No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
A Call for Evidence-Based Public Health Law
Published online by Cambridge University Press: 06 January 2021
As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be placed on the hysteria that accompanies emergencies. Indeed, these examples merely illustrate an unfortunate array of examples where empirical evidence is ignored in the hopes of quelling paranoia. These policy approaches are not only constitutionally questionable, they generate their own risk to public health. The ability of the law to jeopardize public health approaches to infectious disease control can, and should, be limited through a renewed emphasis on science as the foundation of public health, coordination through all levels and branches of government, and through a serious commitment by the judiciary to provide oversight. Infectious disease creates public anxiety, but this cannot justify unwarranted dogmatic approaches as a response. If we as a society hope to ensure efficient, constitutional control over the spread of disease, it is imperative that science take its rightful place at the forefront of governmental decision-making and judicial review. Otherwise, the law becomes its own public health threat.
1 John Stuart Mill, On Liberty 56 (1880).
2 Parmet, Wendy E., J.S. Mill and the American Law of Quarantine, 1 Pub. Health Ethics 210, 214 (2008)Google Scholar [hereinafter Parmet, J.S. Mill].
3 Parmet, Wendy E., AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 Hofstra L. Rev. 53, 53 (1985)Google Scholar [hereinafter Parmet, AIDS] (footnote omitted).
4 See id. Though the term outbreak was often applied, its use was questionable given the disease and threat of spreading. See infra notes 75-78 and accompanying text.
5 Denise Grady, Ebola Cases Could Reach 1.4 Million Within Four Months, C.D.C. Estimates, N.Y. Times (Sept. 23, 2014), http://www.nytimes.com/2014/09/24/health/ebola-cases-could-reach-14-million-in-4-months-cdc-estimates.html?_r=0. Within the text of the story it became clear that this was merely a projection of a worst-case scenario. Id.
6 Lizzie Parry, It Is ‘Very Likely’ That the Ebola Virus Will Spread Through Airborne Particles, Experts Say, Daily Mail (Feb. 20, 2015), http://www.dailymail.co.uk/health/article-2961381/It-likely-Ebola-virus-spread-airborne-particles-say-experts.html.
7 Sarah Larimer, Will the Ebola Virus Go Airborne? (And Is That Even the Right Question?), Wash. Post (Sept. 15, 2014), https://www.washingtonpost.com/news/to-your-health/wp/2014/09/15/will-the-ebola-virus-go-airborne-and-is-that-even-the-right-question/ [http://perma.cc/LF6Q-5ESE]; Michael T. Osterholm, What We’re Afraid to Say About Ebola, N.Y. Times (Sept. 11, 2014), http://www.nytimes.com/2014/09/12/opinion/what-were-afraid-to-say-about-ebola.html. A response to Osterholm’s New York Times article was published in the presumably less popular Virology Blog, explaining that the chance of Ebola mutating to create an airborne threat was “so remote that we should not use it to frighten people.” Vincent Racaniello, What We Are Not Afraid to Say About Ebola Virus, Virology Blog (Sept. 18, 2014), http://www.virology.ws/2014/09/18/what-we-are-not-afraid-to-say-about-ebola-virus/ [http://perma.cc/3RZM-8VJK].
8 Brady Dennis & Peyton M. Craighill, Ebola Poll: Two-thirds of Americans Worried About Possible Widespread Epidemic in U.S., Wash. Post (Oct. 14, 2014), https://www.washingtonpost.com/national/health-science/ebola-poll-two-thirds-of-americans-worried-about-possible-widespread-epidemic-in-us/2014/10/13/d0afd0ee-52ff-11e4-809b-8cc0a295c773_story.html [http://perma.cc/GAA8-DF7D].
9 Annas, George J., Puppy Love: Bioterrorism, Civil Rights, and Public Health, 55 Fla L. Rev. 1171, 1178 (2003)Google Scholar. All the more reason why public health response should be based on science for accurate risk assessment. Id.
10 See Hodge, James G. Jr., Legal Myths of Ebola Preparedness and Response, Notre Dame J.L. Ethics, & Pub. Pol’y 355, 357 (2015)Google Scholar (finding that the public’s understanding of risk and governmental power can become distorted during a perceived public health threat, especially if propelled by irresponsible, misinformed media).
11 2014 Ebola Outbreak in West Africa – Case Counts, CDC, (updated Mar. 3, 2016), http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html [http://perma.cc/4RP9-DXWV].
12 See Rothstein, Mark A., Ebola, Quarantine, and the Law, Hastings Center Rep. 5, 5 (2015)Google Scholar (blaming the United States’ response to Ebola, in part, on “elected officials who ignored the advice of public health experts and imposed unnecessary quarantines that succeeded only in spreading public panic”).
13 Id. (finding it counterproductive for states to disregard CDC recommendations despite a lack of evidence that their measures of social distancing would improve the chance to control disease spread).
14 Liz Robbins et al., Unapologetic, Christie Frees Nurse From Ebola Quarantine, N.Y. Times (Oct. 27, 2014), http://www.nytimes.com/2014/10/28/nyregion/nurse-in-newark-to-be-allowed-to-finish-ebola-quarantine-at-home-christie-says.html.
15 Id.
16 Governor Andrew Cuomo’s Press Office, Governor Andrew Cuomo and Governor Chris Christie Announce Additional Screening Protocols for Ebola at JFK and Newark Liberty International Airports (Oct. 24, 2014), https://www.governor.ny.gov/news/governor-andrew-cuomo-and-governor-chris-christie-announce-additional-screening-protocols-ebola [http://perma.cc/F46Q-DHW5].
