Balancing Individual Rights and National Health Security

Balancing Individual Rights and National Health Security

In 1879, Congress established the National Board of Health (NBH) to lead the Nation’s fight against the spread of infectious diseases. In 1883, they killed it. The NBH, in its work to stop the spread of infectious diseases, was seen as encroaching on states’ rights, individual rights, and interstate commerce. Though the NBH is gone, tension over the federal government’s role in health security remains. And it is that tension, or our right to have that tension, that makes America great – but also makes it vulnerable.

It was Ben Franklin who famously said, “[t]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Franklin’s quote was referencing a tax dispute in Pennsylvania, but his words serve as a useful segue to the challenge at hand.

"Liberty tends to matter a bit less when the Grim Reaper is on the doorstep."

How much essential Liberty are Americans willing to sacrifice to gain health security?

The National Health Security Strategy (NHSS), published by the U.S. Department of Health and Human Services (HHS) opens with, “[n]ational health security is a state in which the nation and its people are prepared for, protected from, and resilient in the face of incidents with health consequences.” Powerful words, yet somewhat impotent. How effectively can the federal government prepare and protect people from health consequences without infringing upon individual rights? And how does it prepare the Nation for and protect it against the next pandemic or bioterrorism attack without encroaching on states’ rights?

The reality is that, the next pandemic is not here-and-now, and individuals and states are generally unwilling to –in the words of Franklin– “…give up essential Liberty, to purchase a little temporary safety…” when the threat is merely potential. Liberty tends to matter a bit less when the Grim Reaper is on the doorstep.

Which brings us back to the question at hand, but slightly amended. How much essential Liberty are Americans willing to sacrifice – before the pandemic arrives – to gain health security?

To better understand the liberty challenges to health security, there are critical nuances between public health and medicine (healthcare) that deserve explanation.

Public Health vs. Healthcare

In 1976, the Niagara Falls Gazette began reporting on toxic chemicals buried beneath a neighborhood called Love Canal. The investigation revealed that the neighborhood had been built atop 22,000 tons of toxic waste. The neighborhood was evacuated in 1976, and in 1978, President Jimmy Carter announced a federal health emergency that authorized federal disaster support.

The incident was one in a series of environmental disasters that had profound public health consequences. And time would prove that those public consequences would become individual medical and psychological issues for many, as the rate of miscarriages, birth defects, cancer, and other disease affecting rose exponentially higher than surrounding areas. Forty years later many are still paying a personal price physically, emotionally, and financially – from the health effects of a public health emergency.

In America, public health is considered a government responsibility, and most Americans consider it a right. That is, people have the right to breathe clean air, drink clean water, and eat safe meats and vegetables – regardless of state lines. But, what about healthcare, is it not a right? And whose responsibility is it? Let’s just say the debate lacks consensus. 

In explaining the difference between public health and healthcare, the Harvard T.H. Chan School of Public Health states that that public health emphasizes, “disease prevention and health promotion for the whole community,” whereas healthcare emphasizes, “disease diagnosis, treatment, and care for the individual patient.” Disease prevention for the whole community vs. diagnosis, treatment, and care of the individual.

"Simple enough, right? Not when that intersection is a roundabout."

So, it would appear that America’s health security conundrum lies at the intersection where medical conditions affecting “individual patients” collide with diseases that have the potential to spread to the “whole community." Simple enough, right?

Not when that intersection is a roundabout.

Cancer is a healthcare issue, because it is a disease diagnosed within individuals in the community but not necessarily the whole community. Cancer patients are treated individually by doctors using medications and regimens tailored to their needs, and they are charged a fee for service. Maybe insurance pays the bill, maybe not. And air pollution, of course, is a public health issue because the whole community breathes the same air – right?

Government works to provide clean air through blanket regulations that benefit all, and people do not pay a direct fee to purchase clean air. But, if toxins in the air, soil, and water are scientifically proven to be a contributing cause of the cancers affecting many individuals, where does public health end and healthcare begin? When do failed regulatory efforts lead to individual medical conditions that require healthcare services?

When it comes to health security, preparedness and protection are complicated cookies. Americans have individual rights that preclude government from forcing healthcare measures upon them, and states have rights intended to hold the federal government at arms reach – until an issue crosses state lines.

Individual Rights

On September 30, 2014, the Centers for Disease Control and Prevention (CDC) announced that a patient, Eric Duncan had been diagnosed and was being treated for Ebola in Dallas, Texas. Ebola is an infectious disease that affected Mr. Duncan, an individual who has rights under the Fourth, Fifth, and Fourteenth Amendments of the Constitution.

