HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Sunday, August 26, 2012

When the Cure May be Worse than the Disease, Who gets Make the Final Decision: West Nile

A former director of Connecticut Department of Environmental Protection once told me that West Nile Disease would be easier to manage if the name was less exotic and people were less scared.  That was ten years ago—and the problem now isn’t the name.  Here in Texas we have several counties already declaring a public health emergency—and that’s during a terrible drought.  For those of you interested in following the outbreak and the response to it here is a link to the non-intuitively named Texas Department of State Health Services.  Here’s a map of where deaths of been reported.  So far, the rate of both illness and fatality are relatively low, but the response of afflicted communities to spray pesticides from the air raises a classic public health dilemma: weighing the needs of the few v. the needs of the many.   

From a public health point of view, the question is whether the cure for mosquito borne illness, spraying pesticides or even putting them on your body, is worse than disease.  The science on the danger to adults varies, but the EPA has warned that children are especially vulnerable because they are growing.  In regard to that, it’s instructive to remember the foundational case in public health: Jacobson v. Massachusetts.  In Jacobson , the Supreme Court recognized the existence of a Police Power that enabled states to require citizens to be vaccinated against small pox even when there was a genuine difference of scientific opinion on whether the danger of the vaccine justified the risk.   The Court said it would only interfere with a state’s exercise of its police power “Only if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”  

The problem of deadly mosquito borne diseases isn’t going away and is likely to become worse.   West Nile is only one of many similar viruses causing harm across the United States.  It also seems likely that we will soon be seeing U.S. acquired cases of malaria or perhaps even dengue fever along with other and until now exotic and deadly diseases.   It’s a situation worth keeping an eye on—and the Department of Defense, which is responsible for implementing the National Strategy on Biosurveillance is currently ramping up to do.

JSB 

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