Home > 2015 SD Legislative Session > More on HB1058, the contagious disease control quarantine bill and libertarianism

More on HB1058, the contagious disease control quarantine bill and libertarianism

January 17, 2015

orthoscrub2Earlier I noted that the House Health and Human Services committee will have a public hearing on HB 1058 in their Jan 20th meeting. Since posting that blog article I’ve had a few emails and phone calls from people ready to take away my libertarian card for being a big government advocate. OK, whatever. In this blog I have to step back at times and look at bills as unbiased as possible so I can hopefully help others understand what legislation is going through Pierre. Here is a different look at the bill in question. I’ve included some problems with the bill from a civil liberties perspective, and some other thoughts thrown in.

The first thing I would like to note is that HB 1058 is not a new law. Rather it is updating old law to modern times. The case can possibly (probably) be made that this bill will make the Department of Health much more powerful when dealing with disease control. At the time these laws were written Tuberculosis was the big disease of the day. If legislators at that time had foreseen the plethora of future potential communicable diseases that would come in the future I have no doubt it would have been written more expansive. I’m not saying that is right or wrong, just stating what likely would have happened.

One portion of the bill appears to have some people worked up enough to send me emails filled with colorful metaphors. Section 15 of the bill reads as follows (strikeouts means this bill would remove those words from the current law, underlines means words being added to current law):

 Section 15. That § 34-22-18 be amended to read as follows:
34-22-18. Any person in the State of South Dakota state reasonably suspected of being infected withhaving active tuberculosis, any category I reportable disease, as determined to be a reportable disease pursuant to § 34-22-12 and any rule promulgated pursuant to that section, or any disease or condition which is the subject of a declared public health emergency pursuant to § 34-22-42, shall accept necessary diagnosis or treatment, or both, and any. Any person who intentionally refuses to accept such the diagnosis or treatment, or both, or who fails to follow the reasonable and necessary directives of the State Department of Health department issued for the protection of other persons, is guilty of a Class 1 misdemeanor.

The current law basically says that anyone suspected of being infected with tuberculosis shall accept diagnosis or treatment. The bill would add “any category I reportable disease”… or “any disease or condition which is the subject of a declared public health emergency”. If anyone refuses this diagnosis or treatment they can be found guilty of a Class 1 misdemeanor. True, this is a huge expansion of what this section of the code applies to. If abused it does mean the Dept of Health can try forcing people to get tested for any number of diseases and take treatments; including possibly common strains of flu. If that were to happen that would be bad and definitely an overreach of the department. But in reality this expansion of wording has been added to deal with the recent Ebola incidents, and other recent outbreaks that could potentially have spread to South Dakota.

One thing this bill doesn’t appear to do (which is being claimed in emails) is forced vaccinations. I don’t see anything in this section that leads me to believe it can be used as a legal basis for the Department of Health to force any vaccinations. The provisions of this section apply to people who have (or are reasonably suspected to have) already caught a communicable disease. It is way too late for a vaccination at that point.

The interesting question for me from a libertarian standpoint as to this section would be: can the State use force to ensure that citizens take medicine that would potentially save their life after being infected with a disease. Personally I would say no, the state can’t do that. Unfortunately I do believe this portion of the law is saying that the Dept of Health has the right to treat (and probably quarantine) people with certain diseases. i believe that would be wrong, but I understand I am likely in the minority with that opinion so I really am not going to make too big of a deal about that at this time (there are so many other liberty-related issues that are higher priorities to me that fall within my domain of knowledge).

But at the same time there is the question of whether that person then has the right to be in public, knowing they have a contagious disease. In a pure libertarian world the answer would be simple. The non-aggression principle would not allow a person to go into public knowing they have (or likely have) a condition that would intrude upon the rights of others (knowingly passing on a potentially lethal disease would definitely fall against the non-aggression principle from my viewpoint). Since we do not live in a world filled with libertarians following the non-aggression principle, this issue must be looked at differently. So then does a person have the right to go into public knowing they are very likely going to give others a deadly disease: No. Unfortunately this is a time I will have to side with government. Knowingly going into public with a deadly disease would be the same attempted murder (or the same as completed murder if a person dies after receiving the disease from someone disregarding the dangers of their disease). Murder is definitely within the jurisdiction of government, and knowingly passing on a deadly disease should be treated as such. Let me clarify though, this does not apply to common diseases such as the cold or the many flu strains that exist. I am talking about diseases such as Ebola and such.

To kind of summarize what I feel on this:

  • Mandatory vaccinations do not appear to be authorized by Section 15 of this bill.
  • The state should not be forcing people to accept treatment for any disease. This bill does appear to give the Dept of Health that power. I disagree with giving them that power, but I have other higher priorities to focus on in the name of liberty.
  • The state does have the right to prevent anyone with a deadly disease from being in public. Sadly we do not live in a world of libertarians following the non-aggression principle. Therefore it is necessary to make it a law that people cannot knowingly pass on deadly diseases in public.
  • I still don’t see this bill as a big deal like some people are making it. This is not a new law. It is updating old law to new times. Yes, some of it is flawed from a libertarian standpoint, but at least it has some check and balance built into the new bill through the court system (see my original post for that portion of the bill).

I think I’ll close this post here and see if I will still call my blog libertarian-leaning come morning. Maybe I’ll switch to calling myself a liberty-leaning South Dakotan and drop the word “libertarian”, which has become distorted since so many populist groups have taken the word over for their own agendas….

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