PERSPECTIVE: APPLYING CONSTITUTIONAL PROTECTION FOR PUBLIC HEALTH MEASURES

An individual’s right to health, more specifically the right to medical care, is not protected by the Constitution of the United States. However, state governments are tasked with the responsibility to protect the health of a community as a whole. Under the Tenth Amendment to the Constitution of the United States, the powers not delegated to the federal government are reserved to the states. These implied powers include police powers. In Commonwealth v. Alger the term “police power” was defined as:

“the power. . . to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution . . .for the good and welfare of the Commonwealth [1].” The court further noted “[i]t is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise [for] there are many cases in which such a power is exercised by all well-ordered governments, and where its fitness is so obvious, that all well-regulated minds will regard it as reasonable.”

Fundamentally, the police power gives states the authority to enact and enforce regulations to protect the health, safety, and general welfare of each inhabitant. Aligning with this objective is the practice of public health. Public health is an interdisciplinary field defined as “the art and science of preventing disease, promoting health, and prolonging life through organized efforts of society.” The authority of a state to respond to a public health emergency is derived from the police powers reserved to them by the Tenth Amendment to the Constitution. Due to the global spread of SARS-CoV-2, several public health measures have been implemented to slow the spread of the virus. These measures include wearing a face mask in public and or social distancing, while some of these measures include imposing restrictions on public gatherings and or travel. Consequently, there has been discontent against complying with these public health measures citing an infringement of liberty interest in rejecting unwanted medical treatment. It becomes paramount to explore the boundaries between government authority and individual liberty rights during a public health emergency.

The Constitution imposes no obligation upon the government to protect public health; [i]nstead, the role of the Constitution is to empower government while, at the same time, limiting its ability to impinge upon individual interests [2]. The Commerce Clause gives Congress the power to regulate the channels and instrumentalities of interstate and foreign commerce. These channels include ships on waterways, cars on highways, and airplanes in airways. Under the Commerce Clause, the federal government derives its limited power to quarantine to prevent the spread of diseases from foreign countries [3]. The Public Health Service Act gives the U.S. Secretary of Health and Human Services the responsibility of preventing the introduction, transmission, or spread of diseases from foreign countries into the United States and its territories [4]. The Center for Disease Control and Prevention has the authority to detain, medically examine, or conditionally release anyone suspected of carrying a communicable disease [5]. Hence the federal government’s objective is to prevent the spread of diseases from foreign countries while the state government’s objective is to control the spread of diseases within their respective state.

Judicial review of state laws determines whether the government has overstepped in enforcing its public health authority. The rational basis test is the standard of judicial review applied to challenges of the Due Process Clause of the Fourteenth Amendment. When applying the rational basis test the challenger has the burden of proving a state law unconstitutional. The statute or ordinance must be rationally related to a legitimate government interest to pass the rational basis test. In rendering a decision, the Supreme Court tends to balance the interests of both parties. 

In Jacobson v Massachusetts, the Supreme Court rejected a Fourteenth Amendment Due Process challenge to a state law mandating smallpox vaccination by an inhabitant who argued the state law violated his liberty rights. During the smallpox epidemic, the Boston Health Department conducted a program of “thorough disinfection, [free] vaccination and revaccination of all persons who have been in contact or exposed . . ., and surveillance of [those suspected of exposure] for two weeks [6]. Nonetheless, “continued reports of smallpox cases led the Board of Health to order that ‘all the inhabitants of this city who have not been successfully vaccinated since January 1, 1897, be vaccinated, or revaccinated forthwith [7]‘. ” As a result, this mandatory vaccination law went into effect, and those refusing to comply incurred a penalty.

The Court in Jacobson v. Massachusetts noted:

“The constitution of Massachusetts adopted in 1780 laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for “the common good,” and that government is instituted “for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor or private interests of any one man, family or class of men [8].” Further reasoning, “. . .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; [t]here are manifold restraints to which every person is necessarily subject for the common good [9].”

Ultimately, the Court ruled that the state of Massachusetts acted constitutionally within its police powers by implementing a mandatory vaccination law during an epidemic to protect the health and safety of the public and that Jacobson’s liberty interest must give way to the “common good.” As such, the balance of interests tilted in favor of the state’s public health authority. Considering the current vaccination efforts against SARS-CoV-2 and its emerging variants, the holding in Jacobson v. Massachusetts reflects the sentiment shared by many people today of giving way to the common good by getting vaccinated.

[1] Commonwealth v.  Alger, 61 (1851).

[2] Parmet W. “Health Care and the Constitution:  Public Health and the role of the State in the Framing Era”, 20 Hastings Const. L.Q. 267 (1993).  

[3] Centers for Disease Control. Legal Authorities for Isolation & Quarantine. 19 Mar. 2021:

[4] 42 U.S. Code § 264(a).  

[5] Centers for Disease Control. Legal Authorities for Isolation & Mar. 2021:

[6] Albert, M., Ostheimer, K., Breman, J. “The Last Smallpox Epidemic in Boston and the Vaccination Controversy, 1901-1903” N Engl J Med 2001; 344(5). 

[7] Ibid.

[8] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[9] Id.