17 Kaci Hickox, Her Story: UTA Grad Isolated at New Jersey Hospital in Ebola Quarantine, Dallas Morning News (Oct. 29, 2014), http://www.dallasnews.com/ebola/headlines/20141025-uta-grad-isolated-at-new-jersey-hospital-as-part-of-ebola-quarantine.ece [http://perma.cc/ZW7L-5JME].
18 Id.
19 Id.
20 Id.
21 Id.; Hodge, supra note 10, at 367-68; Sheri Fink, Ebola Crisis Passes, but Questions on Quarantines Persist, N.Y. Times (Dec. 2, 2015), http://www.nytimes.com/2015/12/03/health/ebola-crisis-passes-but-questions-on-quarantines-persist.html.
22 Rothstein, supra note 12, at 5.
23 See discussion infra Part II.
24 Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 4 (2d ed. 2008) [hereinafter Gostin, Power].
25 See Rothstein, supra note 12, at 5 (stating that “the central ethical conflict of public health [is] the balancing of individual and societal interests”).
26 Gostin, Power, supra note 24, at 5-6 (“The government has primary responsibility for the public’s health.”). Those who prefer a more narrow focus on public health, rather than addressing underlying social, economic, and ecological causes of injury and disease, still include infectious disease control as a duty of the state). Id. at 39.
27 Id. at 91–92. This authority can be used on a broad spectrum from slight inconveniences to substantial restrictions on individual liberties; for example, fluoridation of water, helmet and seat belt laws, to compulsory vaccinations, quarantine and isolation, and even forced medical treatment. Ulrich, Michael, With Child, Without Rights?: Restoring a Pregnant Woman’s Right to Refuse Medical Treatment Through the HIV Lens, 24 Yale J.L. & Feminism 303, 323–34 (2012)Google Scholar [hereinafter Ulrich, With Child]. Involuntary governmental administration of medical treatment is only allowable in extremely rare circumstances where there is a judicial determination that the treatment is in the best medical interest of the individual given their condition, is the least intrusive means necessary to further an essential government interest, and is substantially unlikely to have side effects inhibiting that government interest. Sell v. United States, 539 U.S. 166, 179 (2003). Despite the safety and efficacy of vaccinations, they are still only compelled indirectly. Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905) (holding a statute constitutional that required a healthy individual to pay a fine for refusing to receive a smallpox vaccination).
28 Jacobson, 197 U.S. at 26.
29 Id. at 25.
30 Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).
31 See, e.g., Zucht v. King, 260 U.S. 174, 176 (1922) (citing Lieberman v. Van De Carr, 199 U.S. 552 (1905)) (noting that courts “ha[ve] settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law”).
32 See Parmet, J.S. Mill, supra note 2, at 215 (finding that a “willingness to accept almost without question an official’s claim that quarantine was justified opened the door to quarantine’s abuse”) (citation omitted).
33 Parmet, AIDS, supra note 3, at 70.
34 Gostin, Lawrence O., Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health 576, 579 (2005)Google Scholar.
35 See generally Jacobson, 197 U.S. 11. It may be worth noting that Lawrence Gostin describes the floor of constitutional protection established in Jacobson through four overlapping standards: “necessity, reasonable means, proportionality, and harm avoidance.” Id. at 579. Although there are similarities between his description and my own, I find that the categories and protections as I describe them are more distinct from one another and, thus, clarify the steps that should be taken when evaluating any public health measure. The approach described also fits within typical case law structure of multi-prong tests where step-by-step analysis is required.
36 Jacobson, 197 U.S. at 12, 27-28 (using phrases such as “necessary for the public health,” “arbitrary requirement,” and “necessity of the case ”); see also Parmet, J.S. Mill, supra note 2, at 213 (finding that the Jacobson court would only uphold the compulsory vaccination when there was evidence “that smallpox existed in the community”). But see Ulrich, With Child, supra note 27, at 327–28 (determining that the risk of transmitting HIV from woman to fetus while pregnant or during birth would not constitute a public health threat warranting governmental intrusion).
37 Jacobson, 197 U.S. at 31 (evaluating whether the means utilized by the state have a “real” and “substantial relation” to the protection of the public health); see also Parmet, J.S. Mill, supra note 2, at 213 (stating that the Court could only uphold the policy if vaccinations were reasonably expected to prevent an epidemic).
38 Jacobson, 197 U.S. at 28 (explaining that where the law “went beyond the necessity of the case and under the guise of exerting a police power invaded the domain of Federal authority and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws invalid”). This third step can be done as a facial challenge or an as-applied challenge. For example, while vaccinations may be an apt policy generally, they may be unreasonable for an individual who has contraindications such that the vaccination would seriously jeopardize their health. See, e.g., id. at 30 (describing the statute’s exception for individuals who are “unfit” to receive vaccinations). Conversely, quarantining an individual who was exposed to Ebola and had symptoms of infection may be upheld, while a policy that carried a mandatory quarantine for anyone returning from any African country, including those with no known cases, would fail due to overinclusiveness. See, e.g., Order Pending Hearing at 3, Mayhew v. Hickox, No. CV-2014-36 (D. Me. Oct. 31, 2014) [hereinafter Hickox Order] (holding that the state did not prove by “clear and convincing evidence” that the requested mandatory quarantine was necessary to protect the public health).
39 See, e.g., Haffajee, Rebecca et al., What is a Public Health “Emergency”?, 371 New Eng. J. Med. 986, 988 (2014)Google Scholar (“[C]oncerns about due process are amplified when emergency orders restrict individual freedoms and property rights.”).
40 See Abbott, Ann L., A Summary of Florida’s Law of Quarantine of Persons and Public Health Law Reform Issues, 2 Fl. Pub. Health Rev. 10, 12 (2005)Google Scholar.
