Public 8

115

Regulation of persons and businesses is a staple of public health prac- tice.1 Health offi cials have historically exercised powers to test, vacci- nate, physically examine, treat, isolate, and quarantine. With the epide- miologic transition to noncommunicable diseases and injuries as the primary drivers of premature death and disability, public health offi cials also regulate to reduce the impact of legal but harmful products like tobacco, alcohol, unhealthy foods and beverages, and fi rearms. Govern- ment agencies also license health care providers, inspect food establish- ments, approve pharmaceuticals, monitor occupational health and safety, control pollutants, and abate nuisances. Regulation may not be

chapter four

Constitutional Limits on the Exercise of Public Health Powers Safeguarding Individual Rights and Freedoms

The very existence of government presupposes the right of the sovereign power to prescribe regulations demanded by the general welfare for the common protection of all. This principle inheres in the very nature of the social compact. [This] power, as expressed by Taney, C.J., “inherent in every sovereignty, the power to govern men and things,” is not, however, uncontrollable or despotic authority, subject to no limitation, exercisable with or without reason. . . . [The constitutional guaranty] was designed for the protection of personal and private rights against encroachments by the legislative body . . . as held and understood when the Constitution was adopted.

— John A. Andrews, New York v. Budd, 1889

C o p y r i g h t 2 0 1 6 . U n i v e r s i t y o f C a l i f o r n i a P r e s s .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 10/6/2022 8:06 AM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS AN: 1134865 ; Lawrence O. Gostin, Lindsay F. Wiley.; Public Health Law : Power, Duty, Restraint Account: s4264928.main.eds

116 | Legal Foundations of Public Health

the preferred strategy for ameliorating all health threats; education and incentives can be eff ective in many contexts. Nevertheless, the legal basis of regulatory power and the trade-off s between personal freedom and the common good remain core concerns of public health law.

The previous chapter examined the broad powers of government to act for the public good and structural constraints on government action aris- ing from federalism and separation of powers. This chapter examines lim- its on government action derived from individual rights. Under what cir- cumstances may the government interfere with a person’s autonomy, privacy, liberty, or property to achieve a healthier and safer population? Additionally, to what extent do corporate rights—such as freedom of expression and religion—limit public health regulation? We begin with a discussion of the Bill of Rights, noting the major provisions relevant to public health and examining the doctrines of incorporation and state action. Next, we turn to two early-twentieth-century cases with enduring signifi cance to public health law—Jacobson and Lochner. Finally, we examine limits on public health powers in the modern constitutional era. Some individual rights issues are set aside for discussion in subsequent chapters, including the Takings Clause (chapter 6) and the Second Amend- ment (chapter 13). Here, we focus on issues with cross-cutting signifi cance to public health: procedural due process, substantive due process, equal protection, freedom of expression, and freedom of religion.

public health and the bill of rights

As court decisions on gun control, vaccination, quarantine, tobacco warn- ing labels, and countless other issues demonstrate, understanding the need for restraints on government power is crucial to public health governance. The states ratifi ed the Bill of Rights, the fi rst ten amendments to the Con- stitution, in 1791. The fi rst eight amendments guarantee certain funda- mental rights and freedoms.2 Table 4.1 presents selected public health issues with respect to the Bill of Rights and summarizes illustrative cases.3

Incorporation Doctrine and Public Health

The Bill of Rights is directed to the federal government, not the states.4 In a series of cases beginning in the 1920s, the Supreme Court has held that the Fourteenth Amendment, ratifi ed shortly after the Civil War and directed to the states, “incorporates” most of the fi rst eight amend- ments, making them applicable to the states and their local government

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table 4.1 public health and the bill of rights

Selected public health issues Selected public health cases

First Amendment: Freedom of religion, speech, press, assembly, petition Religious objection to vaccination Workman: upholding vaccination mandate

in the absence of religious exemptiona

Advertising restrictions (e.g., for cigarettes and alcoholic beverages)

Lorillard Tobacco Co.: fi nding restrictions on tobacco advertising within one

thousand feet of schools and playgrounds unconstitutionalb

Second Amendment: The right to keep and bear arms Gun control legislation Heller: fi nding ban on handgun possession

unconstitutionalc

Fourth Amendment: Freedom from unreasonable search and seizure Inspection of premises/Administrative searches

Dewey: upholding warrantless mine inspections where statutory standards

provided “constitutionally adequate substitute for a warrant”d

Compulsory testing and screening (e.g., drug, alcohol, and HIV testing)

Skinner: upholding drug tests for employees involved in train accidentse

Law enforcement access to public health surveillance data

Oregon Prescription Drug Monitoring Program: fi nding that a warrant is

required for DEA access to prescription monitoring program dataf

Fifth Amendment: Due process, equal protection of the law, and “just compensation” for private property taken for public use

Public health regulation that deprives a person of liberty or property must

provide procedural due process

Adalberto M.: requiring fair procedures for quarantineg

Public health regulation must not be arbitrary or discriminatory

Jacobson: fi nding that compulsory vaccination is a legitimate use of state’s

police powerh

Just compensation for land-use restrictions for environmental and

other public health purposes

Lucas: fi nding that a landowner is entitled to “just compensation” for environmental

land-use restrictions that deprived land of all valuei

a Workman v. Mingo Cnty. Bd. of Education, 419 F. App’x 348 (4th Cir. 2011). See chapter 10. b Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). See chapter 12. c District of Columbia v. Heller, 554 U.S. 570 (2008). See chapter 13. d Donovan v. Dewey, 452 U.S. 594, 603 (1981). See chapter 5. e Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 613–14 (1989). See chapter 10. f Oregon Prescription Drug Monitoring Program v. DEA, 998 F.Supp. 2d 957 (D. Or. 2014). See chap- ter 9.

g Levin v. Adalberto M., 156 Cal. App. 4th 288 (Cal. App. 2007). See chapter 11. h Jacobson v. Massachusetts, 197 U.S. 11 (1905). See chapter 10. i Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). See chapter 6.

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subsidiaries).5 It also provides for equal protection under the law, which has in turn been incorporated into the Fifth Amendment (making it applicable to the federal government).6

For most of the nation’s history the Second Amendment was con- spicuously absent from the list of incorporated rights: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In 2010, how- ever, the Supreme Court reversed its earlier position, holding that the Second Amendment binds states and localities.7 Two years earlier (in a ruling directed at the federal government) the Court held that individu- als have a constitutional right to keep loaded fi rearms in the home for lawful purposes (see chapter 13).8

The Public/Private Distinction in Public Health

The Constitution prohibits government, at every level, from invading cer- tain fundamental rights and freedoms. Any affi rmative measure taken by government constitutes “state action”: for example, public health statutes enacted by the legislature, regulations issued by the health department, and nuisance abatements adjudicated through the courts. But the Consti- tution does not constrain private conduct, however discriminatory or wrongful.9 The state action doctrine may at fi rst appear straightforward. However, as the following issues illustrate, the activities of government, private (for-profi t businesses and nonprofi t organizations), and commu- nity actors are frequently intertwined in public health; it can be diffi cult to separate public from private action.10

Offi cial State Acts by Health Care Professionals

Health care professionals who are employed by the government and act in an offi cial capacity are “state actors.”11 Consequently, professionals who work in prisons or state mental hospitals are bound by the Consti- tution and may be liable for deliberate indiff erence to the serious medi- cal needs of a prisoner or detainee, in violation of the Eighth Amend- ment’s prohibition on cruel and unusual punishment.12

Licensed, Inspected, or Regulated Private Entities

Private individuals and businesses that are subject to government licens- ing, inspection, or regulation are not “state actors.”13 A regulatory

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scheme, “however detailed it may be in some particulars,” does not, by itself, invoke the state-action doctrine.14 There may be no state action, for example, if a licensed, inspected, or regulated entity discriminates on grounds of race or sex15 or fails to provide fair procedural protec- tions.16 However, private businesses (including hospitals, doctors’ offi ces, restaurants, shops, and hotels) that off er their services to the public may be governed by statutory prohibitions on discrimination.

Organizations that Receive Government Funding

The Supreme Court rarely fi nds state action based solely on government funding, even if subsidies are substantial: “Acts of . . . private contrac- tors do not become acts of the government by reason of their signifi cant or even total engagement in performing public contracts.”17 Thus, pri- vate health care providers, businesses, researchers, and community organizations that are funded by public health agencies are not bound to respect constitutional rights, though their receipt of federal funds may subject them to antidiscrimination statutes.

