Police powers are powers “exercised by states to enact legislation and promulgate regulations to protect public health, welfare, morals and to promote the common good.” Police powers allow states to enforce public health regulations to benefit the public, even if these regulations infringe upon individual rights.
Police Power gives states primary authority for public health activities and regulation because it was not explicitly mentioned as a federal responsibility in the Constitution.
Although patient autonomy has placed some limits on police powers, the courts have affirmed that individual liberties are not absolute and can be restricted for the public good.
Police Power & Public Health: A History
In the Constitution, police power originates from English common law doctrines calling for the protection of the common good over private rights. The term “police” in police power predates police forces and has nothing to do with police departments or modern-day law enforcement.
The 10th Amendment to the Constitution granted states police powers, stating that any powers not specifically outlined as the responsibility of the federal government are reserved to the states. Since public health was not specifically mentioned anywhere in the Constitution, the primary responsibility of protecting public health was left to each individual state. This has fundamentally shaped how public health activities are carried out in the U.S. (mask mandates, anyone?) and how the nation responds to public health threats. States are individually responsible for public health regulations to protect their residents in ways such as investigations for infectious disease outbreaks, childhood vaccinations as a condition for school entry and involuntary detention of people with certain communicable diseases.
Jacobson v Massachusetts, & Other Stories
In 1851’s Commonwealth v Alger, Massachusetts Supreme Court Chief Justice Shaw affirmed that government interference with individual rights must be reasonable and must have some clear relation to a legitimate legislative purpose. This decision established police power’s ability to have a significant impact when protecting the common good.
Jacobson v Massachusetts is a landmark case in public health law, affirming that states can justify the restriction of individual liberties in order to protect public health. In 1905, Mr. Jacobson refused to vaccinate himself or his family due to a possible hereditary condition that would make the mandatory smallpox vaccination dangerous, despite the raging smallpox outbreak in Boston at the time. Jacobson argued that the fines or imprisonment for refusing vaccination was an invasion of his individual liberty and that the mandatory vaccination law was “unreasonable, arbitrary, and oppressive.” The Supreme Court decided that when the general public’s welfare is at great risk, individual liberties can be violated because preserving an individual’s rights does not outweigh public safety. The Supreme Court also ruled that mandatory vaccines are not arbitrary or oppressive as long as they do not go beyond what is reasonably required for public safety.
1944’s Prince v Massachusetts yet again strengthened state police powers. The Supreme Court found that child protection laws and mandatory vaccinations for school entry superseded parental authority. The Court determined that parental authority is not absolute, and can be restricted to protect a child’s welfare.
Police Power: Impacts on Public Health
In the mid-twentieth century, patient autonomy became central to healthcare as individuals began to have a greater say in care decisions. With this autonomy, patients had more authority to decide whether treatments were necessary for their health. This rise in patient autonomy has been cited in court decisions regarding individual rights and the health of the common good, limiting the strength of police power in the modern era. We have seen this scenario play out several times in the last few years with measles outbreaks across the country. Some parents are refusing to vaccinate their children, leading to an increase in previously well-controlled vaccine-preventable childhood diseases.
Police Power & Covid-19
Today, the Jacobson v. Massachusetts ruling is critical to the U.S. response to Covid-19. The affirmations of police power in Jacobson v. Massachusetts have been cited in court challenges to state and federal facemask orders and stay-at-home orders since March 2020. Court cases have also upheld states’ powers to involuntarily quarantine and isolate patients for public health purposes. The federal government has used its influence over interstate commerce to shape states’ responses to the pandemic via funding. States are relying on federal funding to exercise police power through contract tracing programs, COVID-19 testing, and PPE stockpiling.
Despite the centuries of justification that police power is an effective tool for combating public health threats, the rise of concern over individual rights and increased patient autonomy complicates the efforts to contain Covid-19 in the U.S.
Outside the Huddle
The Police Power | LSU Law Center