Should the government infringe on personal liberty to protect public health?

· Under what circumstances can we justify mandatory quarantines?
· Should we require genetic testing for treatable conditions?
· Should we prosecute those who knowingly spread dangerous STDs?
· How important is the Bill of Rights during a public health crisis?

Because we of YSR aren’t necessarily experts in every field, we occasionally seek guidance from those who are more qualified to address a particular topic. This week, we welcomed members of the Yale Public Health Coalition to help us address this public health-oriented question.

The first question we tackled tonight was the constitutionality of mandatory quarantines. Would a quarantine violate the First Amendment and its provision of the right to assemble? Most of the participants seemed to agree that the purpose of the law, not its letter, is more important in this case—and its purpose could admit the exception of crisis circumstances. However, we also feel that there is great value in not restricting the liberty of individuals, and no law should be written with the express purpose of allowing such restriction (i.e. a mandatory quarantine). But no one disputed that some provision must be in place to allow the protection of the population, were it ever gravely threatened by an epidemic.

Neil proposed that the provision should not be explicit—quarantines should never be legally permitted, but Congress should have the power to excuse such extreme and illegal action after the fact if it deems the action to have been necessary. This scenario has several advantages. First, it does not allow the violation of personal liberty within the confines of the law. Second, it permits appropriate action to be taken under appropriate circumstances. Third, it subverts the panic phenomena—because public officials are judged after the crisis for actions taken during it, the public upon reflection will scrutinize the deprivation of liberty more carefully than it would be inclined to do in the midst of a national scare.

One objection to Neil’s proposal came from Phil, who argued that endorsing the breaking of laws could create a slippery slope. But in the case of a public health crisis, as Nate B. observed, government agencies may be more trustworthy than usual, since their incentive structure in such a situation is more closely lined with that of the general population. Still, we need to protect ourselves against the potential consequences of a mass panic, which could have drastic consequences for our system of liberties.

After solving the quarantine dilemma, our discussion moved to the prosecution of knowing STD transmission, particularly HIV/AIDS. Of course, knowingly infecting a sexual partner with HIV qualifies as reckless endangerment. However, the execution of this law is challenging (as shown in the case study of the Ugandan law) and has the potential to emphasize a stigma against HIV positive individuals. Furthermore, engaging in unsafe sex is a choice, which brings risks with it, and both partners may not be without fault. Perhaps it would make more sense, as Elah suggested, to apply civil (not criminal) law in these cases.

The final interest of our discussion was mandatory genetic testing. By subjecting the population to genetic tests, we might be able to decrease the overall cost of medicine (thanks to preventative care possibilities among other factors). We could also avoid the danger of, for example, airline pilots at high risk of seizures (I believe the danger there is obvious).

But no one was able to defend an argument in favor of mandatory testing rather than optional, subsidized (free) testing. Most people would voluntarily undergo these tests so as to increase their own quality of life—reminiscent of the quarantine discussion, individuals’ incentives are closely aligned with those of the general population. Of course this possibility essentially presupposes the application of a universal health care system—and that is a topic for another day.