Governments
often limit or restrict rights in the name of other priorities such as public health
or national security. The law provides for competing priorities, as some rights
are absolute and others are qualified. According the Attorney-General’s Department,
Absolute rights cannot be limited for any reason. No circumstance justifies a
qualification or limitation of absolute rights. Absolute rights cannot be
suspended or restricted, even during a declared state of emergency
(Attorney-General, 2012). Qualified rights however are rights that the state
can lawfully interfere under certain circumstances as laid down in the
constitution or as the need maybe. The law often seeks to balance its competing
priorities, whether ethical, social, economic, and even health. For example, in
the event of a contagious disease epidemic, the government may decide to restrict
your freedom of movement to ensure the general welfare of the public. What is
the appropriate role of governmental public health action, and to what extent
can a state legitimately restrict the liberties of its citizens in order to
serve the common good? These questions have formed the foundation of
controversies and long-running debates about public health in the United
States. Protection of health and safety are recognized as a core government
function. The government
has a responsibility to protect individuals from unhealthy environments,
whether the sources of health risks are natural (e.g., biological disease
outbreak) or created by people or organizations, but public health actions are
sometimes labeled as unbefitting and impertinent.

Debates
over the scope of public health and its sometimes competing priority of individual
human rights have been around since the early nineteenth century. The many
scientific advances over the last century has dictated the way health epidemics
are handled. “This ‘bacteriological revolution’ transformed our understanding
of how disease spreads and laid the foundations for a new public health ethos”
(Baldwin, 1999). In her book Betrayal of
Trust: The Collapse of Global Public Health, author Laurie Garret states
that many early advocates of public health such as Mitchell Prudden and Hermann
Biggs, defended the validity of interference with the law in the face of public
health threats (Garret, 2000). Garret quotes Biggs, “Everything” when talking about
the efforts to reduce the effects of the tuberculosis outbreak (Garret, 2000). Early
advocates argued that deplorable health situations like tuberculosis required
drastic measures. Public health officials were given the freedom to address issues
with, sometimes, very invasive approaches. In her book Garret commented “It was
a declaration of war, not just against tuberculosis but against any group or
individual who stood in the way of Public Health” (Garrett, 2000). In his 2006
publication State of Immunity: The
Politics of Vaccination in Twentieth-Century America, author James Colgrove
talks about the government’s efforts to control disease outbreak by introducing
procedures such as mandatory; vaccines, quarantines, and even surveillance. The
aggressive approaches often times warranted negative reactions and resistance
from the public. Colgrove uses and example from the 1890’s in Milwaukee, WI stating
“for example, forceful application of the State’s mandatory vaccination law
sparked riots among the city’s large German immigrant population in the 1890s.
Health officers who went into neighborhoods to vaccinate residents and remove
sick individuals to quarantine hospitals were greeted by angry mobs throwing
rocks” (Colgrove, 2006). Many laws in public health law are legislated and enforced
under what is known as the state’s “police power.” In United States
constitutional law, police power is the capacity of the states to regulate
behavior and enforce order within their territory for the betterment of the
health, safety, morals, and general welfare of their inhabitants (Britannica,
2016). In his earlier 2005 publication Manifold
restraints: liberty, public health, and the legacy of Jacobson v Massachusetts,
Colgrove talks about the 1901 small pox epidemic in Massachusetts. The epidemic
proposed a legal challenge to the states vaccination law. Colgrove references
the historic ruling by the US Supreme Court in the case of Jacobson versus
Commonwealth of Massachusetts, which established the government’s right to use
its ‘police powers’ in order to control epidemic disease. The Court affirmed
the right of the people, through their elected representatives, to enact
“health laws of every description to protect the common good” (Colgrove &
Bayer, 2005). In the 1985 Hofsta Law Review AIDS
and quarantine: the revival of an archaic tradition, author Wendy Parmet comments
that US courts almost always deferred to public health authorities that have
deprived individuals of their liberty in the name of public health. “It is
unquestionable that the legislature can confer police powers upon public
officers for the protection of the public health. The maxim Salus populi suprema lex is the law of
all courts in all countries. The individual right sinks in the necessity to
provide for the public good” (Parmet, 1985). In 1966 a California court
declared that “health regulations enacted by the state under its police power
and providing even drastic measures for the elimination of disease…in a
general way are not affected by constitutional provisions, either of the state
or national government” (Leishman, 1989).

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Is
it appropriate for the State to impose restrictions on individuals for the sake
of public welfare? Supporters of the “harm principle” articulated in 1859 would
argue no. The harm principle holds that the actions of individuals should only
interfere with the freedom of others to prevent harm to other individuals
(Hamowy, 2008). Supporters of the harm principles would argue that the government
should educate, but not enforce.  Some individuals argue that mandatory enforcement
of public health measures is both an action of limiting or undermining individual
rights and does not produce any significant or desired effect, sometimes produce
the opposite of the desired effects; others believe that the inevitable
conflict between public health measures and human rights must be acknowledged
and dealt with according to the situation. It is my personal belief that there
are certainly situations when obligatory actions are the only reasonable
option—but these actions should always be the last resort when all
noncompulsory measures fail.