41 Jacobson, 197 U.S. at 27.
42 Id. at 28.
43 Id. at 34.
44 Id. at 31.
45 Id. at 35-36.
46 Id. at 35-37.
47 Id. at 38–39.
48 Id. at 37.
49 Mariner, Wendy K. et al., Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 Am. J. Pub. Health 581, 582 (2005)Google Scholar.
50 Boone v. Boozman, 217 F. Supp. 2d 938, 941 (E.D. Ark. 2002).
51 Id. at 954.
52 Id.
53 Id. (emphasis added).
54 See id.
55 See generally Bayer, Ronald, The Continuing Tensions Between Individual Rights and Public Health: Talking Point on Public Health Versus Civil Liberties, 8 EMBO Reps. 1099 (2007)Google Scholar (discussing the lack of any clear criteria for what constitutes a public health threat, and exploring the resulting tensions between exercises of police power and civil liberties).
56 See Boone v. Boozman, 217 F. Supp. 2d 938, 954 (E.D. Ark. 2002).
57 Id.
58 Id.
59 Id. at 954, 956.
60 Id. at 954.
61 See id.
62 See, e.g., Escobar, Natalia A., Leaving the Herd: Rethinking New York’s Approach to Compulsory Vaccination, 80 Brook. L. Rev. 255, 268 (2014)Google Scholar (discussing the large amount of discretion afforded to states regarding mandatory immunizations).
63 See Boone, 217 F. Supp. 2d at 955.
64 See Buck v. Bell, 274 U.S. 200, 205 (1927).
65 Id. at 207.
66 Id. at 205-07.
67 Id. at 206-07 (internal quotation marks omitted).
68 Id. at 206.
69 See id. at 206-07.
70 Id. at 207 (internal quotation marks omitted).
71 Mariner et al., supra note 49, at 584.
72 See id.
73 Buck, 274 U.S. at 206-07.
74 Fins, Joseph J., Editorial, Ideology and Microbiology: Ebola, Science, and Deliberative Democracy, 15 Am. J. Bioethics, Apr. 2015CrossRefGoogle Scholar, at 2.
75 2014 Ebola Outbreak in West Africa – Case Counts, supra note 11.
76 Id.
77 Hodge, supra note 10, at 361-62.
78 Id. at 363.
79 Id. at 364.
80 American Civil Liberties Union & Yale Global Health Justice Partnership, Fear, Politics, and Ebola: How Quarantines Hurt the Fight Against Ebola and Violate the Constitution 26 (2015), https://www.aclu.org/sites/default/files/field_document/aclu-ebolareport.pdf [http://perma.cc/MVA7-KWZA] [hereinafter ACLU & GHJP].
81 See Andrew C. McCarthy, Ebola-Quarantine Objections Are Frivolous, National Review (Nov. 1, 2014), http://www.nationalreview.com/article/391642/ebola-quarantine-objections-are-frivolous-andrew-c-mccarthy [http://perma.cc/GAV9-3386].
82 Rothstein, supra note 12, at 5.
83 Marc Santora, Doctor in New York City Is Sick with Ebola, N.Y. Times (Oct. 23, 2014), http://www.nytimes.com/2014/10/24/nyregion/craig-spencer-is-tested-for-ebola-virus-at-bellevue-hospital-in-new-york-city.html.
84 See generally ACLU & GHJP, supra note 80. Though the terms isolation and quarantine are often conflated, it should be noted that they are indeed different. Gostin, Power, supra note 24, at 428. “[I]solation is the separation, for the period of communicability, of known infected persons in such places and under such conditions as to prevent or limit the transmission of the infectious agent.” Gostin, Power, supra note 24, at 429 (emphasis in original). “[Q]uarantine is the restriction of the movement of persons who have been exposed, or potentially exposed, to infectious disease, during its period of communicability, to prevent transmission of infection during the incubation period.” Gostin, Power, supra note 24, at 429. This paper will focus on quarantine, which is a more controversial and questionable infringement on the freedom of movement given that the individual being quarantined is not in fact infected with the disease.
85 ACLU & GHJP, supra note 80, at 26.
86 Id. at 36-37.
87 See Gonsalves, Gregg & Staley, Peter, Panic, Paranoia, and Public Health—The AIDS Epidemic’s Lessons for Ebola, 371 New Eng. J. Med. 2348, 2348 (2014)Google Scholar (noting that states rejecting scientific evidence of the CDC undermines their credibility and risks the country’s ability to respond to future threats efficiently).
88 See Rothstein, supra note 12, at 5.
89 See Parmet, J.S. Mill, supra note 2, at 213.
90 ACLU & GHJP, supra note 80, at 26.
91 See Hodge, supra note 10, at 366.
92 Fink, supra note 21; Hickox, supra note 17.
93 ACLU & GHJP, supra note 80, at 8, 25-26; Gonsalves & Staley, supra note 87, at 2348.
94 Hodge, supra note 10, at 368.
95 See generally Hickox Order, supra note 38.
96 Id. at 1.
97 Id. at 3.
98 Id.
99 Id.
100 See Robbins et al., supra note 14 (quoting Governor Christie as stating that the “obligation of elected officials is to protect the public health of all people, and if that inconvenienced her for a period of time, that's what we need to do to protect the public”). Further demonstrating a focus on political posturing, Governor Christie also stated that there was a need to go “above and beyond what the CDC is recommending,” and that the CDC “eventually will come around to our point of view on this.” ACLU & GHJP, supra note 80, at 25 (internal quotation marks omitted).