Private Conduct Authorized by Law

To what extent is there state action if the government authorizes or empowers a private entity to cause harm? The test used by the Supreme Court is “whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor.”18 Additionally, a state is responsible for a private party’s violation of constitutional rights when it enacts and enforces a law “requiring” violation of those rights, “com- pelling” a discriminatory act, or “commanding” a particular result.19 The U.S. Court of Appeals for the Fourth Circuit, for example, held that the termination of a doctor’s privileges by a hospital’s board of trustees did not constitute state action. Although the board comprised members selected exclusively by state offi cials, the court found an insuffi cient nexus because the state did not exercise control over the board’s deci- sions.20 Similarly, the Third Circuit held that a federal privacy rule authorizing “routine uses” of medical records for “treatment, payment, and health care operations” does not involve state action because the privacy rule does not compel or enhance the power of private entities to disclose private health information without the patient’s consent.21 The mere fact that a private party changes its behavior in response to the law does not transform private action into state action.

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Privatization of Public Functions

Delegation of some legislative, regulatory, or judicial powers to the pri- vate sector (e.g., granting private entities police power authority to quar- antine, compel medical treatment, or regulate businesses) might be impermissible on separation of powers or individual rights grounds.22 Yet private actors do perform many important functions that have his- torically been the province of government. The Supreme Court fi nds state action only where there is such a “close nexus” between the state and private action that it “may be fairly treated as that of the State itself.”23 The Court has held, for example, that education24 and other important public services,25 when operated by private entities, are not public functions. Similarly, operators and employees of privately run federal prisons have been found to be immune from litigation for consti- tutional violations because they do not act “under color of federal law.”26

The acceptance by courts of privatized prisons27 and other entities indicates that there is ample scope for delegation of a broad range of public health services to the private sector.28 In 2010, for example, Con- gress delegated power to the U.S. Preventive Services Task Force (an independent, nongovernmental panel of national experts in prevention and evidence-based medicine) to determine which preventive services must be covered by private health plans without cost sharing (see chap- ter 8). In 2012, the City of Detroit, facing an extraordinary budget crisis and takeover by the state government, privatized its entire health department, reorganizing it into a nonprofi t agency independent of the city.29 The eff ects of this unprecedented move on the health and consti- tutional rights of the city’s residents have yet to be assessed. If faced with an infectious disease outbreak, for example, may the nonprofi t agency, acting as the city’s health department, order quarantine or com- pel medical treatment?

constitutional limits on the police power in the early twentieth century: jacobson and lochner

When government acts for the welfare of the community, it must abide by constitutional constraints. What exactly are the constitutional limits on public health activities? This apparently simple question requires a complex response. The starting point is the early twentieth-century understanding of the Due Process Clause found in the Fifth Amendment

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(applicable to the federal government) and the Fourteenth Amendment (applicable to the states) and, in particular, the foundational Supreme Court case of Jacobson v. Massachusetts (1905).30

Jacobson is widely agreed to be the most important judicial decision in public health.31 Why? Is it because of the Supreme Court’s deference to public health decision making? Is it because the Court enunciated a framework for the protection of individual liberties that persists today? Perhaps it is because Jacobson was decided during the same term as Lochner v. New York—the most infamous Supreme Court case of its era.32 If the Court’s decision in Lochner, striking down reasonable eco- nomic regulation, exemplifi ed judicial activism, then Jacobson was a paradigm of judicial restraint in deference to the police power, a vital precept of state sovereignty. There is a further question that deserves attention: would Jacobson be decided the same way today? What is the enduring meaning of this famous decision?33

Jacobson in Historical Context: The Immunization Debates The contention that compulsory vaccination is an infraction of personal liberty and an unconstitutional interference with the right of the individual to have the smallpox if he wants it, and to communi- cate it to others, has been ended [by the U.S. Supreme Court]. . . . [This] should end the useful life of the societies of cranks formed to resist the operation of laws relative to vaccination. Their occupation is gone.

— Editorial, New York Times, February 22, 1905

Jacobson v. Massachusetts was decided a few years after a major outbreak of smallpox in Boston, from 1901 to 1903, that resulted in 1596 cases and 270 deaths.34 The outbreak reignited the smallpox immunization debate, with plenty of hyperbole on both sides. Antivaccinationists launched a “scathing attack,” claiming that compulsory vaccination was “the greatest crime of the age;” that it “slaughters tens of thousands of innocent chil- dren;” and that it was “more important than the slavery question, because it is debilitating the whole human race.”35 The antivaccinationists gave notice that compulsion by the state “will cause a riot.”36 The response of the mainstream press was equally shrill, characterizing the debate as “a confl ict between intelligence and ignorance, civilization and barbarism.”37 The New York Times referred to antivaccinationists as a “familiar species of crank,” whose arguments are “absurdly fallacious.”38

Prior to Jacobson, the state courts were heavily engaged in the vaccina- tion controversy, and their judgments were markedly deferential to health

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agencies: “Whether vaccination is or is not effi cacious in the prevention of smallpox is a question with which the courts declare they have no con- cern.”39 The courts recognized the state’s authority to delegate police pow- ers to health agencies or boards of health with scientifi c expertise.40 A bona fi de objection to vaccination was not a suffi cient excuse for noncom- pliance; however, a person could be exempted because of a physical condi- tion posing a particular risk of adverse eff ects.41 The states compelled vac- cination indirectly, by imposing penalties, denying unvaccinated children admission to school, or quarantining. Thus the courts generally avoided ruling on the constitutionality of compelling vaccination by threat of force.

It was in this historical context that Massachusetts enacted a law empowering municipal boards of health to require the vaccination of inhabitants if it was deemed necessary for the public’s health or safety. The Cambridge Board of Health, under authority of this statute, adopted a regulation ordering that all inhabitants of the city be vaccinated. The Reverend Henning Jacobson, who refused the vaccination, was con- victed by the trial court and sentenced to pay a fi ne of fi ve dollars. The Massachusetts Supreme Judicial Court upheld the conviction, and Jacobson appealed to the U.S. Supreme Court. Jacobson’s legal brief asserted that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every free- man to care for his own body and health in such way as to him seems best.”42 His was a classic claim in favor of a laissez-faire society and the natural rights of persons to bodily integrity and decisional privacy. He grounded this claim in the rights to due process and equal protection secured by the Fourteenth Amendment, the modern understanding of which is discussed in detail below.

Jacobson was an iconic case reconciling individual rights with the collective good, and the Court’s resolution continues to reverberate in modern times. Justice John Marshall Harlan’s opinion for the Court has many facets. Relying on social compact theory, the Court strongly sup- ported the police powers and deferred to public health agencies. Relying on a theory of limited government, it set standards to safeguard indi- vidual freedoms.

Social Compact Theory: The Police Power and Public Health Deference

In early American jurisprudence, before Jacobson, the judiciary staunchly defended the exercise of police powers. The judiciary even periodically

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Constitutional Limits | 123

photo 4.2. This engraving depicts public vaccination in Jersey City, New Jersey during a smallpox scare in 1881. In 1905, in Jacobson v. Massachusetts, the Supreme Court found compulsory smallpox vaccination constitutional. Courtesy of the National Library of Medicine.

suggested that public health regulation was immune from constitutional review,43 expressing the notion that “where the police power is set in motion in its proper sphere, the courts have no jurisdiction to stay the arm of the legislative branch.”44 The core issue, of course, was to under- stand what was meant by the “proper legislative sphere,” for it was not

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supposed, at least since the enactment of the Fourteenth Amendment in 1868, that government could act in an arbitrary manner free from judi- cial control.45

In Jacobson, the Court’s use of social compact theory to support an expansive vision of police powers was unmistakable. Justice Harlan pre- ferred a community-oriented philosophy wherein citizens have duties to one another and to society as a whole:

The liberty secured by the Constitution . . . does not import an absolute right in each person to be . . . wholly freed from restraint. . . . On any other basis organized society could not exist with safety to its members. . . . [The Mas- sachusetts Constitution] laid down as a fundamental . . . 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 protection, safety, pros- perity and happiness of the people, and not for the profi t, honor or private interests of any one man.”46

The Court’s opinion is fi lled with illustrations of the breadth of police powers, ranging from sanitary laws and animal control to quarantine.

A primary legacy of Jacobson, then, surely is its defense of social welfare theory and police power regulation. The Supreme Court during the Jacobson era upheld numerous public health activities including the regulation of food,47 milk,48 and waste disposal.49 Although its Pro- gressive Era appeal to collective interests no longer has the currency it once did, Jacobson has been frequently cited by the Supreme Court, typically in defense of the police power and deference to the legislature on matters of policy and science.

Theory of Limited Government: Safeguarding Individual Liberty

Jacobson’s social compact theory was in tension with its notion of lim- ited government. Beyond its passive acceptance of legislative discretion in public health, however, was the Court’s fi rst systematic statement of individual rights as limitations imposed on government. Jacobson estab- lished a fl oor of constitutional protection. It deemed compulsory powers constitutionally permissible only if they are exercised in conformity with fi ve standards, which we shall call public health necessity, reasonable means, proportionality, harm avoidance, and fairness. These standards, while permissive of public health intervention, nevertheless require a deliberative governmental process to safeguard liberty.

