76 Pages Posted: 25 Jan 2004
The U.S. government's homeland security project is a controversial one, largely because it has the effect of placing into conflict two sets of fundamental values: the public's health and safety versus personal and economic liberties. Resolving this conflict requires an understanding of the various interests, a recognition of key choices, and the development of a framework to balance individual and collective interests.
Part I of this paper sets forth a risk assessment of the threat posed by bioterrorism and concludes that the risk is sufficiently high to justify liberty-limiting powers to detect and respond to that threat. Such powers include vaccination, treatment, quarantine, nuisance abatements, and takings of private property. Part II argues that instead of focusing the debate on whether the government should have these powers, it is more appropriate, given that the risk from bioterrorism is stratified, to ask under what circumstances may an exercise of authority be justified. Part III examines two political theories, liberalism and communitarianism, as a way to test the assumption that state power may, in some circumstances, be justified. Though at first glance these two theories would seem to advocate distinct responses to the question of the legitimacy of state power, in reality, the exercise of public health powers to avert a considerable risk is justifiable under both theories. Finally, Part IV presents a framework for balancing competing personal and collective interests to address the question of when, that is, under what circumstances, state power should be exercised. This framework advocates the use of traditional powers to further the goal of public security while requiring compliance with predetermined standards and procedures.
Difficult trade-offs are an inevitability - at times, national security will be compromised out of respect for constitutional values, and at other times individual freedom and autonomy will be compromised out of respect for collective interests. Ultimately, the question as to how far personal and economic liberties can be circumscribed in the name of protecting the public's health and security is answered by way of categories. The first risk category involves targeted state action to avert a significant risk to the public's health - here, liberal and communitarian thought converge in supporting state action in such instances. The second risk category refers to state action exercised arbitrarily or pretextually - again, liberalism and communitarianism converge, but in rejecting the use of such power in the absence of risk. The final category involves state action to avert a moderate risk, that is the government reasonably believes the risk is real, yet hard evidence is lacking as to the nature and probability of that risk. It is in this category that hard trade-offs exist. The framework posed in this article is one way to facilitate those decisions which will allow the use of state power to safeguard the public's health while preventing state overreaching.
Suggested Citation: Suggested Citation
Gostin, Lawrence O., When Terrorism Threatens Health: How Far are Limitations on Personal and Economic Liberties Justified?. Florida Law Review, Vol. 55, p. 1105, 2003. Available at SSRN: https://ssrn.com/abstract=491544