101 See, e.g., Gonsalves & Staley, supra note 87 at 2348 (describing “[t]he argument against these [quarantines] is based on the lack of scientific grounds for the quarantine criteria, the likelihood that unnecessary restrictions on those returning from the region will dissuade health care workers from volunteering to help fight the epidemic, [and] the implicit and erroneous public health message sent by these quarantines that asymptomatic persons are a danger to their communities ….”); Josh Barro, AIDS Activists Oppose Cuomo on Ebola Quarantines, N.Y. Times (Oct. 27, 2014), http://www.nytimes.com/2014/10/28/upshot/aids-activists-oppose-cuomo-on-ebola-quarantines.html (stating that Dr. Anthony Fauci, who heads the National Institutes of Allergy and Infectious Diseases criticized the quarantining of asymptomatic individuals).
102 See Gonsalves & Staley, supra note 87, at 2348 (discussing states disregarding CDC guidance that asymptomatic individuals did not need to be quarantined).
103 Parmet, J.S. Mill, supra note 2, at 210; see Rothstein, supra note 12, at 6 (“[Q]uarantine is the most intrusive public health measure ….”).
104 Parmet, J.S. Mill, supra note 2, at 213 (citation omitted).
105 Gonsalves & Staley, supra note 87, at 2348.
106 ACLU & GHJP, supra note 80, at 28.
107 Requests for data were submitted to all fifty states, but only six responded. Id.
108 Id. at 29.
109 Id. at 27.
110 Amanda Terkel, Oklahoma Teacher Will Have to Quarantine Herself After Trip to Ebola-Free Rwanda, HuffPost Politics (Oct. 28, 2014, 3:28 PM), http://www.huffingtonpost.com/2014/10/28/ebola-rwanda-oklahoma-teacher_n_6062726.html [http://perma.cc/Q7DK-6P3V] (discussing two students in New Jersey who “were forced to delay their first day of school” after moving from Rwanda and a teacher in North Carolina forced to stay home after returning from South Africa).
111 Allison Ross, Teacher Leaves Catholic School Amid Ebola Fears, Courier-Journal (Nov. 4, 2014, 9:49 AM), http://www.courier-journal.com/story/news/education/2014/11/03/louisville-catholic-teacher-resigns-amidst-ebola-fears/18417299/ [http://perma.cc/SVM6-UR3E].
112 ACLU & GHJP, supra note 80, at 29.
113 Terkel, supra note 110.
114 Gonsalves & Staley, supra note 87, at 2348.
115 Fins, supra note 74, at 1 (describing the first U.S. case of Ebola as leading to a “predictable media deluge, a good bit of hysteria, and predictable political posturing”).
116 Rothstein, supra note 12, at 5.
117 Hodge, supra note 10, at 366; see supra note 35 and accompanying text.
118 Gonsalves & Staley, supra note 87, at 2348; see also Parmet, AIDS, supra note 3, at 53-54 (discussing the range of public figures calling for isolation of those carrying the disease).
119 Gonsalves & Staley, supra note 87, at 2348.
120 See id.
121 See HIV in the United States: At a Glance, CDC, http://www.cdc.gov/hiv/statistics/overview/ataglance.html [http://perma.cc/4WCW-5URS] (finding “the annual number of new HIV infections has remained relatively stable” in recent years).
122 See, e.g., supra notes 14-21, 91-94 and accompanying text (describing the quarantine of Kaci Hickox when she returned from West Africa).
123 Crowley, Jeffrey S. et al., The Americans with Disabilities Act and HIV/AIDS Discrimination: Unfinished Business, 314 J. Am. Med. Ass’n 227, 227-28 (2015)Google Scholar.
124 Gonsalves & Staley, supra note 87, at 2348. As of October 2013, “[f]orty-three states criminalize actions by HIV-positive individuals[,]” either through HIV-specific criminal laws or by prosecuting certain behavior of HIV-positive individuals under general criminal statutes. HIV Criminalization by State Map, LawAtlas: The Policy Surveillance Portal, http://lawatlas.org/query?dataset=hiv-criminalization-statutes [http://perma.cc/SCT7-CHT7].
125 Gonsalves & Staley, supra note 87, at 2348.
126 HIV Criminalization by State Map, supra note 124.
127 Attia, Suzanna et al., Sexual Transmission of HIV According to Viral Load and Antiretroviral Therapy: Systematic Review and Meta-Analysis, 23 AIDS 1397, 1397-98 (2009)Google Scholar.
128 Saundra Young, Imprisoned Over HIV: One Man’s Story, CNN (Nov. 9, 2012), http://www.cnn.com/2012/08/02/health/criminalizing-hiv/index.html [http://perma.cc/L3MR-UXXV].
129 Id.
130 Id.
131 Id.
132 Id.
133 HIV Transmission, CDC, http://www.cdc.gov/hiv/basics/transmission.html# [http://perma.cc/B9Q5-NGMA].
134 See generally Rashida Richardson et al., The Center for HIV Law and Policy, Ending & Defending Against HIV Criminalization: A Manual for Advocates: State and Federal Laws and Prosecutions, (vol. 1 2d ed. 2015), http://www.hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/HIV%20Crim%20Manual%20%28updated%205.4.15%29.pdf [http://perma.cc/K95L-CA9Z] (noting that there have been prosecutions in at least seventeen states for spitting, biting, or blood exposure).
135 See, e.g., id. at 123 (describing the story of “a 51-year-old HIV positive man was charged with exposing another to HIV, among other things, after spitting in the face of a police officer during an arrest”). In 2014, a man was also charged with aggravated assault, battery, and knowingly transmitting HIV after biting someone, despite the CDC finding that the risk of transmission from biting is “negligible.” Id. at 185 (internal quotation marks omitted).