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Constitutional Limits | 125

Public Health Necessity

Public health powers are exercised under the theory that they are neces- sary to prevent an avoidable harm. In Jacobson, Justice Harlan insisted that police powers must be based on the “necessity of the case” and could not be exercised in “an arbitrary, unreasonable manner” or go “beyond what was reasonably required for the safety of the public.”50 Early meanings of the term necessity are consistent with the broad exer- cise of police powers.51 To justify the use of compulsion, government must act only in the face of a demonstrable health threat. The standard of public health necessity requires, at a minimum, that the subject of the compulsory intervention must actually pose a threat to the community, though the Court indicated that it would defer to any reasonable deter- mination of the legislature in this regard.52

Reasonable Means

Under the necessity standard, government may institute compulsory measures only in response to a demonstrable threat. The methods used, moreover, must be designed to prevent or ameliorate that threat. The Jacobson Court adopted a means-and-ends test that required the demonstration of a reasonable relationship between the interven- tion and the achievement of a legitimate governmental objective. Even if the objective of the legislature is valid and benefi cent, the methods adopted must have a “real or substantial relation” to protec- tion of the public health and cannot be “a plain, palpable invasion of rights.”53

Proportionality

The public health objective may be valid in the sense that a risk to the public exists, and the means may be reasonably likely to mitigate that risk. A regulation is nevertheless unconstitutional if the human burden imposed is wholly disproportionate to the expected benefi t. “The police power of a State,” wrote Justice Harlan, “may be exerted in such cir- cumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.”54 Public health authorities have a constitutional responsi- bility not to overreach in ways that unnecessarily invade personal spheres of autonomy. This suggests the need to reasonably balance the

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126 | Legal Foundations of Public Health

public good to be achieved against the degree of personal invasion. If the intervention is gratuitously onerous or unfair, it may overstep con- stitutional boundaries.

Harm Avoidance

Those who pose a risk to the community can be required to submit to compulsory measures for the common good. The control measure itself, however, should not pose a health risk to its subject. Justice Harlan emphasized that Henning Jacobson was a “fi t subject” for smallpox vaccination, but asserted that requiring a person to be immunized who would be harmed is “cruel and inhuman in the last degree.”55 If there had been evidence that the vaccination would seriously impair Jacob- son’s health, he might have prevailed in this historic case.56 Jacobson- era cases reiterate the theme that public health actions must not harm subjects. For example, in Jew Ho v. Williamson (1900), a federal court struck down a quarantine of a district in San Francisco in part because it created conditions likely to spread bubonic plague.57 Similarly, courts required safe and habitable environments for persons subject to isola- tion on the theory that public health powers are designed to promote well-being, not to punish the individual.58

Fairness

The facts in Jacobson did not require the Supreme Court to enunciate a standard of fairness under the Equal Protection Clause of the Four- teenth Amendment because the vaccination requirement was generally applicable to all inhabitants of Cambridge. Nevertheless, the federal courts had already created such a standard in Jew Ho v. Williamson. By enforcing a quarantine exclusively against Chinese Americans, the fed- eral district court said, health authorities had acted with an “evil eye and an unequal hand.”59

Judicial Deference in Jacobson

In balancing individual rights against the common good, the Court in Jacobson relied on separation of powers and federalism to stake out a deferential stance toward the legislative branch and the states. The Court’s virtually unquestioning acceptance of legislative fi ndings of sci- entifi c fact was grounded in separation of powers. Quoting the New

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Constitutional Limits | 127

York Court of Appeals (which had recently upheld compulsory vaccina- tion as a condition of school entry),60 Justice Harlan said:

The legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their cho- sen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would confl ict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government.61

Under a theory of democracy, Justice Harlan would grant considerable leeway to the elected branch of government to formulate policy. The Supreme Court, relying on principles of federalism, also asserted the primacy of state over federal authority in the realm of public health. “It is of the last importance,” wrote Justice Harlan, that the judiciary “should not invade the domain of local authority except when it is plainly necessary. . . . The safety and the health of the people of Mas- sachusetts are, in the fi rst instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government.”62

Lochner v. New York: The Antithesis of Judicial Deference

Jacobson v. Massachusetts was decided in the same term as Lochner v. New York—the beginning of the so-called Lochner era in constitutional law (1905–37).63 In Lochner, a 5–4 majority of the Supreme Court held that a limitation on the hours that bakers could work violated the free- dom of contract. This so-called economic due process argument points to the Fifth and Fourteenth Amendments of the U.S. Constitution, which prohibit the federal government and the states from depriving any “person” (including corporations)64 of “life, liberty, or property, without due process of law.”65 Justice Harlan, in a ringing dissent, pro- fessed that the New York statute was expressly for the public’s health: “Labor in excess of sixty hours during a week . . . may endanger the health of those who thus labor.”66 Quoting public health treatises, Har- lan observed that “during periods of epidemic diseases the bakers are generally the fi rst to succumb to disease, and the number swept away during such periods far exceeds the number of other crafts.”67

The Lochner era posed deep concerns for those who realized that much of what public health does interferes with economic freedoms

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involving contracts, business relationships, the use of property, and the practice of trades and professions. Lochner, in the words of Justice Har- lan’s dissent, “would seriously cripple the inherent power of the states to care for the lives, health, and well-being of their citizens.”68 Indeed, over the next three decades, the Supreme Court struck down important health and social legislation protecting trade unions,69 restricting child labor,70 setting minimum wages for women,71 protecting consumers from prod- ucts that posed health risks,72 and licensing or regulating businesses.73

By the time of the New Deal, those who believed that contractual freedom was far from unfettered, and that economic transactions were naturally constrained by unequal wealth and power, challenged the lais- sez-faire philosophy that undergirded Lochnerism.74 People looked to government to ensure the public’s health and welfare, and social and

photo 4.3. Lewis Wickes Hine, Child Laborers at Bibb Mill No. 1 in Macon, Georgia, 1909. Child labor was common in the early twentieth century. This and other photographs were taken by Hine to aid lobbying eff orts of the National Child Labor Committee (NCLC). Of this photo, Hine wrote: “Some boys and girls were so small they had to climb up on the spinning frame to mend broken threads and to put back the empty bobbins.” NCLC’s eff orts led to the 1916 adoption of the fi rst federal law prohibiting the interstate sale of goods produced with child labor. The Supreme Court struck down the law in Hammer v. Dagenhart, 247 U.S. 251 (1918). This decision was overturned—along with many other Lochner-era decisions—during the New Deal era.

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box 4.1 Economic Liberty from the Founding Era to the Modern Deregulatory Movement

The Lochner era, from 1905 to 1937, was a time when the Supreme Court prized economic freedoms and aggressively invalidated social and economic regulations, many of which were aimed at protecting workers’ safety (see chapter 13). The major fl aw of Lochner’s eco- nomic due process argument was that it permitted courts to supplant their view for that of the legislature as to what is in the best interests of society and the economy. Since 1937, the Court has granted police power regulation a strong presumption of validity, even if it interferes with economic and commercial life (see chapter 3).

Modern conservative scholars have sought to resurrect the Lochner doctrine.1 As Judge Richard Posner remarked in 1985, “there is a movement afoot (among scholars, not as yet among judges) to make the majority opinion in Lochner the centerpiece of a new activist juris- prudence.”2 Conservative scholars argue that economic liberties are important in the constitutional design and deserve protection from commercial regulation.3 They claim that individuals have constitu- tionally protected rights to possess, use, and transfer private property; engage in business; and pursue their occupations as they see fi t.4

This movement, which adopts the promarket, antiregulation phi- losophy underlying Lochner, has gained infl uence in political and aca- demic circles.5 The judiciary has repudiated the jurisprudence of Loch- ner, and for good reason. It is for democratically elected assemblies to strike a balance between a well-ordered, safe society and the property rights of individuals. Nonetheless, some commentators have linked current judicial movements such as new federalism and expanding use of First Amendment protections for corporations as a shield against social and economic regulation to the fundamental values articulated in Lochner.

1. David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Pro- gressive Reform (Chicago: University of Chicago Press, 2011); Robert G. McCloskey, “Eco- nomic Due Process and the Supreme Court: An Exhumation and Reburial,” Supreme Court Review, 1962 (1962): 34–62, arguing that there are strong reasons for reviving economic due process but that the Supreme Court should not do so for reasons of judicial economy.

2. Richard Posner, The Federal Courts: Crisis and Reform (Cambridge, MA: Harvard University Press, 1985): 209 n. 25.

3. Bernard Siegan, Economic Liberties and the Constitution, 2nd ed. (New Bruns- wick, NJ: Transaction, 2006).

4. Randy Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998).

5. Michael J. Phillips, “Another Look at Economic Substantive Due Process,” Wis- consin Law Review (1987): 265–324; David A. Strauss, “Why Was Lochner Wrong?” University of Chicago Law Review, 70 (2003): 373–86.

