at the request of Congress in Denver in May 2000 in which a hypothetical terrorist sprayed airborne plague bacteria at a concert, a survey of hospital emergency departments showed that as few as 50 casualties could not be well served. The simulation called attention to the infrastructure weaknesses of many public health systems, noting inadequacies of capacity, underfunding, and inability to recognize a new epidemic.
Although bioterrorism events such as the anthrax cases in 2001 may be small-scale, a bioterrorism attack could leave hundreds of thousands dead or incapacitated. In the anthrax event, which involved contaminated letters and resulted in five deaths, it took several days for the first case to be diagnosed. Only later was it recognized that one form of respiratory anthrax could be released from sealed envelopes. The old notion that physicians are the first line of defense for public health was proved again because only physicians know to diagnose diseases, determine who has been exposed and to what agent, and determine who will have to be quarantined.
The period immediately after a bioterrorist attack is crucial for saving lives and managing public panic. An adequate response at the local level is essential, and local agencies must be equipped for an effective response. Although the federal government plans to spend billions of dollars to increase the stockpile of antibiotics and vaccines and develop protection and treatments against bioterrorism agents, funds are needed for infrastructure improvements of state and especially local public health departments to put those materials to use. In addition to stockpiling vaccines and medications, more needs to be done to enable local health agencies to function and respond in the first twelve hours after an attack. Aside from bioterrorism readiness, the capacity for full local responses also will upgrade the public healthcare system because if a local public healthcare system were more fully integrated, it could respond more effectively to bioterrorism, or to such unexpected developments as the emergence of new highly communicable and potentially deadly disease, SARS (severe acute respiratory syndrome).
The threat of bioterrorism by itself may cause major disruptions. Past experiences with bioterrorism show the need for infrastructure changes to facilitate immediate responses. Those responses require the ability to provide the public with accurate and consistent information. Public health must use its long experience in addressing and responding to naturally occurring infectious diseases in large populations to deal with the challenges of bioterrorism, but this may be difficult to undertake in view of other demands on the system. Agencies must be capable of responding both to actual illnesses of exposed persons and to psychogenic casualties and also must be aware of the likelihood of injury to healthcare workers. Because bioterrorism is a crime, law enforcement agencies may be involved. Teamwork is needed with a cross section of public health professions, and public health physicians must learn to recognize diseases that may be related to bioterrorism. The Centers for Disease Control and Prevention's (CDC) National Electronic Disease Surveillance System project provides funds to help states develop electronic modalities to speed reporting.
An immediate response is essential to address events that cause large numbers of casualties, but states also must have an independent ability to cope with smaller-scale events during the first twelve to forty-eight hours after a bioterrorism attack. State and local agencies must develop plans to prevent the spread of infection from bioterrorism agents. Guidance is provided by the CDC in the "Model State Emergency Powers Act" and "Smallpox Plan and Guidelines" to deal with the complex challenges of controlling communicable disease initiated by bioterrorism.
Planning is necessary for the stockpiling of antibiotics as well as to deal with the economic impact of bioterrorism, which is likely to be very high. The economic impact of the release of a Category 1 agent might range from $500 million to $26.2 billion per 100,000 persons exposed, depending on the agent. Public health agencies must ensure that future means and projections are adequate to respond to the risks involved and that adequate information and a capacity for a quick response are available.
Smallpox is a very effective agent for bioterrorism because in nonimmune persons the mortality rate can approach 30 percent and because person-to-person airborne transmission may occur rapidly. There is no effective antiviral therapy against smallpox because the disease effectively was eradicated by 1977 through a World Health Organization program. Serious viral diseases occur in specific locations, and physicians outside their normal locales are likely to mistake them for other local ailments. Other diagnostic difficulties arise because those cultures may be hard to culture from humans and may pose risks to laboratory personnel. Few practitioners have ever seen a case of smallpox, and cases are likely to be mistaken for more common diseases. There is also substantial resistance to smallpox immunization because of possible adverse reactions that have received broad publicity even though they occur very infrequently. Immunization is possible for smallpox, but there are few immunization strategies for other viral diseases. Viral agents as weapons of mass destruction pose major risks because they are highly contagious in susceptible populations and have a high rate of fatality (Bronze et al.).
Because pathogens used for bioterrorism may be spread without being observed immediately, infectious agents may not be discovered until it is too late to respond. Detectors that consist of electronic chips that can detect pathogens through the use of antibodies or DNA are being developed, and an important question will be to determine where to place those devices, which apply a new and expensive technology (Casgrande).
Bioterrorism is analogous to what has been referred to as ecoterrorism, which uses existing industrial and ecological hazards against populations near atomic power plants or other plants that use or store dangerous substances. Attacks on such plants that result in the release of hazardous substances may equal or exceed the consequences of bioterrorism (Prenders and Thomas). The consequences of accidental releases of hazardous substances in Bhopal, India, have made people aware of the potential of intentional releases through acts of terrorism.
Public health law is a developing field that is based on established principles and legal tradition yet is contemporary and responsive to current needs. Based on the police power of the state and federal powers delegated under the U.S. Constitution, public health law has experienced a significant expansion through its inclusion of fields such as the law of mental health, the law of occupational health and safety, major aspects of environmental law, and the growing area of legal developments related to genetic disease. Although the domain of public health law has expanded, it has retained its essential purpose of advancing the public good at the least cost to individual freedom.
frank p. grad (1995)
revised by author
SEE ALSO: AIDS: Public Health Issues; Bioterrorism; Coercion; Conscience, Rights of; Environmental Policy and Law; Epidemics; Eugenics; Health Screening and Testing in the Public Health Context; Paternalism; Public Health
Alden v. Maine. U.S. 706 (1999).
