Introduction to this Initiative

The intersection of law and public health (which considers the overall health and well-being of society) manifests itself as a discipline aptly known as public health law. Public health policy development and the subsequent enforcement of such has yielded an outcome unmatched by either discipline independently. Consider this. During the 20th century, advances in public health and its subsequent enforcement have increased the life expectancy of Americans by 25 years!

This is an unprecedented accomplishment. Vaccination, motor vehicle safety, workplace safety, food safety, family planning, drinking water fluoridation, tobacco controls, and infection control have all contributed to the overall health and well-being of American society. All of these advancements can be attributed to a salutary combination of advances in science and technology, the enactment of public health regulation, and – importantly – the crafting and dissemination of effective public health messaging.

Although enforced and often challenged in the context of Constitutional Law, public health regulation predates the Constitution. As an example, and in light of the recent pandemic, consider quarantine. Quarantine was practiced in biblical times during leprosy outbreaks, and the term itself was coined during the Black Plague (circa 1347). The term arose from the French word quarante (forty), as ships arriving in Venice were made to anchor for 40 days prior to landing. Quarantine has been implemented in the United States to prevent the spread of yellow fever, tuberculosis, smallpoxox, influenza (including the devastating Spanish Flu), SARS, and presently SARS-CoV-2.1

Today, a combination of state law and the U.S. Constitution provide the authority for the enforcement of public health law, and set a framework for the consideration of measures designed to combat COVID-19. The police power grants each state the right to enact laws and measures designed to protect the public’s health, safety ,and welfare. In the 1824 case Gibbons v. Ogden, the United States Supreme Court stated: ” .[Q]uarantine and health laws…are considered as flowing from the acknowledged power of a State to provide for the health of its citizens.” Because a cardinal command of public health law is to use the least restrictive alternative in the face of health threats, authorities aim for voluntary confinement where possible. In the case of COVID-19, that has not always been possible. The lockdown orders have been necessary to “flatten the curve” of infection, ensuring that hospitals and front-line health care workers are not overwhelmed by a crush of cases.

Orders such a mandated lockdowns and restrictions of the size of crowds that can gather must be carefully drafted to respond to the degree of threat, though, because the police power is circumscribed by the Constitution’s guarantees of fundamental rights. In the context of a pandemic such as COVID-19, these importantly include freedom of assembly, freedom of religion, and the basic right to liberty.

In subsequent posts, we will examine and critique (among other issues) how courts have struck the balance between ensuring the public’s health and safeguarding the individual liberties that we rightly cherish, as well as other legal issues that arise under COVID-19. We welcome suggestions for future posts and encourage guest bloggers.

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Protest in the Time of Quarantine: Balancing Public Health Goals

During quarantine, which is authorized as a means to protect the well-being of the public through the state police power, our civil liberties are limited. Two such related liberties are the Freedom of Speech and Assembly secured by the First Amendment to the U.S. Constitution. Given recent events, the protection of quarantine for the public good has been set against another public health issue: racism, and the violence that is its too-frequent accompaniment.

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