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economic equity. It was within this political context that the Supreme Court repudiated Lochner: “What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.”75 The post–New Deal period led to a resurgence of a permissive judicial approach to regulation, irrespective of its eff ects on commercial and business aff airs.76

Why have legal historians viewed Jacobson so favorably and Loch- ner so unfavorably? Lochner represented an unwarranted judicial inter- ference with democratic control over the economy to safeguard the public’s health and safety. Lochner was a form of judicial activism that was unreceptive to protective and redistributive regulation. The Loch- ner Court mistakenly saw market ordering as a state of nature rather than a legal construct.77 Jacobson was the antithesis of Lochner, grant- ing democratically elected offi cials discretion to pursue innovative solu- tions to hard social problems.

The Enduring Meaning of Jacobson

Lochner has taken its place in the American constitutional “anticanon”— “consistently cited in Supreme Court opinions, in constitutional law case- books, and at confi rmation hearings as [a] prime example of weak con- stitutional analysis.”78 The enduring meaning of Jacobson is less clear. Modern Supreme Court jurisprudence is markedly diff erent from the def- erential tone of Jacobson and its embrace of the social compact. The Warren Court, in the context of the civil rights movement, transformed constitutional law, developing a tiered approach to due process and equal protection that placed a constitutional premium on the protection of civil rights and civil liberties. Would the outcome in Jacobson be the same if it were presented to the Court today? The answer is almost certainly yes, even if the style and reasoning of the opinion would diff er.

The validity of Jacobson as a sound modern precedent seems, at fi rst sight, obvious. The federal and state courts, including the U.S. Supreme Court,79 have repeatedly affi rmed its holding and reasoning, describing them as “settled” doctrine.80 The courts have upheld compulsory vac- cination in particular on numerous occasions.81

During the past several decades, the Supreme Court has recognized a constitutionally protected liberty interest in refusing unwanted medical treatment. The Court has recognized rights to bodily integrity in cases involving the rights of persons with terminal illness82 and mental disability.83 Outside the context of reproductive freedoms,84 however,

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the Court has not viewed bodily integrity as “fundamental.” Instead of applying heightened scrutiny, the Supreme Court balances a person’s liberty against state interests.85 In fact, where it adopts a balancing test, the Court usually sides with the state.86 The Court has held that health authorities may impose invasive forms of treatment, such as antipsy- chotic medication, if a person poses a danger to herself or others.87 The treatment must also be medically appropriate.88 The lower courts, using a similar harm-prevention theory, have upheld compulsory physical examination89 and treatment90 of persons with infectious diseases.

Jacobson merely began a debate about the appropriate boundaries of the police power that is still evolving today. Americans strongly support civil liberties, but they equally demand state protection of health and safety. The compulsory immunization controversy still swirls with regard to mandatory school vaccinations and vaccinations for anthrax and smallpox to counter bioterrorism. Despite considerable discord in public opinion, however, Jacobson endures as a reasoned formulation of the boundaries between individual and collective interests.

limits on public health powers in the modern constitutional era

Jacobson established a fl oor of constitutional protection for individual rights, including fi ve standards of judicial review: necessity, reasonable methods, proportionality, harm avoidance, and fairness. Arguably, these standards remain in the modern era, but the Supreme Court has since developed a far more elaborate system of constitutional adjudica- tion. Modern constitutional law is complicated, and the analysis of pub- lic health measures aff ecting personal autonomy, liberty, privacy, and property will unfold in subsequent chapters. Here, we provide a basic review of the major civil rights and liberties that cut across public health issues: due process (both substantive and procedural), equal protection, freedom of expression, free exercise of religion, and levels of scrutiny used by the Court to balance public goods with individual rights.

It will be obvious from the discussion of federalism in chapter 3 and the Jacobson and Lochner era in this chapter that the path toward more rigorous constitutional scrutiny of governmental action has been slow, cyclical, and politically charged. In response to the social and political movements of the 1960s, the Supreme Court, principally under Chief Justice Earl Warren, revitalized and strengthened the Court’s position on equality and civil liberties. The Warren Court set a liberal agenda that

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prized personal freedom and nondiscrimination and exhibited a healthy suspicion of government. The Burger and Rehnquist Courts, however, were less sympathetic to progressive constitutional construction. The Roberts Court has exhibited a probusiness, antiregulatory agenda, but it has also wrestled with bitter social and political controversies, such as health reform, same-sex marriage, national security, and data privacy.

Procedural Due Process

The Fifth and Fourteenth Amendments have identical provisions pro- hibiting federal and state governments, respectively, from depriving individuals of “life, liberty, or property, without due process of law.” The Due Process Clause has been read to impose two distinct obliga- tions: a procedural element requiring government to provide a fair process for individuals subject to state coercion, and a substantive element requiring government to provide a sound justifi cation for invading personal freedoms.91 Consider a state requirement to license physicians or inspect food establishments. These governmentally imposed conditions on the ability to practice a profession or to run a business meet the substantive part of the test if the state has a legitimate public health rationale (e.g., to assure the competent practice of medi- cine or the safe preparation of food). Actual decisions to deny or with- draw the license meet the procedural part of the test if the state aff ords professionals or businesses a reasonable opportunity to be heard.92

The procedural element of due process requires government to pro- vide a fair process before depriving a person of life, liberty, or property. The principal components of such a process are notice, a hearing, and an impartial decision maker. Aff ording individuals an opportunity to present their case is so essential to basic fairness that Europeans refer to procedural due process as “natural justice.” Procedural due process is important in many public health contexts, ranging from licenses and inspections of businesses to isolation and quarantine. This section explains property and liberty interests in the context of public health and briefl y discusses the kinds of procedures often required.

Property Interests

Health departments possess the statutory authority to take, destroy, or restrict property uses to prevent risks to the health or safety of the com- munity.93 Except in urgent cases,94 due process generally requires notice

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and an opportunity to be heard before the deprivation of a property interest.95 Deprivations of property interests, which trigger procedural due process, occur in a variety of health contexts: inspections of goods and buildings;96 licenses of health care professionals,97 hospitals and clin- ics,98 nursing homes,99 and restaurants;100 and hospital staff privileges101 (see chapter 5).

A “property interest” is more than an abstract need, desire, or unilat- eral expectation. The person must “have a legitimate claim of entitle- ment.”102 Certainly, an individual has an entitlement to the real or per- sonal property that she owns. Thornier questions include whether a person has an entitlement to a benefi t, a job, a professional license, a business permit, or even government protection against private violence, necessitat- ing procedural protections to ensure that the benefi t is not denied unjustly.

The Supreme Court, until the 1970s, limited property interests to cases in which the person had a legal right to a benefi t, and not a simple privi- lege. However, in Goldberg v. Kelly (1970), the Court abandoned the distinction between rights and privileges, holding that individuals have a property interest in the continued receipt of welfare benefi ts.103 While the Court has offi cially rejected the distinction between rights and privileges, demonstrating an entitlement can be diffi cult. Under the reasoning of Goldberg, an entitlement is measured by the importance of the interest to the person’s life: without welfare, for example, a person may not be able to obtain the necessities of life. The modern Court’s preferred approach is to examine whether the person has a legitimate claim of entitlement to the property interest based on an independent source such as state law.104

The Supreme Court has held that a benefi t is not a protected entitle- ment if government offi cials may grant or deny it at their discretion.105 In Castle Rock v. Gonzales, discussed in the last chapter, the Court found that police had “discretion” not to enforce a domestic violence restraining order, even though the order specifi cally declared, and a state statute commanded, that it must be enforced.106 The Court said that even if enforcement was “mandatory,” “it is by no means clear” that the individual has a “property interest” for the purposes of due process: “Such a right would not, of course, resemble any traditional conception of property,” wrote Justice Scalia.107

Liberty Interests

Government must provide procedural due process before depriving individuals of liberty.108 The Supreme Court broadly defi nes a “liberty

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interest” as “not merely freedom from bodily restraint, but also the right to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up chil- dren, to worship God . . . , and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.”109 Procedural due process is required in any case where public health authorities interfere with freedom of movement (e.g., isolation and quarantine; see chapter 11) or bodily integrity (e.g., compulsory physical examination and medical treatment; see chapter 10).

The Elements of Procedural Due Process

Fair procedures are constitutionally required if an individual or busi- ness suff ers a deprivation of property or liberty. However, this require- ment does not decide the question of exactly what kinds of procedures the government must provide. Due process is a fl exible concept that var- ies with the particular situation.

In deciding which procedures are required, courts balance several factors.110 First, the courts consider the nature of the private interests aff ected. The more intrusive or coercive the state intervention, the more rigorous the procedural safeguards. In cases of plenary deprivation of liberty,111 such as civil commitment of a person with mental illness112 or tuberculosis,113 the state must provide the full panoply of procedures— notice, counsel, impartial hearing, cross-examination, written decision, and appeal.

