Health Versus Liberty?

We're public health people. We've chosen to devote our careers to protecting and enhancing the well-being of populations. For some of us, this means looking through microscopes; others collect and analyze data; and some seek change by formulating policy. But whatever our method, we place among our highest values the health of people.

Let's recognize, however, that we are a self-selected group not representative of the population as a whole. Each of our neighbors has different priorities in his or her own pantheon of values. For some, wealth reigns; others might glorify wisdom as the highest value; and, many will cherish liberty most dearly over health or safety. (After all, children are taught to respect "Give me liberty or give me death" as an essential American value.)

But sometimes, values like health and liberty can clash. The history of public health law in the United States is a never-ending attempt to balance the needs of public health with the freedoms of individuals. Almost a century ago, the U.S. Supreme Court wrestled with the issue of mandatory smallpox vaccination in the case of Jacobson v. Massachusetts. Henning Jacobson argued that the Constitution protected him from unwanted bodily invasions such as compulsory vaccination. The Court disagreed, finding instead that the police powers of states authorize reasonable regulations for the protection of public health and that:

"...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. There are manifold restraints to which every person is necessarily subject for the common good."

Since that 1905 decision, the rights of individuals generally have taken on greater weight. Privacy, a liberty found by the courts to be present among the shadows of the Bill of Rights, now protects individuals' interests in making highly personal decisions about topics such as procreation and the confidentiality of certain types of personal information. Efforts to protect and enhance the public's health need to be respectful of these rights; undue interference with personal liberties by laws designed to protect the public's health can render those laws unconstitutional.

Enter bioterrorism. Does the threat of a public health catastrophe, such as the resurgence of smallpox against which the public is presently unprotected, warrant the consideration of measures that otherwise might be considered unduly restrictive? Soon after Sept. 11, the School's Center for Law and the Public's Health was asked by the federal Centers for Disease Control and Prevention to prepare a model law that delineates the emergency health powers states would need during such a public health catastrophe. 

In crafting the model law, the protection of individuals' freedoms and dignity was of enormous importance to us, while we also recognized the need for health authorities to be able to quarantine or isolate individuals, seize property, and perform other acts that are basically antithetical to individuals' freedoms. Balancing these interests and building liberty safeguards into the exercise of extraordinary powers were great challenges and remain so.

Legislators and judges, whose responsibility it is to ultimately select the correct policy balance between the common good and personal liberties, will struggle, as we have, with strongly voiced opinions of persons having competing values. This struggle is at the heart of public health. Some within public health have argued that our professional commitment is limited to reducing morbidity and mortality in populations. But if instead, our commitment is seen as ensuring and enhancing the well-being of populations, then the preservation of personal liberties must be a balancing factor in efforts to interrupt the transmission of a disease.