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Copyright (c) 2011 Loyola University Chicago School of Law, Beazley Institute for Health Law and Policy
Annals of Health Law

ARTICLE: Is State Power to Protect Health Compatible With Substantive Due Process Rights?

Winter, 2011

Annals of Health Law

20 Ann. Health L. 113


Allan J. Jacobs, M.D., J.D.*


Government action to further public health goals sometimes must be both rapid and drastic to be successful. Epidemics of disease can not only kill many people quickly, but can also have a ruinous impact on a society. For example, epidemics of communicable diseases have dealt serious blows, causing demographic and economic devastation to entire civilizations. 1 Injuries or exposure to toxic substances also can seriously damage the health of many people. 2

The Supreme Court has asserted that the term "public health" means "the health of the community." 3 It rejected the use of the of an alternative definition: "the ways and means of conserving the health of the members of a community, as by preventive medicine, organized care of the sick, etc.," 4 (emphasis added). This second definition is more rational, since it is people, not communities, who acquire disease and injury. Regardless, a public health law can be defined as a systematic governmental measure meant to prevent or ameliorate disease or injury.

Public health statutes, ordinances and regulations may interfere with personal liberties by restricting or imposing behavior or treatment. For example, states can quarantine people with infectious disease, 5 inject vaccines into the bodies of healthy persons, 6 and force patients with diseases to take medication. 7 Sick people are forbidden to procure and use certain substances they believe would help them but which the government deems ineffective or harmful. 8 Restrictions on smoking in public places 9 have been implemented to counter ...
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