136 Id. at 102.
137 An interesting counter example to HIV criminalization laws is the prevalence of needle-sharing programs. See Abdul-Quader, Abu S. et al., Effectiveness of Structural-Level Needle/Syringe Programs to Reduce HCV and HIV Infection Among People Who Inject Drugs: A Systematic Review, 17 AIDS & Behavior 2878, 2878–79 (2013)Google Scholar. Though drug use is illegal, several state have needle-sharing programs based on scientific evidence that they are effective measures in the effort to constrain the spread of infectious diseases. Id.
138 See, e.g., Ala. Code § 22-11A-21 (1975) (creating a requirement that the infected person knows of his or her infected status); Idaho Code § 39-608 (2011) (requiring knowledge of infected status).
139 For example, there has been a strong push for effective home kits to increase the number of people who are aware of their status, see First Rapid Home-Use HIV Kit Approved for Self-Testing, FDA, http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm310545.htm [http://perma.cc/JSV3-QSMR] (approving a home-testing kit that does not require sending off blood samples).
140 Gostin, Lawrence O., Law, Ethics, and Public Health in the Vaccination Debates: Politics of the Measles Outbreak, 313 J. Am. Med. Ass’n 1099, 1099 (2015)Google Scholar [hereinafter Gostin, Politics].
141 Id.
142 Id. California recently passed legislation allowing medical exemptions, but prohibiting religious exemptions. Adam Nagourney, California Mandates Vaccines for Schoolchildren, N.Y. Times (June 30, 2015), http://www.nytimes.com/2015/07/01/us/california-mandates-vaccines-for-schoolchildren.html?_r=0.
143 See, e.g., Boone v. Boozman, 217 F. Supp. 2d 938, 954 (E.D. Ark. 2002) (citing Prince v Massachusetts, 321 U.S. 158, 166-67 (1944)) (“The constitutionally-protected free exercise of religion does not excuse an individual from compulsory immunization; in this instance, the right to free exercise of religion and parental rights are subordinated to society’s interest in protecting against the spread of disease.”); see also Gostin, Politics, supra note 140, at 1099 (“Because vaccine laws are generally applicable to all school-aged children and in the public interest, the courts find no overriding right to religious freedom.”).
144 Gostin, Politics, supra note 140, at 1099.
145 Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979).
146 Id. at 223.
147 See generally Ulrich, Michael R., Guidance from Vaccination Jurisprudence, 13 Am. J. Bioethics, Sept. 2013, at 40-42CrossRefGoogle Scholar (analyzing court precedent in relation to evaluating religious exemptions to vaccination requirements).
148 Gostin, Politics, supra note 140, at 1099.
149 In re LePage v. State, 18 P.3d 1177, 1181 (Wyo. 2001).
150 Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81, 91 (E.D.N.Y. 1987) (internal quotation marks omitted).
151 Id. at 89-91.
152 Id. at 94.
153 McCarthy v. Boozman, 212 F. Supp. 2d 945, 948-49 (W.D. Ark. 2002).
154 Id. at 949.
155 See id. (“[T]he exemption fails to measure up under the third Lemon factor because the State is required to involve itself in religious matters to an inordinate degree by delving into religious dogma to determine whether a church or religious denomination is worthy of official recognition.”).
156 Gostin, Politics, supra note 140, at 1099-1100.
157 Id. at 1100. “Senator Paul referred to ‘many tragic cases of walking, talking, normal children who wound up with profound mental disorders after vaccines.’” Id. Because the MMR-autism study was first published in a reputable, scientific journal, there is a strong argument that at the time this provided some empirical evidence to question the benefits and burdens evaluation of the vaccine. See Gerber, Jeffrey S. & Offit, Paul A., Vaccines and Autism: A Tale of Shifting Hypotheses, 48 Clinical Infectious Diseases 456, 456 (2009)Google Scholar. But this case study also provides an example of the importance of scientific consensus and the need to assess research methodology. In the case of a connection between MMR and autism, this one study was proven to be improper science, and numerous studies followed that have subsequently shown there is no connection between the two, providing a more rigorous scientific consensus. See Gerber & Offit, supra, at 456. A more lengthy discussion of what constitutes scientific consensus and what would be an appropriate response to a study such as the initial autism publication is important, but beyond the scope of this article.
158 See, e.g., Jack Healy & Michael Paulson, Vaccine Critics Turn Defensive Over Measles, N.Y. Times (Jan. 30, 2015), http://www.nytimes.com/2015/01/31/us/vaccine-critics-turn-defensive-over-measles.html (describing that some parents are “suspicious of pharmaceutical companies and big business [because] … ‘they [try to] raise their children in a natural, organic environment’”).
159 See Sadaf, Alina et al., A Systematic Review of Interventions for Reducing Parental Vaccine Refusal and Vaccine Hesitancy, 31 Vaccine 4293, 4293 (2013)Google Scholar (citation omitted) (“The success of vaccines in reducing disease-associated mortality is second only to the introduction of safe drinking water.”).
160 Salmon, Daniel A. et al., Vaccine Hesitancy: Causes, Consequences, and a Call to Action, 49 Am. J. Preventative Med. S391, S395 (2015) (footnotes omitted)Google Scholar.
161 Gostin, Politics, supra note 140, at 1099.
162 Id.; Adam Nagourney & Abby Goodnough, Measles Cases Linked to Disneyland Rise, and Debate Over Vaccinations Intensifies, N.Y. Times (Jan. 21, 2015), http://www.nytimes.com/2015/01/22/us/measles-cases-linked-to-disneyland-rise-and-debate-over-vaccinations-intensifies.html.
