Scrambling the New Sanitationist Synthesis: Civil Liberties and Public Health in the Age of COVID-19.

Abstract

For much of the nineteenth and twentieth centuries, the model of public health law was what Professor Wendy Parmet has called the "tragic view" of the law of public health.1 On this account, public health and civil liberties inevitably conflict. Legislators and judges need to make hard choices balancing one against the other. Sacrifices of important values are inevitable.

The leading case of Jacobson v. Massachusetts,2 decided in 1905, serves as the paradigmatic expression of the tragic view. In Jacobson, the Supreme Court upheld by a vote of seven-to-two a Massachusetts mandatory vaccination program for smallpox. Individual rights gave way to collective imperatives under the heading of the police power. Salus populi suprema lex, as the old Ciceronian dictum had it. The health of the people was supreme.

At the end of the twentieth century, public health law made a new turn. In a novel departure, a generation of lawyers and public health advocates began to argue that public health and civil liberties were not in conflict but aligned. Beginning in the 1980s, and inspired by the imperatives of the fight against HIV/AIDS, the new model asserted that nurturing the trust and eliciting the cooperation of vulnerable populations was crucial to the protection of public health and far more effective than harsh mandates and quarantines. Progressive public health leaders asserted that a synthesis of civil liberties and public health would not only protect rights, but that it was also crucial to the successful management of epidemics. 6 Protecting people's rights would enable the protection of public health; restricting those rights would only drive the sick and the vulnerable underground and make epidemic management more difficult. Public health and individual rights, it seemed, might run together because protecting rights would prompt widespread confidence in and cooperation with public health measures.