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, smallpox, influenza (including the devastating Spanish Flu), SARS, and presently SARS-CoV-2.1 (known as “COVID-19”).

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 as 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. Public health authorities face a delicate and challenging balancing act. As we’ll explore in the next post, the recent protests in the wake of the murder of George Floyd have somewhat changed the calculus, at least for some public officials and private actors.

In subsequent posts, we will examine and critique 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.

John Culhane is Professor of Law, H. Albert Young Fellow in Constitutional Law, and Co-Director of the Family Health Law & Policy Institute at Delaware Law School (Widener University). He teaches and writes in the areas of public health, tort law, constitutional law, and family law.

Daniel Timmerman, DO, MPH is a third-year student at Delaware Law School.

We hope to provoke discussion relevant to the coronavirus pandemic, the present quarantine and whether and to what extent public health benefits should displace individual liberties. Comments appreciated.

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