Governmentsoften limit or restrict rights in the name of other priorities such as public healthor national security. The law provides for competing priorities, as some rightsare absolute and others are qualified. According the Attorney-General’s Department,Absolute rights cannot be limited for any reason.
No circumstance justifies aqualification or limitation of absolute rights. Absolute rights cannot besuspended or restricted, even during a declared state of emergency(Attorney-General, 2012). Qualified rights however are rights that the statecan lawfully interfere under certain circumstances as laid down in theconstitution or as the need maybe. The law often seeks to balance its competingpriorities, whether ethical, social, economic, and even health. For example, inthe event of a contagious disease epidemic, the government may decide to restrictyour freedom of movement to ensure the general welfare of the public. What isthe appropriate role of governmental public health action, and to what extentcan a state legitimately restrict the liberties of its citizens in order toserve the common good? These questions have formed the foundation ofcontroversies and long-running debates about public health in the UnitedStates.
Protection of health and safety are recognized as a core governmentfunction. The governmenthas a responsibility to protect individuals from unhealthy environments,whether the sources of health risks are natural (e.g., biological diseaseoutbreak) or created by people or organizations, but public health actions aresometimes labeled as unbefitting and impertinent.
Debatesover the scope of public health and its sometimes competing priority of individualhuman rights have been around since the early nineteenth century. The manyscientific advances over the last century has dictated the way health epidemicsare handled. “This ‘bacteriological revolution’ transformed our understandingof how disease spreads and laid the foundations for a new public health ethos”(Baldwin, 1999). In her book Betrayal ofTrust: The Collapse of Global Public Health, author Laurie Garret statesthat many early advocates of public health such as Mitchell Prudden and HermannBiggs, defended the validity of interference with the law in the face of publichealth threats (Garret, 2000). Garret quotes Biggs, “Everything” when talking aboutthe efforts to reduce the effects of the tuberculosis outbreak (Garret, 2000). Earlyadvocates argued that deplorable health situations like tuberculosis requireddrastic measures.
Public health officials were given the freedom to address issueswith, sometimes, very invasive approaches. In her book Garret commented “It wasa declaration of war, not just against tuberculosis but against any group orindividual who stood in the way of Public Health” (Garrett, 2000). In his 2006publication State of Immunity: ThePolitics of Vaccination in Twentieth-Century America, author James Colgrovetalks about the government’s efforts to control disease outbreak by introducingprocedures such as mandatory; vaccines, quarantines, and even surveillance. Theaggressive approaches often times warranted negative reactions and resistancefrom the public.
Colgrove uses and example from the 1890’s in Milwaukee, WI stating”for example, forceful application of the State’s mandatory vaccination lawsparked riots among the city’s large German immigrant population in the 1890s.Health officers who went into neighborhoods to vaccinate residents and removesick individuals to quarantine hospitals were greeted by angry mobs throwingrocks” (Colgrove, 2006). Many laws in public health law are legislated and enforcedunder what is known as the state’s “police power.
” In United Statesconstitutional law, police power is the capacity of the states to regulatebehavior and enforce order within their territory for the betterment of thehealth, safety, morals, and general welfare of their inhabitants (Britannica,2016). In his earlier 2005 publication Manifoldrestraints: liberty, public health, and the legacy of Jacobson v Massachusetts,Colgrove talks about the 1901 small pox epidemic in Massachusetts. The epidemicproposed a legal challenge to the states vaccination law.
Colgrove referencesthe historic ruling by the US Supreme Court in the case of Jacobson versusCommonwealth of Massachusetts, which established the government’s right to useits ‘police powers’ in order to control epidemic disease. The Court affirmedthe right of the people, through their elected representatives, to enact”health laws of every description to protect the common good” (Colgrove , 2005). In the 1985 Hofsta Law Review AIDSand quarantine: the revival of an archaic tradition, author Wendy Parmet commentsthat US courts almost always deferred to public health authorities that havedeprived individuals of their liberty in the name of public health. “It isunquestionable that the legislature can confer police powers upon publicofficers for the protection of the public health. The maxim Salus populi suprema lex is the law ofall courts in all countries. The individual right sinks in the necessity toprovide for the public good” (Parmet, 1985).
In 1966 a California courtdeclared that “health regulations enacted by the state under its police powerand providing even drastic measures for the elimination of disease…in ageneral way are not affected by constitutional provisions, either of the stateor national government” (Leishman, 1989).
Isit appropriate for the State to impose restrictions on individuals for the sakeof public welfare? Supporters of the “harm principle” articulated in 1859 wouldargue no. The harm principle holds that the actions of individuals should onlyinterfere with the freedom of others to prevent harm to other individuals(Hamowy, 2008). Supporters of the harm principles would argue that the governmentshould educate, but not enforce. Some individuals argue that mandatory enforcementof public health measures is both an action of limiting or undermining individualrights and does not produce any significant or desired effect, sometimes producethe opposite of the desired effects; others believe that the inevitableconflict between public health measures and human rights must be acknowledgedand dealt with according to the situation. It is my personal belief that thereare certainly situations when obligatory actions are the only reasonableoption—but these actions should always be the last resort when allnoncompulsory measures fail. Those that defend individual rights are correct topoint out that extreme measures that limit such rights do not necessarily contributeto protecting public welfare.
I believe that there are situations in which thegood of the public must come before individual rights. Thereis still the looming question of how far is too far when it comes to thegovernment infringing on human rights for the sake of public welfare, and alsothe question of how the government should handle rare cases such as the isolationof an individual who carries a potentially contagious disease, but refusesvoluntary measures to protect public welfare. I believe that there must beprocedures in place to mandate isolation if absolutely necessary. “Liberty-deprivingmeasures should not be ruled out per se because not allmembers of the public can be trusted to do the right thing.
People can only beexpected to voluntarily submit to liberty-depriving measures in times of crisisand only if they fully trust in the honesty and competence of the public healthauthorities. The recommendations must be seen to be for the good of both the individualand of the populace in general, and to be a balanced response to the level ofthreat” (Kurth, 2007). In my opinion, civil rights should be to priority inevery situation, but civil rights should be infringed if public welfare is atstake.
Situations should be evaluated cases by case and only if—an individualdenies noncompulsory measures, then compulsory measures should be enforced. In orderto foster the public’s trust in health authorities, governments must focus on educatingthe public and giving evidence-based advice. By being seen to react to threatsin a measured, calm, communicable, and balanced manner that prioritizes therights of the individual, while at the same time doing everything possible to protectpublic welfare.
“Across the spectrum of threats to the public health—frominfectious diseases to chronic disorders—are inherent tensions between the goodof the collective and the individual. To acknowledge this tension is not toforeordain the answer to the question ‘How far should the state go?’; rather,it is to insist that we are fully cognizant of difficult trade-offs when we makepolicy determinations” (Bayer, 2018).