NCJ Number
108596
Journal
Hastings Center Report Dated: special supplement (December 1986) Pages: 2-10
Date Published
1986
Length
9 pages
Annotation
The history of constitutional law and communicable disease shows both the principles that will influence judicial responses to the epidemic of acquired immunodeficiency syndrome (AIDS) and the concepts that policymakers may want to consider when developing a humane and effective policy for the control of AIDS.
Abstract
Although public health measures to control communicable disease date to the colonial period in the United States, judicial opinions regarding claims that these measures violated constitutional rights did not appear until 1875. Before then, litigants claimed only that the measures violated their business or property interests. Between 1875 and 1910, the courts strongly endorsed the powers of state and local governments to take strict measures to control contagious disease, but required the measures to be reasonable attempts to prevent the spread of disease. These patterns of decisions continued after 1910 and expanded to include support for mandatory testing for communicable disease and involuntary sterilization of the genetically unfit. Since 1940, judges have continued to enforce quarantines, vaccinations, mandatory health tests, and even some sterilization orders. However, they have replaced their limited concept of civil rights with a more positive view, been increasingly willing to overturn legislative decisions, and become more skeptical about science and its claims that certain people are dangerous or that certain procedures are essential to promote health. These three judicial trends will help people infected with the human immunodeficiency virus to combat harsh restrictions on their liberty. However, the courts will still consider protection of public health to be a primary function of government. 56 references.