163 See Hodge, supra note 10, at 363. This outbreak also is likely what led to California passing legislation to eliminate religious and philosophical exemptions. Jennifer Medina, California Set to Mandate Childhood Vaccines Amid Intense Fight, N.Y. Times (June 25, 2015), http://www.nytimes.com/2015/06/26/us/california-vaccines-religious-and-personal-exemptions.html.
164 Help Protect Babies from Whooping Cough, CDC (last updated Feb. 11, 2016), http://www.cdc.gov/features/pertussis/ [http://perma.cc/T76G-HQ4J].
165 Gostin, Politics, supra note 140, at 1099.
166 Wolf, Elizabeth R. et al., Impact of a Pertussis Epidemic on Infant Vaccination in Washington State, 134 Pediatrics 456, 457 (2014)Google Scholar.
167 Atwell, Jessica E. & Salmon, Daniel A., Pertussis Resurgence and Vaccine Uptake: Implications for Reducing Vaccine Hesitancy, 134 Pediatrics 602, 602 (2014)Google Scholar.
168 See, e.g., Boone v. Boozman, 217 F. Supp. 2d 938, 954 (E.D. Ark. 2002) (“It is well established that the State may enact reasonable regulations to protect the public health and the public safety, and it cannot be questioned that compulsory immunization is a permissible exercise of the State’s police power.”) (citing Zucht v. King, 260 U.S. 174, 176 (1922)).
169 Gostin, Politics, supra note 140, at 1099. Indeed, the parens patriae power granted to the state is for the explicit purpose of protecting persons under legal disability, such as minors. Gostin, Power, supra note 24, at 95–96.
170 See Morrison v. State, 252 S.W.2d 97, 101-03 (Kan. City Ct. App. 1952) (holding that courts have jurisdiction to intercede when a parent decides to place their theological beliefs above their duty to preserve the life of their child).
171 Gostin, Power, supra note 24, at 73.
172 See Mariner et al., supra note 49, at 588 (“[Twenty-first]-century public health depends on good science, good communication, and trust in public health officials to tell the truth.”)
173 Fins, supra note 74, at 2.
174 See Childress, James F. et al., Public Health Ethics: Mapping the Terrain, 30 J.L. Med. & Ethics 170, 173 (2002)Google Scholar (“When public health agents believe that one of their actions, practices, or policies infringes one or more general moral considerations, they also have a responsibility, in our judgment, to explain and justify that infringement…. [P]ublic health agents should offer public justification for policies in terms that fit the overall social contract in a liberal, pluralistic democracy…. Transparency is also essential to creating and maintain public trust ….”).
175 See id.
176 See Parmet, J.S. Mill, supra note 2, at 218. This may be especially problematic in minority and low-income populations that may already have a lack of trust in the medical community and compulsory governmental action, and who already suffer disproportionately from health burdens. History suggests “that coercive laws have largely targeted disadvantaged minorities[,] …. [with] [q]uarantine laws … most often directed at disfavored immigrant groups.” Mariner et al., supra note 49, at 588.
177 See Childress et al., supra note 174, at 174.
178 See Mariner et al., supra note 49, at 588 (“The public will support reasonable public health interventions if they trust public health officials to make sensible recommendations that are based on science and where the public is treated as part of the solution instead of the problem.”).
179 See Annas, supra note 9, at 1179 (discussing the great blackout of 2003 as an example of how a calm, rational response by government officials help to reduce the public panic and generate a paralleled calm response).
180 See Mariner et al., supra note 49, at 587.
181 Id.
182 Id.
183 See Annas, supra note 9, at 1179 (“[A] government response that is seen by its citizens as arbitrary and compulsory will backfire, and actually be counterproductive ….”). Annas, too, blames the fear of marshal law in China during the SARS epidemic for causing hundreds of thousands to flee and increase the spread of disease. Id.
184 See ACLU & GHJP, supra note 80, at 16.
185 See id.
186 See, e.g., id. at 17 (noting that this is not the first time American health care workers have traveled abroad to fight infectious disease epidemics. It is not even the first time they have done so for Ebola. Yet, the media, politics, and fear created a perfect storm of paranoia around this outbreak that led to a much more extreme response).
187 Santora, supra note 83; see Fink, supra note 21.
188 ACLU & GHJP, supra note 80, at 11-13 (quoting Drazen, Jeffrey M., et al., Ebola and Quarantine, 371 New Eng. J. Med. 2029, 2029 (2014)Google Scholar) (“[F]ever precedes the contagious stage, allowing workers who are unknowingly infected to identify themselves before they become a threat to their community.”).
189 Id. at 11 (“[T]he risk of transmission to others from Dr. Spencer was practically non-existent.”); Santora, supra note 83.
190 Fins, supra note 74, at 2.
191 Id.
192 Parmet, J.S. Mill, supra note 2, at 216; see also Hodge, supra note 10, at 373 (“[A] toxic mix of public health measures may be grounded more so in fervor to respond than efficiency of results or legality to act.”).
193 See Parmet, J.S. Mill, supra note 2, at 216.
194 Id.
195 See Hodge, James G. Jr., et al., Law, Medicine, and Public Health Preparedness: The Case of Ebola, 130 Pub. Health Rep. 1, 1 (2015)Google Scholar); see also Mariner et al., supra note 49, at 588 (“[T]here is a danger that legislatures will turn to laws that restrict personal liberty as a substitute for providing the resources necessary for positive public health programs that actually prevent disease and improve health.”).
196 See Rothstein, supra note 12, at 5 (finding that health care workers would be discouraged from fighting Ebola if there is a chance they will be unnecessarily confined).
197 Gonsalves & Staley, supra note 87, at 2348; see also Hodge et al., supra note 195, at 3 (discussing the 2003 SARS outbreak where many “health care workers were instructed to self-quarantine as needed [unless] they developed [symptoms]”).
