Tuberculosis and the Power of the State: Toward the Development of Rational Standards for the Review of Compulsory Public Health Powers

. . .

A host of compulsory measures to combat the spread of tuberculosis can be documented from the mid-1890s, beginning almost directly after Koch’s discovery of the causative agent of tuberculosis. The scope of state intervention was wide and included case identification (mandatory testing, physical examinations, reporting, tuberculosis registries, and contact tracing), disinfection or closure of premises, confinement (isolation and civil commitment), and criminal prosecutions for endangering the public. In some instances, child custody was taken away from parents exposed to tubercule bacilli. Public health officials argued that these powers constituted a valid exercise of the police power. Health departments even considered, but did not adopt, a policy of restricting interstate travel by persons who desired to travel west for a more healthful climate. The biological revolution of antibiotics in the latter half of this century resulted in policies of compulsory treatment and of directly observed therapy. Indeed, the biology of tuberculosis has placed this disease as the very archetype for compulsory state interventions for the benefit of the individual and wider community.

This Article uses tuberculosis as the paradigm for exploring rational standards for the exercise of compulsory public health powers. Extant doctrine in disability and constitutional law provides a lens for examining judicial review of state interventions. First, I set out the central epidemiological and biological aspects of tuberculosis to demonstrate the strength of the government interest in curtailing the epidemic. Second, I examine the interventions of testing, screening, and confinement of persons with tuberculosis. Here, I focus on two congregate settings – correctional and health care facilities – that present substantial health risks and are principal foci for the exercise of state intervention. Third, I examine the exercise of traditional public health powers of detention, compulsory treatment, and directly observed therapy. Here, I discuss several conceptual dilemmas that continue to thwart scholars and the judiciary relating to the appropriate boundaries fir governmental intervention. I conclude by arguing that, while the exercise of compulsion targeted against the individual remains a necessary component of disease control, it has been over-emphasized in scholarly discourse and case law. I advance the argument that government ought to be more concerned with aggregate changes in behavior among populations, which, paradoxically, is achieved not by focusing on the actions of individuals, but on broad policies of the state. Accordingly, thoughtfully crafted state programs for education and counseling and economic and social incentives for treatment stand the best chance of curtailing tuberculosis, and other ancient and emerging communicable diseases.

The Not-So Weisman: The Supreme Court’s Continuing Misuse of Social Science Research

The relationship between social scientists and the judiciary is less than perfect. Despite the Supreme Court’s long tradition of using data gleaned from social science research, the Court has consistently adopted and often misused this research to augment its opinions. In many cases, the Court has even refused to consider relevant social science data, instead choosing to rely on guidance from the "pages of human experience."

One of the most recent examples of the Supreme Court’s use of social science data is Lee v. Weisman, in which the Court decided "whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment . . .." The case was brought originally by the parents of a fourteen-year-old girl seeking to bar permanently the local school board from continuing its practice of inviting members of the clergy to give religious invocations and benedictions at middle school and high school graduation ceremonies.

Weisman offered an especially challenging case for the Supreme Court to decide. The issue of invocations and benedictions at public school graduation ceremonies involves the intersections of two competing strands of Establishment Clause jurisprudence. Graduation prayer is a traditional, ceremonial practice that takes place in the special context of public schools. Although the Court has "tended to treat traditional practices with great deference, it has applied the Establishment Clause with an almost reciprocal vigor in public school cases." The diversity of conclusions drawn in the majority, concurring, and dissenting opinions in Weisman evidences the difficulty the Court is having in determining the proper place for prayer in public school ceremonies and, more generally, in reaching consensus on the precise test that should be applied in resolving Establishment Clause cases. Thus, as the latest example of the Supreme Court’s difficulties in settling such cases, Weisman is an important First Amendment decision.

But for those interested in the use of social science research in constitutional adjudication, the case is an exemplar of the Court’s longstanding ambivalence toward social science research. In reaching its decision that the public school’s use of clergy to deliver religious invocations and benedictions at graduation ceremonies violates the First Amendment, the Court’s majority noted that prayer exercises in public schools carry an acute risk of indirect and subtle coercion. It concluded that high school level students who wished in some way to dissent from such exercises would suffer real injury if forced by the State to pray in a manner antagonistic to their consciences. The majority supported this "common assumption" with three research articles from respected psychological journals that purportedly quantified the presumption that "adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social conventions."

