Giving Compass' Take:

• Katherine Drabiak explains the limitations on states' ability to respond to cases of communicable diseases like the ongoing measles outbreak. 

• How can funders help states work within the legal limits to best address communicable diseases? 

• Learn how laws can increase vaccination rates. 

As a professor who researches and teaches health law, public health law and medical ethics, I think it’s worth clarifying what states can or cannot legally do when responding to cases of communicable disease.

The law recognizes the right of an individual to refuse medical interventions. Health law has a strong history of recognizing bodily integrity: Adults can choose whether to accept or reject a proposed medical intervention, even in instances where public health authorities conclude a vaccine would benefit both the individual and society. The Supreme Court has recognized parents’ ability to direct the care and control of their children, including consenting or forgoing medical treatment for their child except in very specific circumstances.

The law is also quite clear that public health authorities and law enforcement may place restrictions on a person’s individual liberty – including religious liberty – in situations where a person’s actions pose a direct, immediate and compelling harm to others, such as using venomous snakes in religious worship or asserting a nonexistent “right” to use an illegal substance such as marijuana when operating a motor vehicle.

In public health law relating to communicable disease, this constitutes a very specific standard: A person must have a present disease, and this person’s actions must pose a direct threat to others.

For example, health officials may seek a quarantine order or civil commitment for a person with active tuberculosis who continues to frequent highly populated public spaces until the person is no longer contagious.

To promote vaccination for children, health officials may offer educational campaigns and set up free clinics for parents to bring their children. State laws may also mandate vaccines as a condition for school attendance, or require excluding unvaccinated children during an active outbreak at their school.

However, if states offer a religious or nonmedical exemption, courts have been clear that health officials and school officials do not have discretion to require the child’s parent to identify with an organized religion or reject the sincerity of the parent’s beliefs because this violates the First Amendment.

State public health officials have the duty to protect residents from illness and communicable disease, but these strategies must fall within appropriate legal parameters. Dismissing these legal boundaries or justifying unnecessary force not only undermines fundamental liberties, but in my view fuels parental and community distrust of health officials and sets back the ultimate goals of protecting the public.

Read the full article about legal limits on states' ability to respond to cases of communicable disease by Katherine Drabiak at The Conversation.