By Stephen Teret
We're public health people. We've chosen to devote our careers to
protecting and enhancing the well-being of populations. For some
of us, this means looking through microscopes; others collect and
analyze data; and some seek change by formulating policy. But whatever
our method, we place among our highest values the health of people.
Let's recognize, however, that we are a self-selected group not
representative of the population as a whole. Each of our neighbors
has different priorities in his or her own pantheon of values. For
some, wealth reigns; others might glorify wisdom as the highest
value; and, many will cherish liberty most dearly over health or
safety. (After all, children are taught to respect "Give me
liberty or give me death" as an essential American value.)
But sometimes, values like health and liberty can clash. The history
of public health law in the United States is a never-ending attempt
to balance the needs of public health with the freedoms of individuals.
Almost a century ago, the U.S. Supreme Court wrestled with the issue
of mandatory smallpox vaccination in the case of Jacobson v.
Massachusetts. Henning Jacobson argued that the Constitution
protected him from unwanted bodily invasions such as compulsory
vaccination. The Court disagreed, finding instead that the police
powers of states authorize reasonable regulations for the protection
of public health and 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 freed from restraint. There are manifold restraints to which
every person is necessarily subject for the common good."
Since that 1905 decision, the rights of individuals generally have
taken on greater weight. Privacy, a liberty found by the courts
to be present among the shadows of the Bill of Rights, now protects
individuals' interests in making highly personal decisions about
topics such as procreation and the confidentiality of certain types
of personal information. Efforts to protect and enhance the public's
health need to be respectful of these rights; undue interference
with personal liberties by laws designed to protect the public's
health can render those laws unconstitutional.
Enter bioterrorism. Does the threat of a public health catastrophe,
such as the resurgence of smallpox against which the public is presently
unprotected, warrant the consideration of measures that otherwise
might be considered unduly restrictive? Soon after Sept. 11, the
School's Center for Law and the Public's Health was asked by the
federal Centers for Disease Control and Prevention to prepare a
model law that delineates the emergency health powers states would
need during such a public health catastrophe.
In crafting the model law, the protection of individuals' freedoms
and dignity was of enormous importance to us, while we also recognized
the need for health authorities to be able to quarantine or isolate
individuals, seize property, and perform other acts that are basically
antithetical to individuals' freedoms. Balancing these interests
and building liberty safeguards into the exercise of extraordinary
powers were great challenges and remain so.
Legislators and judges, whose responsibility it is to ultimately
select the correct policy balance between the common good and personal
liberties, will struggle, as we have, with strongly voiced opinions
of persons having competing values. This struggle is at the heart
of public health. Some within public health have argued that our
professional commitment is limited to reducing morbidity and mortality
in populations. But if instead, our commitment is seen as ensuring
and enhancing the well-being of populations, then the preservation
of personal liberties must be a balancing factor in efforts to interrupt
the transmission of a disease.
Teret, JD, MPH '79, is professor and associate chair,
Department of Health Policy and Management; and director of the
Center for Law and the Public's Health.