Second, the courts consider the risk of an erroneous deprivation of property or liberty and the probable value, if any, of additional or sub- stitute procedural safeguards. Here, the courts are concerned with pro- cedures as a means of protecting against erroneous decision making. If the court feels that an informal process is likely to lead to a “correct” result, it will not require procedural formalities that it regards as unnec- essary. In Parham v. J.R., “mature minors” were “voluntarily” admit- ted to a mental hospital by their parents, although the minors opposed the admission. The Supreme Court ruled that the hearing did not have to be formal or conducted by a court. Since juvenile admission was “essentially medical in character,” an independent review by hospital physicians was considered suffi cient to meet the requirements of due process.114

Third, the courts consider the fi scal and administrative burdens of providing additional procedures and the extent to which the govern-

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ment’s interests would be undermined by doing so. Most mental health or public health statutes permit an expedited form of due process in cases of emergency, sometimes allowing hearings to be conducted post- deprivation. Reduced due process is justifi ed by the fact that the state’s interests in rapid confi nement of persons posing an immediate risk of danger would be undermined by elaborate, time-consuming procedures.

Substantive Due Process

Through the substantive due-process doctrine, the judiciary has inter- preted the Fifth and Fourteenth Amendments as also placing limitations on the power of government to impose social and economic regulation. We have discussed the rise of this doctrine during the Lochner era. It was largely abandoned by the Court in the late 1930s but was rekindled as a tool for protecting “fundamental rights,” especially the right to privacy (see chapter 9), beginning in the 1960s. In 2015, the Court relied on the fundamental right to marriage protected by the Due Proc- ess Clause of the Fourteenth Amendment in holding that states must issue marriage licenses to same-sex couples and recognize same-sex marriages licensed by other states.115

The substantive due-process doctrine requires government to justify deprivations of life, liberty, or property with an adequate rationale.116 Depending on the level of judicial scrutiny applied, government action must be justifi ed by a legitimate, a substantial, or even a compelling public interest.117 The means must also be—at a minimum—rationally related to the government’s purpose. Another way of thinking about substantive due process is as a proscription against arbitrary and capri- cious government activity, regardless of whether a fundamental right is aff ected. So, too, the state must avoid regulation infl uenced by animos- ity toward a politically unpopular constituency. If government’s princi- pal purpose is to disadvantage a person or population, the “enactment [is] divorced from any factual context from which [the court] could discern a relationship to legitimate state interests.”118

Perhaps the most controversial aspect of the substantive due-process doctrine is the identifi cation of “unenumerated” rights that are not expressly guaranteed in the Constitution but are nonetheless fundamen- tal to liberty. The ongoing debate between those with an expansive and those with a restrictive view of due process is highly important in public health. Few public health measures directly infringe on a right or free- dom declared in the Bill of Rights. The Constitution, for example, does

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not explicitly mention bodily integrity, which is implicated in manda- tory testing and treatment, or privacy, which is implicated in public health surveillance, mandatory reporting, and partner notifi cation (see chapters 9 and 10). The fact that the Supreme Court has recognized these rights as implied in the Constitution is thus important to the study of public health law.119

The modern Court has repeatedly declared its reluctance to recognize unenumerated rights “because guideposts for responsible decision-mak- ing in this unchartered area are scarce and open-ended.”120 Some jus- tices see substantive due process as being in confl ict with democratic values because it places policy questions outside the “arena of public debate and legislative action.”121 Their concern is that, absent objective criteria, substantive due process would permit members of the Court to inject their policy preferences. Modern substantive due-process analysis relies on two requirements designed to facilitate objective reasoning. The Court requires, fi rst, a “careful description” of the asserted liberty interest and, second, a demonstration that the interest is “deeply rooted in the Nation’s history and traditions.”122 In a deeply divisive case, Lawrence v. Texas (2003), the Supreme Court acknowledged that history and tradition are the starting point, but not necessarily the ending point, of substantive due-process inquiry. The Court, in a depar- ture from its narrow reading of substantive due process, said that crim- inal penalties against same-sex sodomy touched on “the most private human conduct, sexual behavior, and in the most private of places, the home.”123

In recent cases, the Court has avoided articulating newly recognized fundamental rights, preferring instead to blend aspects of substantive due process, equal protection, and federalism doctrine. In 2013, for example, the Court struck down the Defense of Marriage Act’s defi ni- tion of marriage as between a man and a woman (for the purposes of federal law). Justice Anthony Kennedy’s opinion for the majority cited equal protection and federalism concerns, in addition to describing the provision “as a deprivation of the liberty of the person protected by the Fifth Amendment.”124 Two years later, Justice Kennedy again authored the majority opinion in Obergefell v. Hodges (2015), holding that states must license same-sex marriages and recognize such marriages licensed and performed in other states. The majority opinion in Obergefell blended liberty and equality rationales, relying on recognition of mar- riage as a fundamental right under substantive due-process doctrine and equal protection scrutiny of distinctions based on sexual orientation.125

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Equal Protection

The Fourteenth Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” a provi- sion incorporated into the Fifth Amendment’s Due Process Clause, making it applicable to the federal government.126

Regulations draw distinctions among individuals and businesses for a variety of purposes, with resulting disadvantage (or advantage) to various groups.127 The law can discriminate in two ways. First, it can expressly make distinctions between groups. This kind of discrimina- tion is called a facial classifi cation because the distinction is “on the face” of the statute. For example, a statute that requires searches of persons of Middle Eastern descent facially discriminates on the basis of national origin. Second, the law can be facially neutral (applying a gen- eral standard to everyone) but discriminatory nonetheless because it disproportionately aff ects particular groups. For instance, a law that mandates HIV testing for pregnant women in geographic areas with a high prevalence of HIV infection will have a disparate impact on women of color and low income women because of disproportionate rates of HIV in their communities. The Supreme Court will not necessarily fi nd that a generally applicable law violates equal protection, even if it has a demonstrably inequitable eff ect on vulnerable groups. If a law is facially neutral, the disproportionately burdened class must demonstrate that the government’s actual purpose was to discriminate against that group, which can be exceedingly diffi cult to prove.128

Contrary to popular belief, government is not obliged to treat all people identically. Instead, equal protection requires government to treat like cases alike but permits—and may even require—government to treat unlike cases dissimilarly.129 Virtually all public health policies establish classes of people or businesses that receive a benefi t or burden and classes that do not. For example, a rule limiting the container size in which sugary drinks may be sold might apply to restaurants but not grocery stores. A rule regulating tobacco advertising or fi rearm posses- sion might apply within a certain distance of schools or playgrounds but not in other locations. The critical question is whether a suffi cient justifi cation exists for making the distinction. Medicare eligibility, for example, is based on age and disability, but the government has a plau- sible reason for off ering the benefi t to the elderly and disabled and excluding others. On the other hand, quarantining only people of Chi- nese descent in an area where there is a disease outbreak cannot be

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justifi ed,130 particularly because some kinds of distinctions trigger more searching judicial review than others.

The courts strictly scrutinize laws that create “suspect classifi ca- tions” (e.g., race, national origin, and alienage) or burden “fundamen- tal rights” (e.g., procreation, marriage, interstate travel, and voting) (see “Levels of Constitutional Review” below). For example, the courts would closely examine a policy that required all African Americans to be tested for sickle-cell disease. Similarly, the courts would carefully examine a quarantine placed at the border of New York and New Jersey that inhibited movement across state lines. On the other hand, laws drawing distinctions between opticians and optometrists with regard to their scope of practice, for example, are subject to minimal review.131

Freedom of Expression The tobacco industry used the First Amendment to have new, scarier health warnings on cigarette packaging thrown out on the grounds that the labels constituted a form of compelled speech. . . . Google has argued that, since search results are speech, its rights are impinged by the enforcement of tort and antitrust laws. Airlines have employed the First Amendment to resist eff orts to force them to list the full price of tickets. The incomplete, misleading cost, they have argued, is a form of free speech, too . . . . Free speech is a cherished American ideal; companies are exploiting that esteem to try to accomplish goals that are not so clearly related to speech.

— Tim Wu, “The Right to Evade Regulation,” 2013

The First Amendment provides: “Congress shall make no law . . . abridg- ing the freedom of speech, or of the press.” The fi eld of public health is deeply concerned with the communication of ideas. Thus, freedom of expression has important implications for public health regulation.