198 Fink, supra note 21.
199 See Rothstein, supra note 12, at 6 (“For people with limited resources, staying away from work for twenty-one days–or even a few days–can be an economic hardship. During the SARS epidemic, [many] … countries [passed] legislation prohibiting discrimination [for those] in quarantine and affording them income replacement.”).
200 Id.
201 Id.
202 Id.; see also Annas, supra note 9, at 1184 (“[W]hen public health officials detain or injure individuals because they are acting to protect the community as a whole, the individual should be compensated for harm by the community.”).
203 Jordan, Jane E. et al., Legal, Operational, and Practical Considerations for Hospitals and Health Care Providers in Responding to Communicable Diseases Following the 2014 Ebola Outbreak, 23 U. Miami Bus. L. Rev. 341, 349 n.36 (2015)Google Scholar (citing Kevin Sack et al., Life in Quarantine for Ebola Exposure: 21 Days of Fear and Loathing, N.Y. Times (Oct. 18, 2014), http://www.nytimes.com/2014/10/19/us/life-in-quarantine-for-ebola-exposure-21-days-of-fear-and-loathing.html) (stating that some of the individuals who had contact with the original Ebola victim Eric Duncan “were stigmatized or unable to return to work or school”, despite never becoming infected); see also supra notes 98-108 and accompanying text (discussing a few examples of the detriment endured by some due to ignorance and hysteria).
204 See Parmet, J.S. Mill, supra note 2, at 218 (“Mill argued that policymakers must look beyond the direct costs of the deprivation of liberty of those who are detained.”).
205 Though the example of quarantine was used often in this section, this issue could be applied to evaluations of vaccine exemptions as well. Given limited resources, there is an ethical question of whether there is a justification for using resources for unnecessary evaluations of religious and philosophical exemptions, especially given the fact that they tend to increase the risk of harm to the public.
206 See supra notes 27–39 and accompanying text.
207 Control of Communicable Diseases, 70 Fed. Reg. 71,892, 71,893 (Nov. 30, 2005) (noting that the federal government’s insertion into public health matters dates at least as far back as 1796, when it enacted the first federal quarantine law in response to yellow fever); Parmet, AIDS, supra note 3, at 57.
208 See Parmet, Wendy E., After September 11: Rethinking Public Health Federalism, 30 J.L. Med. & Ethics 201, 201 (2002)Google Scholar [hereinafter Parmet, Sept. 11] (stating that the determination of boundaries between federal and state authority should be conducted with protection of public health as the “dominant value”).
209 Gostin, Power, supra note 24, at 80.
210 Rothstein, supra note 12, at 5.
211 Gostin, Lawrence O. et al., Is the United States Prepared for Ebola?, 312 J. Am. Med. Ass’n 2497, 2497 (2014)Google Scholar (The importance of coordination is recognized in the fact that the Pandemic and All-Hazards Preparedness Act was passed, and reauthorized in 2013, to ensure effective coordination between federal, state, and local health departments during disasters.).
212 See generally Rutkow, Lainie, An Analysis of State Public Health Emergency Declarations, 104 Am. J. Pub. Health 1601 (2014)Google Scholar.
213 Gonsalves & Staley, supra note 87, at 2348; see also Rothstein, supra note 12, at 5 (discussing how “interstate variations” tend to “confuse the public”); Sapsin, Jason W. et al., SARS and International Legal Preparedness, 77 Temple L. Rev. 155, 167 (2004)Google Scholar (quoting U.S. General Accounting Office, GAO-03-373, Bioterrorism Preparedness Varied Across State and Local Jurisdictions: Report to Congressional Committees 5 (Apr. 7, 2003), http://www.gao.gov/new.items/d03373.pdf [http://perma.cc/2R92-S6CE]) (during the SARS outbreak “states lacked sufficient coordination with their neighboring states”). To facilitate collaboration, it is also important that federal, state, and local laws be examined carefully to ensure they do not impede efficient responses to emergencies. See Rutkow, supra note 212, at 1601 (“This collaboration can be facilitated or impeded by laws at all levels of government.”). In fact, “the Institute of Medicine recently recommended that state and local governments review and modernize their laws … to [improve their ability] … to address contemporary challenges to population health.’” Rutkow, Lainie et al., The Public Health Workforce and Willingness to Respond to Emergencies: A 50-State Analysis of Potentially Influential Laws, 42 J.L. Med. & Ethics 64, 64 (2014)Google Scholar (quoting Institute of Medicine, For the Public’s Health: Revitalizing Law and Policy to Meet New Challenges 2 (2011), http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/2011/For-the-Publics-Health-Revitalizing-Law-and-Policy-to-Meet-New-Challenges/For%20the%20Publics%20Health%202011%20Report%20Brief.pdf [http://perma.cc/8L4V-K8SN]).
214 Rothstein, supra note 12, at 5.
215 Id.
216 See Hodge, supra note 10, at 364-67. Certainly some missteps by the CDC helped to fuel the fire by providing enabling politicians to point to mistakes as a justification for not following any of the agency’s guidance. See ACLU & GHJP, supra note 80, at 20-21.
217 Hodge, supra note 10, at 367.
218 Id. at 367 (finding that state officials do not have to follow CDC guidance outside of a federally-declared emergency or federal funding tied to adherence to federal conditions).
219 See Rothstein, supra note 12, at 5 (discussing the decentralized and fragmented system of public health responsibility and the counterproductive nature of ignoring CDC guidance). At the federal level alone, an infectious disease emergency can require efforts from the Department of Homeland Security, Department of Transportation, Customs and Border Protection, Food and Drug Administration, National Institutes of Health, and the Department of Defense, among others. Id. Often overlooked is the fact that the government’s ability to manage and disseminate accurate information is one of the best ways to manage the public response to a crisis. Annas, supra note 9, at 1181-82.
