In this paper the author reviews the constitutional history of the courts' attempts to check the powers of the public health department. He demonstrates how ineffective and inconsistent constitutional review has been, and suggests that adequate review criteria have not emerged. The author shows that, whether the courts are applying First, Fourth, or Fourteenth Amendment standards, ultimately they are highly deferential to public health officials. Then he carefully examines the key concepts in the Americans with Disabilities Act (ADA) as they apply to communicable disease. He reveals Congress' clear intention to include communicable disease, even asymptomatic infection, as a disability. The author also defines and analyzes the new "direct threat" standard in the ADA, particularly its application to exercise of public health powers under Title II (public services) of the Act. Finally, he proposes a standard of review under the ADA for the future regulation of public health powers.
3 Health Matrix 89-126 (1993)
Scholarly Commons Citation
Gostin, Lawrence O., "The Americans With Disabilities Act and the Corpus of Anti-Discrimination Law: A Force for Change in the Future of Public Health Regulation" (1993). Georgetown Law Faculty Publications and Other Works. Paper 756.