Freedom of expression is foundational to American law and culture and has powerful benefi ts for public health. Public health advocates, for example, have urged courts to invalidate government regulations that restrict speech by health experts concerning safer sexual practices and the risks of gun ownership and that compel physicians to provide inac- curate information regarding health risks associated with abortion— with mixed success.132 Yet increasing First Amendment protection for commercial speech—and corporate personhood under the Constitution more broadly (see box 4.2)—has emerged as a major barrier to eff ective public health regulation, particularly with regard to drug and medical device safety,133 tobacco and alcohol control,134 health information pri- vacy, and health care cost control.135 Modern commercial speech doc-

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box 4.2 Corporate Personhood and the Public’s Health

Recent arguments favoring commercial entities’ free speech often sound as if business enterprises are fl esh and blood citizens of the republic and, as such, are entitled participants in a public sphere, rather than instrumental creations that we bring into legal existence in order to serve our interests. It is as if society consists of two opposing types of “beings,” each equally worthy of moral and legal concern— people and corporations. This is idiocy. . . . When claims are made on behalf of commercial entities, the confl ict involves people’s creations claiming rights over their creators. — C. Edwin Baker, “Paternalism, Politics, and Citizen Freedom,” 2004

Corporations have long been recognized as legal persons that enjoy certain rights and obligations independent of their shareholders.1 Dur- ing the nineteenth century, the Supreme Court subscribed to the widely held view that a corporation is an “artifi cial entity” created by human beings and the law.2 It thus recognized personhood status only to the extent that it would facilitate shareholders’ property interests by granting corporations the capacity to engage in contracting, to hold property, and to fi le suit to vindicate economic rights. The Supreme Court’s approach to extending other constitutional protections to cor- porations was perhaps inconsistent. It declined, for example, to recog- nize corporations as “citizens” under the Privileges and Immunities Clause in Article IV of the Constitution,3 while recognizing them as legal “persons” for the purposes of the Fifth and Fourteenth Amend- ments’ guarantees of equal protection and due process.4

During the Lochner era, the Court adopted the more radical view that a corporation is a “real entity,” independent both of “the indi- vidual members who compose it [and] of the state that legally recog- nizes its form.”5 The real entity theory led to signifi cant expansion of corporate rights beyond protection of shareholders’ property and con- tract interests.6 Nonetheless, the Court continued to assess the logic of corporate personhood on a case-by-case basis, holding, for example,

1. Virginia E. Harper Ho, “Theories of Corporate Groups: Corporate Identity Recon- ceived,” Seton Hall Law Review, 42 (2012): 892.

2. Susanna Kim Ripken, “Corporations Are People Too: A Multi-dimensional Approach to the Corporate Personhood Puzzle,” Fordham Journal of Corporate and Financial Law, 15 (2009): 107.

3. Bank of Augusta v. Earle, 38 U.S. 519 (1839). 4. Santa Clara Cnty. v. S. Pac. R. Co., 118 U.S. 394 (1886); Minneapolis & St. Louis

Ry. Co. v. Beckwith, 129 U.S. 26, 28 (1888). 5. Ripken, 112. 6. Elizabeth Pollman, “Reconceiving Corporate Personhood,” Utah Law Review,

2011 (2011): 1655.

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that a corporation does not have a Fifth Amendment right against self- incrimination but does have a Fourth Amendment right against unrea- sonable searches and seizures.7

In contemporary cases, the Court has moved beyond traditional property interests as the foundation of corporate personhood. In First National Bank of Boston v. Bellotti (1978), the Court held that corpo- rations have a First Amendment right to make political expenditures to infl uence elections, reasoning that this approach would protect the marketplace of ideas.8 In 1990 and 2003, however, the Court upheld state and federal restrictions on certain political expenditures based on the government’s compelling interest in combating “the corrosive and distorting eff ects of immense aggregations of wealth that are accumu- lated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”9

In 2010, the Supreme Court partially overturned the 1990 and 2003 precedents in Citizens United v. Federal Election Commission.10 In a 5–4 decision that deeply divided the nation, the Court invalidated restrictions on independent political expenditures by corporations, associations, and labor unions. The majority described corporations as “associations of citizens,”11 which suggests “that a corporation is best understood as a group of otherwise disaggregated natural persons joining together by agreement to mutually pursue a private endeavor.”12 The dissent, however, enunciated a sharply diff erent view, describing corporations as exercising “delegated responsibility for ensuring soci- ety’s economic welfare.”13

The implications of Citizens United and subsequent decisions invalidating other campaign fi nance reforms are continuing to play out in the political arena.14 Before Citizens United, corporate interests could infl uence elections only through political action committees (PACs), drawing on designated contributions from corporate offi cers, shareholders, and employees. As a result of the Court’s decision, they may now reach directly into their treasury funds to sponsor advertise- ments expressly advocating the election or defeat of a candidate. The

7. Hale v. Henkel, 201 U.S. 43 (1906). 8. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 9. Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990); see also McConnell

v. Fed. Election Comm’n, 540 U.S. 93 (2003). 10. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). 11. Id. at 354. 12. Lyman Johnson, “Law and Legal Theory in the History of Corporate Responsibil-

ity: Corporate Personhood,” Seattle University Law Review, 35 (2012): 1140, 1142. 13. Citizens United, 558 U.S. at 465 (Stevens, J., concurring in part and dissenting in

part). 14. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct. 2806

(2011), invalidating a portion of Arizona’s public campaign fi nancing system whereby public funds were triggered by private fi nancing of opposing candidates; McCutcheon v. Fed. Election Comm’n, 134 S.Ct. 1434 (2014), invalidating aggregate limits on contribu- tions by individual donors.

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Constitutional Limits | 141

trine is so uncertain, but still potentially so forceful, that it chills a great deal of public health regulation.

Because human behavior is a powerful contributor to injury and dis- ease, public health strives to infl uence behavioral choices. Public health agencies deliver messages to promote healthy behavior directly (govern- ment speech) and indirectly through spending (government-sponsored speech). Government also suppresses commercial messages deemed hazardous to the public’s health (through advertising restrictions) and compels warnings and disclosures deemed essential to the public’s health (compelled speech). Government control of the information environment raises profound social and constitutional questions.

Government Speech

Government, as a health educator, uses health communication campaigns as a major public health strategy. These campaigns, like other forms of advertising, are persuasive communications; instead of promoting a product or a political philosophy, public health authorities promote safer, more healthful behaviors, such as vaccination, seat belt and helmet use,

amount and frequency of corporate lobbying and PAC activity increased following the Court’s decision.15 Voters in a few states and hundreds of cities have passed referenda calling on Congress to pass an amendment imposing limits on corporate political expenditures and stating that “corporations should not have the constitutional rights of human beings.”16

William Wiist argues that Citizens United could have a “cata- strophic” impact on public health in the United States.17 Eff ective pub- lic health strategies often rely on law and policy interventions that target corporate interests: the tobacco industry, the pharmaceutical industry, fi rearms manufacturers and sellers, the alcohol industry, the food and agriculture industry, the chemical industry, motor vehicle manufacturers, and others. Citizens United aff ords even more political power to these interests.

15. See John C. Coates IV, “Corporate Politics, Governance and Value before and after Citizens United,” Journal of Empirical Legal Studies, 9 (2012): 657.

16. Kathleen Miles, “Prop C, LA Measure to Overturn Citizens United, Will Be Voted on by Angelenos Next Week,” Huffi ngton Post, May 14, 2013, www.huffi ngtonpost. com/2013/05/14/prop-c-la-citizens-united_n_3267240.html.

17. William H. Wiist, “Citizens United, Public Health, and Democracy: The Supreme Court Ruling, Its Implications, and Proposed Action,” American Journal of Public Health, 101 (2011): 1172.

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healthy eating, physical activity, breastfeeding, and abstention from smoking.136 Health education often is a preferred public health strategy, and in many ways it is unobjectionable. When the government speaks, citizens may choose to listen and adhere to the health messages, but they are free to reject government advice. Government’s use of its own voice does not raise the constitutional concerns triggered when it silences or compels speech.137 Even in cases where a law compels private subsidiza- tion of government speech, the Supreme Court has held that First Amend- ment concerns are not implicated.138 For example, a state may impose special taxes on tobacco companies and earmark the revenue for an ant- ismoking campaign without running afoul of the First Amendment.139

Government-Subsidized Speech and the Unconstitutional Conditions Doctrine

Restraints on speech as a condition imposed on recipients of govern- ment funds are subject to the “unconstitutional conditions” doctrine, which specifi es that government cannot punish those who convey disfa- vored ideas by denying them benefi ts.140 Government is free to specify the message it wants to promote with its own funds, but it cannot com- pel or restrict speech by grant recipients supported by other funds.

