Except that this assumption is not always true. As a recent visit to Kalaupapa on Moloka`i reminded me, sometimes the state balances the public health against the consent of the individua
l -- and public health comes out on top.The tragic history of Kalaupapa began innocently enough. In 1865, concerned for the welfare of his people in the face of a (then-termed) leprosy outbreak, King Kamehameha V passed into law an Act to Prevent the Spread of Leprosy. The Act intended to clarify that leprosy was included in an existing civil code provision that stated “when any person shall be infected with the small-pox, or other sickness dangerous to the public health, the Board of Health, . . . may, for the safety of the inhabitants, remove such sick or infected person to a separate house. . .” The Act expanded on the idea of a “separate house” and authorized the use of government land, or the purchase of new land, to establish a site for the “isolation and seclusion of such leprous persons. . .” It also gave the power to the Board of Health to confine, and the Police or District Justice to arrest “any person alleged to be a leper.” These measures, even forty
years later, were argued to be absolutely necessary to protect the health of the public.On January 6, 1866, the first twelve people, all Native Hawaiian, were exiled to Moloka`i. There were no services provided by the State, and by one account:
patients [were] rounded up and torn from their families, caged in cages like animals, loaded on boats whose Captains braved the scourge, and the sea, and upon arrival, dumped the lepers off the coast of Molokai. They were expected to swim ashore and make a home for themselves with virtually no help from the outside world. Some of the lepers actually died in the water trying to swim ashore.
During the 
next one hundred and three years, approximately 8,000 people were sent to the Kalaupapa peninsula. The conditions there were dismal, brightened only by the soon-to-be-saint Father Damien, who in caring faithfully for his charges, contracted the disease himself. Mandatory isolation remained the law through the monarchy, annexation, and even statehood. The isolation law was not abolished until 1969. The cure for leprosy was discovered in 1941.
Of the thousands of people sent to Kalaupapa, 23 remain livi
ng today. Of the dead, nearly 75%, or 6,700 people, rest in unmarked or unidentifiable graves. In 2008, the State of Hawaii issued a formal apology. This year, for the third consecutive legislative session, a bill has been introduced that would make a national monument at Kalaupapa to honor those that were “forcibly relocated” there.
As I toured the peninsula I felt secure believing the days of the state forcing isolation upon people suffering from misunderstood diseases were behind us. On my return home, I discovered that while our moral compass may reject such public health strategies, our society has yet to bring our laws into compliance.
next one hundred and three years, approximately 8,000 people were sent to the Kalaupapa peninsula. The conditions there were dismal, brightened only by the soon-to-be-saint Father Damien, who in caring faithfully for his charges, contracted the disease himself. Mandatory isolation remained the law through the monarchy, annexation, and even statehood. The isolation law was not abolished until 1969. The cure for leprosy was discovered in 1941.Of the thousands of people sent to Kalaupapa, 23 remain livi
ng today. Of the dead, nearly 75%, or 6,700 people, rest in unmarked or unidentifiable graves. In 2008, the State of Hawaii issued a formal apology. This year, for the third consecutive legislative session, a bill has been introduced that would make a national monument at Kalaupapa to honor those that were “forcibly relocated” there.As I toured the peninsula I felt secure believing the days of the state forcing isolation upon people suffering from misunderstood diseases were behind us. On my return home, I discovered that while our moral compass may reject such public health strategies, our society has yet to bring our laws into compliance.
Currently, Title 42 United States Code Section 264 charges the Secretary of the Department of Health and Human Services (HHS) with “preventing the introduction, transmission,
and spread of communicable diseases from foreign countries into the United States and within the United States and its territories/possessions.” The Centers for Disease Control and Prevention (CDC) is delegated the authority to “detain, medically examine, or conditionally release persons suspected of carrying a communicable disease.” Under this regime, both isolation (separation of those suffering from a disease from others to stop its spread) and quarantine (isolating those that are not yet sick but may have been exposed) of the following diseases are permitted: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, and severe acute respiratory syndrome (SARS). New diseases may be added at any time by executive order. This regime sounds dangerously like the one in place in Hawai`i in 1865.
Perhaps some comfort (or perhaps more terrifying), the power to isolate and quarantine is also dealt with on the state level pursuant to police powers. The states have a wide range of legal regimes and protections for civil liberties in place. As described by the CDC:
and spread of communicable diseases from foreign countries into the United States and within the United States and its territories/possessions.” The Centers for Disease Control and Prevention (CDC) is delegated the authority to “detain, medically examine, or conditionally release persons suspected of carrying a communicable disease.” Under this regime, both isolation (separation of those suffering from a disease from others to stop its spread) and quarantine (isolating those that are not yet sick but may have been exposed) of the following diseases are permitted: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, and severe acute respiratory syndrome (SARS). New diseases may be added at any time by executive order. This regime sounds dangerously like the one in place in Hawai`i in 1865.Perhaps some comfort (or perhaps more terrifying), the power to isolate and quarantine is also dealt with on the state level pursuant to police powers. The states have a wide range of legal regimes and protections for civil liberties in place. As described by the CDC:
State and local laws and regulations regarding the issues of compelled isolation and quarantine vary widely. Historically, some states have codified extensive procedural provisions related to the enforcement of these public health measures, whereas other states rely on older statutory provisions that can be very broad. In some jurisdictions, local health departments are governed by the provisions of state law; in other settings, local health authorities may be responsible for enforcing state or more stringent local measures. In many states, violation of a quarantine order constitutes a criminal misdemeanor.While we may feel that our societal moral code would reject such treatment of the sick, and particularly so in the hands of a new administration, our laws allow much more in this regard than most of us our comfortable with. Before we reach a crisis where little argument is possible in the face of panic, it is time to engage a debate on the balance between the protection of the public health and individual rights.
(All photos, except Kamehameha portrait in the public domain, are © Kathleen Doty 2009).