220 Mission, Role and Pledge, CDC (last updated Apr. 14, 2014), http://www.cdc.gov/about/organization/mission.htm [http://perma.cc/GSH8-3U88].
221 Hodge, supra note 10, at 360. There were even calls to close the U.S.-Mexico border, despite the fact that Mexico did not have any Ebola cases. ACLU & GHJP, supra note 80, at 22.
222 Gostin et al., supra note 211, at 2498.
223 Jordan et al., supra note 203, at 350-51.
224 Id. at 350–51; see also Gostin et al., supra note 211, at 2498 (explaining that “impeding the flow of [health care] workers and supplies … exacerbates” the problem because the only way to truly protect the spread of Ebola to other countries is to control the disease in West Africa).
225 Hodge, supra note 10, at 369-70. Part of the concern over this policy was the likelihood that fevers detected at the airport would be false-positives, resulting in unnecessary quarantine of individuals. Gostin et al., supra note 211, at 2498. Of course, this scenario came to fruition at least once, as the quarantine of Kaci Hickox demonstrated. See Jordan et al., supra note 203, at 350 (reiterating that Ms. Hickox never actually contracted Ebola). “[P]ublic health officials [who] are much more concerned with false negatives … than with false positives” can generate these types of unnecessary intrusions. Annas, supra note 9, at 1180. There is also a question as to whether screening procedures are the best use of limited resources given the potential for false-positives and the possibility that they drive the disease underground. Hodge, supra note 10, at 370.
226 See Jordan et al., supra note 203, at 344 (quoting Emory Medicine 1 (2014), http://emorymedicinemagazine.emory.edu/issues/2014/fall/print.pdf [http://perma.cc/L7S5-R5E6]) (internal quotation marks omitted) (quoting CDC Director Dr. Thomas Frieden).
227 See Hodge, supra note 10, at 357.
228 See Gostin, Politics, supra note 140, at 1099.
229 See Parmet, Sept. 11, supra note 208, at 207 (“[A]s the world has become more complex and interdependent, local efforts have increasingly appeared incapable of solving grave threats.”).
230 Parmet, J.S. Mill, supra note 2, at 220.
231 See supra text accompanying notes 24-29.
232 Parmet, AIDS, supra note 3, at 75.
233 Parmet, J.S. Mill, supra note 2, at 215.
234 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
235 See Jacobson v. Massachusetts, 197 U.S. 11, 27-31 (1905).
236 Marbury, 5 U.S. (1 Cranch) at 177.
237 Parmet, J.S. Mill, supra note 2, at 213.
238 Jew Ho v. Williamson, 103 F. 10, 23 (9th Cir. 1900).
239 Gonsalves & Staley, supra note 87, at 2349.
240 See Parmet, AIDS, supra note 3, at 66. This comingling of public health law and criminal law has been replicated in the HIV criminalization discussed earlier. See supra Part III.B.1. Though public health is the outward claim made for justification, an examination of science and evidence reveal what is more likely discriminatory practices against stigmatized populations. See supra Part III.B.1.
241 See Parmet, J.S. Mill, supra note 2, at 217.
242 See id. at 213-14.
243 City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 1011 (N.Y. Sup. Ct. 1995).
244 See Hodge, supra note 10, at 367. In comparison, in State v. Snow the statute required judicial approval prior to quarantine, enabling the court to reverse a state order of quarantine for tuberculosis and prevent the plaintiff from having to spend any time in an unwarranted quarantine. Parmet, AIDS, supra note 3, at 78. In many circumstances, allowing for judicial review prior to quarantining an individual fits within the requirement of least restrictive means to protect public health. Gonsalves & Staley, supra note 87, at 2349.
245 See Hickox Order, supra note 38, at 3.
246 ACLU & GHJP, supra note 80, at 28-29 (including both the compelled quarantine and many of the voluntary quarantines that were brought about through coercive measures).
247 See Gonsalves & Stanley, supra note 87, at 2349 (quoting Michael C. Dorf, Containing Ebola: Quarantine and the Constitution, Verdict (Oct. 8, 2014), https://verdict.justia.com/2014/10/08/containing-ebola-quarantine-constitution [http://perma.cc/YL7E-F3SK]) (quoting Professor Michael Dorf that “judicial review of government officials’ claims that a quarantine is necessary to protect public health should not be a mere rubber stamp”). The passive role so often played by courts belies the function they are already required to play in evaluating the procedural due process requirements of quarantine: “adequate written notice of the reason for detentions and the factual basis for it, the right to counsel and appointment of counsel if necessary, the right to present, cross-examine and confront witnesses, and the application of a clear and convincing standard of proof.” Parmet, J.S. Mill, supra note 2, at 215. Not surprisingly, some public health officials claim these protections are “burdensome and impractical” in many situations. Id.
248 See supra Part III.B.1.
249 Jew Ho v. Williamson, 103 F. 10, 17 (9th Cir. 1900) (quoting Mugler v. Kansas, 123 U.S. 623, 661 (1887)) (internal quotation marks omitted).
250 See Parmet, J.S. Mill, supra note 2, at 220.
251 See, e.g., Kraemer, John D. & Gostin, Lawrence O., Science, Politics, and Values: The Politicization of Professional Practice Guidelines, 301 J. Am. Med. Ass’n 665, 666 (2009)Google Scholar (“Science, for example, cannot resolve the never-ending debate over abortion in the United States.”).
252 See id. (discussing “the [tension] between … science and the normative function of value systems and political thought”).
253 Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).