The distinction between choosing which speech to subsidize and impos- ing unconstitutional conditions on recipients is far from straightforward. In Rust v. Sullivan (1991), for example, the Court upheld regulations pro- hibiting doctors and staff in clinics receiving family planning funds under Title X of the Public Health Services Act from providing abortion coun- seling or referrals.141 The Department of Health and Human Services (DHHS) regulations at issue mandated that abortion-related activities conducted by recipients be wholly separate—physically and fi nancially— from activities conducted with federal funds. These requirements (man- dating separate facilities, separate personnel, etc.) were burdensome enough to amount to a de facto prohibition on abortion counseling and referral. Doctors and staff “were expressly instructed that one permissible response to questions about abortion would be that a Title X project ‘does not consider abortion an appropriate method of family planning,’ ”142 yet the restrictions were upheld. In Agency for Int’l Development v. Alliance for Open Society Int’l (2013), however, the Court struck down a provision requiring private U.S. organizations receiving global health funds to have an explicit policy opposing sex work (the so-called antiprostitution pledge). The Court emphasized a distinction “between conditions that

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defi ne the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the [govern- ment-funded] program itself.”143

Restrictions on Commercial Speech

Commercial speech is an “expression related solely to the economic interests of the speaker and its audience”144 that “does no more than propose a commercial transaction.”145 The three attributes of commer- cial speech are: (1) it identifi es a specifi c product (i.e., off ers a product for sale), (2) it is a form of advertising (i.e., is designed to attract public attention to, or patronage for, a product or service, by paid announce- ments proclaiming its qualities or advantages), and (3) it confers eco- nomic benefi ts (i.e., the speaker stands to profi t fi nancially).146

Prior to the mid-1970s, the Supreme Court held that commercial advertising was entirely unprotected by the First Amendment.147 When the Court fi rst began to recognize limited constitutional protection for commercial speech, it did so in the interest of consumer protection, striking down state laws prohibiting advertisements for abortion serv- ices and prohibiting pharmacists from providing information about prescription drug prices.148 In the years that followed, the Court contin- ued to recognize the “ ‘common-sense’ distinction between speech pro- posing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech,” grant- ing less constitutional protection to the former.149

In Central Hudson Gas & Electric Co. v. Public Service Commission of New York (1980), the Court elaborated a four-step intermediate scrutiny test for establishing whether a regulation of commercial speech violates the First Amendment.150 First, commercial speech is not pro- tected by the First Amendment if it promotes unlawful activity or is false, deceptive, or misleading (step 1). To regulate truthful advertising with regard to lawful activity, the government must have a “substan- tial” interest in regulating the speech (step 2); the regulation must “directly advance the governmental interest asserted” (step 3); and the regulation must be no “more extensive than is necessary to serve” the stated governmental interest (step 4).151

In early cases applying the Central Hudson test, courts routinely deferred to commonsense legislative judgments. Increasingly, however, the Court has required the state to have a clear and consistent policy as

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144 | Legal Foundations of Public Health

well as evidence to demonstrate that the regulation is likely to achieve the asserted objective and is no more restrictive than necessary. For example, in a 1986 challenge to restrictions on advertising for gam- bling, the Court acceded to the commonsense assumption that advertis- ing stimulates demand (and thus restrictions decrease demand) for socially harmful products and services.152 Thirteen years later, the Court declined to defer to a similar legislative judgment, assuming instead that advertising would merely channel consumers to a diff erent venue or brand, rather than stimulate demand.153 This argument is worrisome because it is exactly the claim made by tobacco, alcohol, and sugary drinks manufacturers, who insist that they are advertising only to achieve greater market share, not to stimulate demand (see chapter 12).

The commercial speech doctrine has relevance for other public health regulations as well. In Thompson v. Western States Medical Center (2002), for example, the Court invalidated portions of a federal law that exempted traditional compounding pharmacies (which mix drugs to create a medication tailored to a patient’s needs) from various safety regulations applicable to manufacturers, so long as pharmacies did not advertise or promote the compounded drugs.154 In holding that the advertising-based distinction between pharmacies and manufacturers amounted to an unconstitutional restriction on commercial speech, the Court reasoned that the government failed to demonstrate that the restrictions on advertising were no more extensive than necessary to achieve state interests. The resulting deregulation was indirectly impli- cated in dozens of deaths during a 2012 fungal meningitis outbreak traced to contaminated medications distributed by a Massachusetts compounding pharmacy to twenty-three states.155

Compelled Commercial Speech

Federal and state regulations compel a great deal of speech for public health or consumer protection purposes. Regulations require businesses to label their products by specifying contents or ingredients (for prod- ucts such as foods and cosmetics), potential adverse eff ects (for pharma- ceuticals and vaccines), and hazards (e.g., for cigarettes, alcoholic beverages, or pesticides). Laws may also create a “right to know” for consumers (e.g., for quality measures for hospitals or health plans), workers (such as health and safety risks), and the public (e.g., for haz- ardous chemicals in the environment).156

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Because mandates to disclose factual and noncontroversial informa- tion “trench much more narrowly on an advertiser’s interests than do fl at prohibitions on speech,” the First Amendment interests implicated are substantially weaker than those at stake when speech is suppressed.157 In Zauderer v. Offi ce of Disciplinary Counsel (1985), the Supreme Court held that laws requiring the disclosure of commercial information are constitutional as long as they are reasonably related to the state’s asserted interest.158 Federal courts have applied Zauderer to uphold country-of- origin labeling requirements for meat products159 and calorie postings for menu items in chain restaurants.160 There is uncertainty, however, regarding Zauderer’s applicability to mandates for graphic warning labels that seek to discourage consumption (see chapter 12).

Freedom of Religion Whenever the exercise, or alleged exercise, of religious freedom has come in confl ict with public health laws, medical practice acts, and laws requiring adequate medical care for minor children, the courts of last resort in this country invariably have ruled that it is public health which must prevail. Freedom of belief may be absolute, but freedom of action is not.

— James Tobey, “Public Health and Religious Freedom,” 1954

The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Confl icts between religious belief and public health are long-standing— especially with regard to mandatory vaccination, testing, and treatment and reproductive health—but the courts have primarily decided free-exer- cise cases in favor of generally applicable health and safety regulations.

Jacobson did not address whether mandatory vaccination laws vio- late the free exercise of religion because, at the time, the First Amend- ment had not yet been applied to the states via incorporation.161 The Supreme Court has noted in dicta, however, that the parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communica- ble disease or the latter to ill health or death.”162 Lower courts have routinely upheld vaccination mandates that do not provide for religious exemptions163 and have also upheld local offi cials’ authority to assess the sincerity, strength and religious basis of individuals’ objections in deciding whether to grant exemptions (see chapter 10).164

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Prior to the 1990s, free-exercise jurisprudence was murky, with the Court strictly scrutinizing government action that purposefully inter- fered with religion and sometimes applying heightened scrutiny in cases where state action had a burdensome eff ect on conduct with religious signifi cance. In 1990, however, the Supreme Court largely abandoned the heightened scrutiny test for free-exercise challenges to “neutral laws of general applicability.”165 In response, Congress passed the Religious Freedom Restoration Act (RFRA), which prohibits the federal govern- ment166 (but not the states, because of the sovereign immunity doctrine discussed in chapter 3)167 from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.”168 Congress may overcome this prohibition in legislation adopted after RFRA, but only if it expressly supersedes RFRA.169

In 2014, Burwell v. Hobby Lobby Stores raised the question of whether RFRA rights extended to for-profi t corporations.170 The plaintiff s were closely held corporations and their owners, who operate their for-profi t businesses (ranging from Christian bookstore chains to mortgage compa- nies and kitchen cabinet manufacturers) in conformity with their per- sonal religious beliefs. They challenged the Aff ordable Care Act’s man- date that all private health plans must off er coverage for contraceptives (see chapter 8). “Religious employers” were exempted from the mandate, but DHHS has defi ned that category to include only churches, their inte- grated auxiliaries, and church associations. The Court’s decision in Hobby Lobby to recognize the religious rights of for-profi t corporations (at least when they are closely held, a term that the Court failed to defi ne clearly) has signifi cant implications for reproductive health and beyond.171

Levels of Constitutional Review A fi rst requirement of any law, whether under the Due Process or Equal Protection Clause, is that it rationally advance a legitimate government policy. Two words (“judicial restraint”) and one principle (trust in the people that “even improvident decisions will eventually be rectifi ed by the democratic process”) tell us all we need to know about the light touch judges should use in reviewing laws under this standard.

— Hon. Jeff rey Sutton, DeBoer v. Beshear, 2014

As this brief discussion of substantive due process, equal protection, free- dom of expression, and free exercise of religion suggests, the Supreme Court adopts diff erent levels of constitutional review depending on the nature of the classifi cation or the civil liberty in question. The level of

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review signals how a court will balance the various interests in a particu- lar case—the government’s interest in advancing the public good and the individual’s interest in nondiscrimination, autonomy, privacy, or liberty. The level of review also signals how carefully the court will scrutinize the public health policy or, to put it another way, how much deference the courts will give to the legislature or agency. The lower the level of scru- tiny, the greater the presumption of constitutionality. The three formal levels of constitutional review, ranging from most to least deferential, are rational basis (minimum rationality), intermediate review (which is sometimes used interchangeably with “heightened scrutiny”), and strict scrutiny.172 This rigidly structured scheme was widely followed for dec- ades, but in recent years the Court has preferred a more nuanced approach, rarely following these formal levels of review.