The Fourth Amendment prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. The Fifth and Fourteenth Amendments contain a due process clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.

Quarantine and isolation are perhaps the ultimate invasions of individual privacy by the state. Yet constitutionally, it’s an authorized and fluid intrusion, defined by the circumstances at hand. It was Mr. Duncan’s choice to seek medical care at Texas Health Presbyterian Hospital. And, given the initial diagnosis (Flu-like symptoms) and even if the hospital had wanted to admit him, he retained the individual right to be discharged against medical advice. Provided, he was alert and oriented to make the decision.

But, Ebola is also a communicable disease, meaning it can be transmitted to others, which potentially puts the whole community at risk. Yes, there is a point where the rights of individuals collide with those of the public.

When Mr. Duncan returned to the hospital days later – by his own choice – he was diagnosed with Ebola. He could just as easily chose to take the bus to the mall or a plane to New York. That said, given his choice to return to the hospital, the new diagnosis of Ebola – a communicable disease – and the potential for transmission to others and even if he had been alert and oriented enough to do so, he lost his individual right to be discharged against medical advice. This was a public health decision, a decision that protected the community at large.

Was this a lawful exercise of isolation? Yes, but could he be treated against his will? That’s another issue altogether. Under the Emergency Medical Treatment and Labor Act (EMTALA), Medicare-participating hospitals (such as Texas Health Presbyterian Hospital) are required to provide stabilizing treatment for patients with emergency medical conditions upon request.

Since Mr. Duncan was incapacitated in a private hospital in Texas, does his arrival at the emergency department warrant a “request” for treatment? And if not, whose authorities rescinded his individual rights, those reserved to the State of Texas or the powers delegated to the federal government by the Constitution?

National Health Security Strategy (NHSS) Implementation Plan Cover Image

States' Rights

The Tenth Amendment of the U.S. Constitution states, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Does the Constitution explicitly delegate public health powers to the federal government? No, but…

The Commerce Clause of the Constitution gives Congress the power, “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Do infectious diseases have the potential to be transmitted “among the several states?” Sure, but is such transmission the equivalent of Commerce? I mean, diseases are not being manufactured, bought, and sold, are they? In the bioterrorism era, they may be. Notwithstanding, the U.S. Supreme Court has affirmed on numerous occasions that the Commerce Clause applies to public health.

With such decisions and through the Public Health Service Act (PSA), Congress has delegated to the Secretary of HHS the authority to “take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.” Take note of the terms prevent, from, into, and between, and the absence of the term within.

So, if “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States…,” Congress has the explicit power "[t]o regulate Commerce with foreign Nations, and among the several States…," and Congress delegated the authority to the Secretary of HHS to “take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states,” the question begs, what about within the states? What about Texas, a state not known to appreciate federal intervention in its affairs?

When it comes to Mr. Duncan, the authority to rescind his individual rights rested solely with Texas. The Commerce Clause was not in play because he had not crossed state lines since becoming symptomatic and, therefore, contagious.

Is there a difference between an infectious disease and a communicable disease? Does one have to be symptomatic to be contagious? Well, that's another story...

The Conundrum

As we stated early on, the NHSS is concerned with preparing the nation and its people for and protecting them from incidents with adverse health consequences. But, given the Constitutional rights reserved for the people and the states, when can the federal government intervene? Can the federal government only “take measures to prevent the entry and spread of communicable diseases… between states,” after the infected individual crosses state lines? If so, would that not be a defensive strategy as opposed to an offensive strategy? How does the Nation protect its citizens' health through preventative or protective strategies when it cannot play offense?

Does the term prevent mean that the federal government can preempt Texas’ authority if there is a threat that an infected individual might cross state lines? Could they stop someone from crossing a state border if the person were on foot, walking on the shoulder of a state road? Would it be different if the person boarded a train or plane, which are federally-regulated modes of transportation? What if they were driving a private vehicle on a federally funded interstate highway?

There are more questions than answers, and few situations are identical. Maybe that is why America has federal courts. For America to retain what has made it so successful, it must embrace and nurture the necessary tension that exist between federal primacy, states’ rights, and individual rights.

For it is that tension, or our right to have that tension, that makes America great – but also makes it vulnerable.


Karl Schmitt, MPA

Karl Schmitt, MPA

Karl is the Passionate Founder & CEO of bParati. He is on a mission to build a national network of effective, sustainable healthcare coalitions. More...

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