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Unpublished Paper
Is State Power to Protect Health Compatible with Substantive Due Process Rights?
ExpressO (2010)
  • Allan J. Jacobs

Public health laws may mandate drastic limitations on individual liberty, such as forced medication and loss of liberty. Thus, there is a tension between such laws and guarantees of liberty such as the Due Process clauses of the Fifth and 14th Amendments to the United States Constitution. The Supreme Court has resolved this tension in favor of one or the other of these legal principles, depending on the facts and issues involved. Nevertheless, Supreme Court jurisprudence is internally consistent. The Court has applied a level of scrutiny that, while rigorous, is more flexible than strict scrutiny. I denote this “enhanced public health scrutiny.” Applying this scrutiny, the Court will uphold public health legislation if it protects an inchoate class of people who may not yet be identifiable, who will incur a specific disease or injury absent the law, but who will not experience this disease or injury if the law is enforced. If this doctrine were explicit, it would constitute a clear guideline to courts seeking to balance health and liberty concerns. This guideline would be consistent with current case law, and would not impact on law affecting reproductive liberty.

  • Public health,
  • police power,
  • substantive Due Process
Publication Date
August 10, 2010
Citation Information
Allan J. Jacobs. "Is State Power to Protect Health Compatible with Substantive Due Process Rights?" ExpressO (2010)
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