Rational Basis Review

The judiciary’s lowest, and most commonly used, standard of constitu- tional review is the rational basis test. All public health regulation must, at least, comply with this minimum rationality standard. Rational basis review requires both a legitimate government objective and means that bear some rational relationship to that objective. “Public safety, public health, morality, peace, law and order . . . are some of the more conspicu- ous examples” of legitimate governmental interests.173 The Court has expressly upheld numerous public health objectives, including traffi c safety,174 detection of underdiagnosed disease,175 and disease prevention.176

Rationality review is highly permissive of public health regulation, with the judiciary granting a strong presumption of constitutionality177 and frequently cautioning that constitutional review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”178 The legislature need not “actually articulate at any time the purpose or rationale” for its public health policy.179 Rather, public health regula- tion is upheld if there is “any reasonably conceivable state of facts that could provide a rational basis.”180

In the absence of a suspect classifi cation (race, national origin, reli- gion, or alienage) or fundamental right (e.g., expression, free exercise of religion, privacy, procreation, marriage, interstate travel), the Court has reasoned that the legislative branch may enact underinclusive laws applicable to some classes of actors or contexts, but not others: dealing with social problems “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.”181 An

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incremental approach to public health regulation is not only permissible but also often preferable, particularly with regard to complex, multifac- eted problems that require action through multiple modes, undertaken by multiple government actors. Unless a court can identify no rational rela- tionship between classifi cations drawn by a law and any conceivable pur- pose the law might serve, neither underinclusiveness nor overinclusiveness will be grounds for judicial invalidation. “Courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fi t between means and ends. A classifi cation does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality. The problems of gov- ernment are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientifi c.”182

Applying rationality review, the courts have upheld a wide spectrum of public health regulations, ranging from infectious disease screening,183 mandatory treatment,184 and vaccine compensation185 to regulation of landfi lls.186

Intermediate Review

Laws that discriminate on the basis of “quasi-suspect” classifi cations, including sex187 and “legitimacy” of children,188 trigger an intermediate level of scrutiny, as do restrictions on commercial speech.

Under this middle level of constitutional review, the state must estab- lish that its intervention serves “important” (not simply “legitimate”) governmental objectives and must be “substantially” (not merely “rea- sonably”) related to those objectives. Consider, for example, mandatory syphilis testing of female, but not male, applicants for a marriage license. This sexual classifi cation would probably be unconstitutional because it does not serve a substantial public health purpose.189 The prenatal HIV testing of women, however, might withstand constitutional scrutiny, because the state could demonstrate a substantial reason for focusing the intervention on women.190

Strict Scrutiny

As discussed above, the Supreme Court strictly reviews laws that create suspect classifi cations (classifi cations based on race, national origin, and, with some exceptions, alienage have been designated suspect) or burden fundamental rights (including liberty interests in procreation,

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marriage, interstate travel, and child rearing as well as certain privacy interests). The Court has found a constitutionally protected interest in bodily integrity, but it has yet to hold that such interest is fundamental.191

Under strict scrutiny, the government must demonstrate a “compel- ling” interest and a tight fi t between means and ends and must also show that its objectives could not be achieved by less restrictive or dis- criminatory purposes. Once the Court adopts strict scrutiny, it almost invariably strikes down the statute. Public health and safety are quintes- sentially regarded as compelling interests,192 but the means/ends fi t and least restrictive alternative requirements can pose problems for some health and safety regulations.

Beyond Levels of Constitutional Scrutiny

Breaking with long-standing practice, several contemporary Supreme Court cases appear to apply a more rigorous form of rational basis review, sometimes declining to identify the standard of review at all, suggesting that the Court is moving away from its historical reliance on rigidly defi ned categories (rationality, intermediate, strict), classifi cations (suspect, quasi- suspect, or nonsuspect), and rights (fundamental or not). In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court, purportedly using rational basis review, declared unconstitutional a zoning ordinance that eff ectively prevented the operation of a group home for persons with intellectual disabilities.193 Under conventional rationality review, the judi- ciary would be deferential, but the Court felt that the legislature was moti- vated by animus against a traditionally disenfranchised group.

Similarly, in Romer v. Evans (1996), the Supreme Court reversed a state constitutional amendment motivated by prejudice against lesbian, gay, bisexual and transgender (LGBT) people, groups historically sub- ject to animus and disenfranchisement. Colorado had amended its state constitution via a voter referendum to prohibit all legislative, executive, or judicial action designed to protect individuals from discrimination on the basis of “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.” The Court held that the state constitutional amendment “fails, even defi es,” the standard of review, reasoning that it “seems inexplicable by anything but animus toward the class that it aff ects; it lacks a rational relationship to legitimate state interests.”194

Notably, the Supreme Court failed to specify a level of scrutiny when it invalidated state sodomy laws in Lawrence v. Texas (2003) on the basis of a liberty interest protected by substantive due process.195 The Court

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150 | Legal Foundations of Public Health

did not appear to apply strict scrutiny, which would have been appropri- ate if it were indeed recognizing a fundamental right protected by sub- stantive due process. Instead, as in Cleburne and Romer, it was appar- ently applying what Justice Scalia’s dissent referred to as “an unheard-of form of rational basis review that will have far-reaching implications.”

The Court continued this move toward abandoning rigid categoriza- tion in United States v. Windsor (2013) and Obergefell v. Hodges (2015). In Windsor, the district court had found the federal Defense of Marriage Act’s restrictive defi nition of marriage unconstitutional under rational basis review. The circuit court ruled that gay and lesbian people were part of a “quasi-suspect class,” and thus the provision warranted intermediate scrutiny. While the Supreme Court agreed with both lower courts that the provision was unconstitutional, it declined to identify a level of scru- tiny, drawing on federalism, equal protection, and substantive due-proc- ess language for its rationale. In Obergefell, the lower courts striking down state bans on same-sex marriage had adopted various rationales, including that marriage is a fundamental right protected by the substan- tive due-process doctrine, that distinctions based on sexual orientation trigger heightened scrutiny under the equal protection doctrine, and that bans on same-sex marriage lack any rational relationship to a legitimate government purpose as required by both substantive due process and equal protection. Justice Kennedy’s opinion for the majority of the Supreme Court eschewed reliance on levels of scrutiny, emphasizing the interrelatedness of the principles of liberty and equality embodied in the Fourteenth Amendment.196At a minimum, these cases suggest that there are areas where legislatures (or voters, through referenda) act against politically disfavored groups with such hostility that the Court is pre- pared to examine legislative motives more carefully than in conventional applications of rationality review. In the Court’s words, “a bare congres- sional desire to harm a politically unpopular group cannot constitute a legitimate government purpose.”197 These cases are highly relevant to public health law because discrimination on the basis of sexual orienta- tion, disability, and socioeconomic class has played an important role in the history of public health (see chapters 10, 11, and 14).

Furthermore, this line of cases may represent a broader trend away from rigid categories of scrutiny altogether. Many constitutional schol- ars and members of the judiciary criticize the levels of review for being infl exible and outcome determinative.198 Strict scrutiny is “strict in the- ory, but fatal in fact.”199 In the absence of narrowly defi ned triggers for constitutional concern (suspect classifi cations and fundamental rights),

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the Court uses the rational basis test, and the government almost invar- iably wins. Certainly, diff erent standards ought to apply depending on the class aff ected or the right infringed; yet it is far from clear why such sharply diff erent constitutional standards, and outcomes, should result. The rigid approach has the benefi t of greater predictability, but this may be outweighed by its lack of fl exibility.

The Court’s recent due process and equal protection analysis sug- gests that it is moving toward a more fl exible approach, approximating a sliding scale. As the intrusiveness and unfairness of a policy increase, so does the level of judicial scrutiny. This approach refl ects a more fl uid balancing of individual interests and collective needs, but its fl exibility comes at the cost of predictability.

public health and civil liberties: conflict and complementarity

The inherent confl ict between the common good and civil liberties (for individuals as well as corporations) is a primary theme of this book. However, the relationship between rights and health is much more com- plex and nuanced. Infringing on individual interests can itself adversely aff ect the public’s health. By the same token, individual rights can be tools for protecting the public’s health.

If the U.S. Constitution recognized social and economic rights (to health care, food, housing, education, etc.) and affi rmative government obligations to provide for these basic needs, the relationship between health and rights might be more symbiotic (see the discussion of the social safety net in chapter 8). Nonetheless, protection of individual rights “to be left alone” can have benefi ts for public health as well. Gov- ernment interference with reproductive rights, for example, can have negative consequences for women’s health. Protection of racial and eth- nic minorities from discrimination—and protection of people with minority sexual identities or preferences—can reduce health disparities. Protection of corporate interests might promote economic development, which may ultimately be an eff ective path to improved public health.

The multifaceted interaction between constitutional powers, duties, and limitations and the public’s health is critically important to under- standing public health law. However, constitutional law is not the only fi eld of domestic law relevant to public health. In the following chap- ters, we examine the fi elds of administrative law, local government law, and tort law—all of which are vital to the study of public health law.

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photo 5.1. E. W. Kembel, “Death’s laboratory,” Collier’s National Weekly, 1906. This illustration accompanied one of a series of articles by Samuel Hopkins Adams on the dangers that unregulated patent medicines posed to the public’s health. The awareness-raising eff orts of “muckraker” journalists like Adams prompted passage of the Pure Food and Drug Act of 1906 (which created the U.S. Food and Drug Administration) and many other Progressive Era reforms.

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