Tuberculosis and the Power of the State: Toward the Development of Rational Standards for the Review of Compulsory Public Health Powers
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. The author first sets out the central epidemiological and biological aspects of tuberculosis to demonstrate the strength of the governmental interest in curtailing the epidemic. Second, he examines the interventions of testing, screening, and confinement of persons with tuberculosis, where he focuses 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, he examines the exercise of traditional public health powers of detention, compulsory treatment, and directly observed therapy, where he discusses several conceptual dilemmas that continue to thwart scholars and the judiciary relating to the appropriate boundaries for governmental intervention. The author concludes 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. He advances 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. He states that 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.
2 U. Chi. L. Sch. Roundtable 219-277 (1995)
Scholarly Commons Citation
Gostin, Lawrence O., "Tuberculosis and the Power of the State: Toward the Development of Rational Standards for the Review of Compulsory Public Health Powers" (1995). Georgetown Law Faculty Publications and Other Works. 754.
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