September 03, 2010
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The Dark Side of Public HealthVaccinations were not universally applauded in the early 20th century, however, and one resident of Cambridge, Massachusetts, Henning Jacobson, sued the state public health department after he was fined $5 for refusing to be vaccinated against smallpox, and then jailed when he refused to pay the fine. The case, Jacobson v. Massachusetts,(1) went all the way to the United States Supreme Court. Not only was this the first Supreme Court decision regarding the government's public health powers but it still stands as the leading case acknowledging the scope of these powers. The Court's opinion, written by Justice Harlan, analogizes the public health power of the state to the power to defend itself against foreign attack, including requiring citizens to take up arms and risk "the chance of being shot down." Harlan emphasizes that the common good takes precedence over the "wishes or convenience of the few." The only constraints on the exercise of this broad public health power are that it may not be either "arbitrary or unreasonable" or "cruel and inhuman." Accordingly, the opinion states that a person can refuse to be vaccinated if doing so "would seriously impair his health, or probably cause his death." In the Court's judgment, Henning Jacobson's objection that he had had an adverse reaction to vaccination as a child did not meet that test. (Note that the grant of an exception to immunization would not mean that a potentially infected individual would be allowed to circulate freely among the population, since the public health authorities could quarantine the person indefinitely.) The AIDS Crisis
The AIDS epidemic posed some difficult challenges for public health officials. This was not the first time that they had confronted a sexually transmitted disease (STD). In the early 20th century, the STD of concern was syphilis and the government's actions were vigorous. During World War I, for example, 20,000 women believed to be at risk for spreading the disease (hence, the reason they were called "spreaders") were incarcerated in government camps. In the mid-1930s, Surgeon General Thomas Parran developed the techniques of mandatory reporting of infected persons, partner notification and contact tracing that became staples of the public health armamentarium. By the end of World War II, all states required syphilis testing before a couple could obtain a marriage license. Most states repealed these laws in the 1980s but not before many people suffered severe anguish as a result of the 25% false positive rate of the test then in use.
In the early stages of the AIDS epidemic, even more draconian public health measures were proposed. In 1985, the legislatures of Colorado, Florida and Texas considered bills to ban HIV positive individuals from working as food handlers. Rev. Jerry Falwell called for all prostitutes to be placed in quarantine and a bill to that effect was introduced in the Colorado legislature. William F. Buckley called for universal HIV screening. In 1987, Illinois began requiring HIV testing for marriage licenses. (By the end of 1988, 159,000 people had been tested at a cost of $5.6 million. A total of 23 cases were detected.) Also in 1987, then-Vice President George Bush urged the nation to mandate universal HIV screening. These calls for mandatory action were resisted by AIDS activists and some physicians. Quarantining individuals who engaged in high risk activities was deemed imprudent because it was known that a person could be infected with the HIV virus yet yield a negative test result because of a delay in seroconversion (the ability to detect antibodies to the virus in the blood). Thus, a person who was quarantined would have no way of proving that he or she was uninfected; quarantine, in effect, would have to be for life. The same seroconversion phenomenon bedeviled calls for mandatory testing of patients and prisoners after health care workers, law enforcement personnel or firefighters suffered accidental exposures. This led to an emphasis instead on universal precautions. Furthermore, the stigma attached to AIDS and the discrimination faced by those infected or at risk persuaded health policymakers that, in contrast to the use of mandatory reporting, partner notification and contact tracing that had been employed in the fight against syphilis in the 1930s, more people would obtain HIV testing if the tests were available on a voluntary, anonymous basis. Yet many in the public health community chafed at anonymous testing, believing that it placed the public at unnecessary risk by tying the hands of public health officials when it came to tracking and preventing the spread of the disease. There were repeated calls to return to the old mandatory public health style of intervention. Gradually, this viewpoint gained support. In 1992, North Carolina public health officials called a halt to anonymous HIV testing, an action that was upheld by the Supreme Court of North Carolina in a case called ACT-UP Triangle v. Commissioner for Health Services.(2) As of now, anonymous testing is banned in Alabama, Idaho, Iowa, Mississippi, Nevada, North Carolina, North Dakota, South Carolina, South Dakota and Tennessee. What tipped the balance against voluntary, anonymous testing was the development of drug treatment. The FDA approved AZT in 1987, followed by protease inhibitors in 1995. Once these drugs became available, the chilling effect of the stigma or discrimination associated with identifiable reporting of positive HIV test results was deemed to be negated by an individual's desire to be tested so that treatment could commence. An indication of how far the nation has gone toward a mandatory public health model in its response to AIDS is the September, 2006, recommendation by Centers for Disease Control and Prevention (CDC) that identifiable, reportable HIV tests be made a part of "routine" medical testing. The CDC states that patients should be notified that they were about to be tested for HIV and given an opportunity to decline, but the CDC also states that physicians should not have to obtain specific informed consent for the testing. At the same time, the CDC did not specific what would count as adequate notice. Conceivably, it might be sufficient if HIV testing were merely listed among the series of other tests on a laboratory order form.
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