We scrutinize those studies and review the larger body of research that undermines the majority’s assumptions concerning the effect of peer pressure on adolescent behavior. We embed the discussion in al illustrative history of the Court’s misuse and nonuse of social science date in which Weisman too easily fits.

Comment: Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875

. . .

The traditional interpretation of the historical evidence on miscegenation and the understanding of equality, and the subsequent rejection of the enterprise of historical investigation, must be re-evaluated. Republicans embraced a more modern understanding of equality during the debates over the Civil Rights Act of 1875. While supporters of the Civil Rights Act of 1875 were understandably cautious in handling the issue of miscegenation, they were unwavering in their rejection of symmetrical equality. Moreover, when directly confronted with the miscegenation question, several Republicans called for the repeal of anti-miscegenation statutes on the basis of their understanding of equality, and no supporter of the bill sought to avoid the issue by defending the constitutionality of anti-miscegenation laws or by invoking the principle of symmetrical equality. Not only does this suggest revisions in our historical understanding of Congress’s treatment of miscegenation, but also it questions whether the analysis of the Equal Protection Clause in Pace and Plessy was consistent with the original understanding.

This Comment examines Congress’s treatment of miscegenation and its relationship with the concept of symmetrical equality. Section I discusses the way this issue arose during the debates over the Civil Rights Act of 1875. Section II examines the Republicans’ treatment of the miscegenation question in Congress and the courts during Reconstruction. Section III demonstrates how the Republic treatment of the miscegenation question during the debates over the Civil Rights Act of 1875 quietly supported the repeal of anti-miscegenation laws and rejected the doctrine of symmetrical equality.

Comment: Using International Political Agreements to Protect Endangered Species: A Proposed Model

The need to protect endangered species has reached a critical level . . . This Comment asserts that the international community should adopt resolutions similar to those of the Geneva Conventions but targeted at saving endangered species. The binding nature of the Geneva Conventions would facilitate enforcement in the international community. The existence of an international organization, much like the International Red Cross, that is dedicated to overseeing species preservation and acting as a non-partisan negotiator would promote interaction and coordination between non-governmental organizations and governments and among governments themselves. For example, private groups often possess material and financial resources but cannot act because of government intervention of internal problems. Similarly, governments can pass laws but may not have the resources to implement or enforce them. Coordination between private and government organizations, facilitated by political agreements and organizations patterned after the Geneva Conventions and the International Red Cross, could alleviate the emergency situation now facing many species.

Section I of this Comment will canvass the current state if international wildlife protection. Section II will discuss the Geneva Conventions, their framework of support for the activities of the International Red Cross, and the structure of the International Red Cross itself. Finally, Section III will apply the structure of the Geneva Conventions and the International Red Cross to the protection of endangered species.

Comment: Taking Care of Two: Criminalizing the Ingestion of Controlled Substances During Pregnancy

. . .

Medical data now reveal an undisputed link between the use of controlled substances during pregnancy and birth defects. But current laws do not specifically or adequately protect a fetus from its mother’s potentially harmful behavior. In response, prosecutors rely on civil tort statutes, neglect statutes, or broader criminal statutes in an effort to punish the mother for her destructive behavior. These statutes, however, were not written to remedy the problem. Lacking the necessary tools to protect the unborn, prosecutors often do not bring suit. Those who do often fail. Meanwhile, pregnant women continue to use drugs, and babies continue to bear the scars of their mothers’ addictions.

This Comment argues that incarceration may be the only way to deter [. . .] women from ingesting hazardous substances during pregnancy. If more women believed that ingesting hazardous substances while pregnant would result in imprisonment, more would discontinue using drugs. Maybe then more children could look forward to healthy lives.

This Comment first discusses the background surrounding the current debate. An examination of the problem will demonstrate that a significant number of women ingest controlled substances during pregnancy, and that these drugs harm a woman’s fetus. This Comment examines proposed legislative and judicial remedies and finds that they are not sufficient. It argues that the courts, in an effort to balance the mother’s right to autonomy and a baby’s right to a healthy life, have usurped the legislature’s role and created inconsistent precedents. The lawmakers, on the other hand, have been slow to act, preferring to leave this issue to the courts.

This Comment then examines solutions to the current disarray and endorses a statute that criminalizes the ingestion of controlled substances during pregnancy. This proposal is better than the current scheme because it conveys a strong message to pregnant drug users and provides a single source of law upon which both mothers and judges can rely.