Arras, John, and Hunt, Robert. 1983. Ethical Issues in Modern Medicine, 2nd edition. Palo Alto, CA: Mayfield.
Bayer, Ronald. 1989. Private Acts, Social Consequences: AIDS and the Politics of Public Health. New York: Free Press.
Beauchamp, Tom L., and Childress, James F. 1983. Principles of Biomedical Ethics, 2nd edition. New York: Oxford University Press.
Bentham, Jeremy. 1969a. "A Fragment on Government." In A Bentham Reader, ed. Mary Peter Mack. New York: Pegasus.
Bentham, Jeremy 1969b. "An Introduction to the Principles of Morals and Legislation." In A Bentham Reader, ed. Mary Peter Mack. New York: Pegasus.
Bronze, Michael S.; Huycke, Mark M.; Machado, Linda L.; Voskuhl, Gene W; and Greenfield, Ronald A. 2002. "Viral Agents as Biological Weapons and Agents of Bioterrorism." American Journal of Medical Sciences 323(6): 316–325.
Buchanan, Allen. 1989. "Health-Care Delivery and Resource Allocation." In Medical Ethics, ed. Robert M. Veatch. Boston: Jones and Bartlett.
Buck v. Bell. U.S. 200 (1927).
Caplan, Arthur L., ed. 1992. When Medicine Went Bad: Bioethics and the Holocaust. Totowa, NJ: Humana Press.
Casagrande, Rocco. 2002. "Technology against Terror." Scientific American 287(4): 82.
Chase, Alan. 1977. The Legacy of Malthus: The Social Cost of the New Scientific Racism. New York: Knopf.
Commonwealth v. Alger. 61 Mass. 53 (1851).
Crowley v. Christiansen. 137 U.S. 86 (1890).
Duster, Troy. 1990. Back Door to Eugenics. New York: Routledge.
Evans, R. Gregory; Crutcher, James M.; Shadel, Brooke; Clements, Bruce; and Bronze, Michael S. 2002. "Terrorism from a Public Health Perspective." American Journal of Medical Sciences 323(6): 291–297.
Gaylord, C. Lester 1978. "The Sterilization of Carrie Buck." Case & Com 83(5): 18–20, 21–26.
Grad, Frank P. 1985. "The Ascendancy of Legislation: Legal Problem Solving in Our Time." Dalhousie Law Journal 9(2): 228–260.
Grad, Frank P. 1986. "Public Health Law." In Public Health and Preventive Medicine, 12th edition, ed. John M. Last. Norwalk, CT: Appleton-Century-Crofts.
Grad, Frank P. 1990. The Public Health Law Manual, 2nd edition. Washington, D.C.: American Public Health Association.
Griswold v. Connecticut. 381 U.S. 479 (1965).
Henkin, Louis. 1974. "Privacy and Autonomy." Columbia Law Review 74(7): 1410–1433.
Hubbard, Ruth, and Wald, Elijah. 1993. Exploding the Gene Myth: How Genetic Information Is Produced and Manipulated by Scientists, Physicians, Employers, Insurance Companies, Educators, and Law Enforcers. Boston: Beacon Press.
Jacobson v. Massachusetts. 197 U.S. 11 (1905).
Jew Ho v. Williamson. 103 F.10 Circuit Court, N.D. Cal. (1900).
King, Patricia. "The Past as Prologue: Race, Class, and Gene Discrimination." In Gene Mapping: Using Law and Ethics as Guides, ed. George Annas and Sherman Ellis. New York: Oxford University Press.
Kühl, Stefan. 1994. The Nazi Connection: Eugenics, American Racism, and German National Socialism. New York: Oxford University Press.
Lombardo, Paul A. "Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom." Journal of Contemporary Law and Policy 13(1): 1–25.
Markel, Howard. 1992. "The Stigma of Disease: Implications of Genetic Screening." American Journal of Medicine 93: 209–211.
Mugler v. Kansas. 123 U.S. 623 (1887).
Munn v. Illinois. 94 U.S. 113 (1876).
Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books.
Pickens, Donald K. 1968. Eugenics and the Progressives. Nashville, TN: Vanderbilt University Press.
Prenders, Michael J., and Thomas, William L. "Ecoterror: Rethinking Environmental Security after September 11." Natural Resources and Environment 17(2).
Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge. 36 U.S. 420 (1837).
Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press.
Reilly, Philip. 1991. The Surgical Solution: A History of Involuntary Sterilization in the United States. Baltimore: Johns Hopkins University Press.
Rosen, George. 1958. The History of Public Health. New York: MD Publications.
Skinner v. Oklahoma. U.S. 535 (1942).
Soloway, Richard A. "The 'Perfect Contraceptive': Eugenics and Birth Control Research in Britain and America in the Interwar Years." Journal of Contemporary History 30(4): 637–664.
Tribe, Laurence H. 1978. "Rights of Privacy and Personhood." In American Constitutional Law. Mineola, NY: Foundation Press.
U.S. v. One Package of Japanese Pessaries. 86 F.2d 737 (2d Cir.1936).
VanDeVeer, Donald, and Regan, Tom, eds. 1987. Health Care Ethics: An Introduction. Philadelphia: Temple University Press.
Veatch, Robert M. 1981. A Theory of Medical Ethics. New York: Basic Books.
Yick Wo v. Hopkins. 118 U.S. 356 (1886).