Protecting the Community by Limiting Rights

The spread of infectious disease can wreak havoc on a society’s organization and economy.  For example, the economic impact of a flu pandemic in the US would be at minimum $71 billion. [1]  It follows that in order to ensure a society’s function and economy, the public must be protected from infectious disease.  However, defensive measures, and the extent to which public health can use them, are debatable issues.

When health officials think an infectious disease is present in a population, they can either quarantine or isolate individuals.  Though in everyday terms quarantine and isolate seem interchangeable, they are actually distinct.  Quarantine applies to those who have been exposed to an infectious disease but are not yet sick; isolation applies to those who are already sick.

For example, if during a flight someone has a particularly contagious infectious disease, then those around him would be quarantined (probably asked to stay indoors, treated and observed for early signs of illness.)  The sick person would be isolated and given special care, and his caregivers would be protected to prevent infection by the disease.  In general, the idea with quarantine and isolation is to “prevent further potential spread of the illness.”[2]  However, these methods require restricting the freedoms of people, putting the safety of the community above freedoms of an individual.

What becomes hot debate, then, is who has the power to decide whether an individual’s freedoms should be restricted (or whether this individual should be quarantined.)  The legislative branch dictates laws, and public health law is warranted under the police power of a state, which must take measures to protect the general welfare and health of the state.  Public health laws set up agencies that make regulations to achieve a well and healthy state; these regulations have the force of law.

Sometimes these regulations state that an infected person must be quarantined and isolated from society.  The health agency, doctors and the patient are involved in deciding whether such actions must be taken.  However, it is complex when one considers questions such as to where? and is this necessary to protect public health?, questions that could involve judicial review.  An example is the 1909 case Kirk v. Board of Health, in which Miss Kirk, a sufferer of leprosy, fought the board (the agency) that ordered her to vacate her home and temporarily move into a “pesthouse,” awaiting construction of a “comfortable cottage outside of the city” for her.

It was decided that the pesthouse was a health hazard in itself, and that “even temporary isolation…would be a serious affliction and peril to [Miss Kirk].”  Instead, the court preferred to wait for the cottage to be built.  The court also addressed the necessity of sending Miss Kirk to the pesthouse.  Since Miss Kirk’s form of leprosy was found to be hardly dangerous, the court deemed the pesthouse as an unnecessary measure.  So, even though public health laws guarantee the health of a state, and agencies go about to ensure these laws are met, courts can become involved in checking to make sure agency actions are rational.

I feel that judicial review, given accurate and adequate evidence, should balance the individual’s rights against the community’s rights.  The only exception would be when a disease is clearly contagious/dangerous and requires immediate action.  This would favor the community’s rights in the worst-case situation; this is exactly what is needed because in a worst-case situation, one mistake could be deadly for the community.