Quiana BradshawQuiana Bradshaw

August 17, 2011August 17, 2011

Chapter 3, “Regulating Public Health:

Principles and Application of Administrative Law”

Chapter 8, “Legal Counsel to Public Health Practitioners”

Unit 2 Chapter Readings

Many areas of constitutional law can be

examined through public health. Understanding constitutional federalism is central to understanding the public health powers of the state and federal governments. Generally, the power to protect the public's health is reserved to the states under the Tenth Amendment. However, the power of Congress under the Constitution allows extensive federal regulation for the public's health. Taxing, spending, and the regulation of interstate commerce are all relevant to public health law.

Regulating Public Health: Principles and Application of Administrative

Law”

In addition to concepts of federalism, the

constitutional limits on governmental power (to protect individual liberties) produce many cases in public health law. The constant quest of students of public health law is to determine the point at which government authority to promote public health should yield to individual rights claims. How much freedom should individuals forgo to achieve safety and a higher quality of life for the community? Public health powers including testing, vaccination, physical examination, treatment, isolation, and quarantine all involve the restriction of individual liberties.

Regulating Public Health: Principles and Application of Administrative Law”

Economic rights are also affected by public

health measures such as licensing health care providers, inspecting food establishments, pollution control, and nuisance abatement. In many cases, the courts uphold the power of the government to take steps to advance population health. Compulsory vaccination has long been upheld, as have drug testing, the closing of public bath houses, and the regulation of gun manufacture and sale.

Regulating Public Health: Principles and Application of Administrative Law”

Yet, there are clearly limits to the government's

power, even when forwarding a goal as important as public health. Governmental restrictions on advertising dangerous products has been overturned as a violation of the freedom of speech, housing and building code inspections may require search warrants, and fair procedures are required for restricting liberty in the cases of quarantine or civil commitment of the mentally ill. Public health law allows the tenets of constitutional law to be reinforced through the examination of different cases and materials than generally appear in most constitutional law classes.

Regulating Public Health: Principles and Application of Administrative Law”

In addition to constitutional law and

administrative law, public health law allows for the exploration of tort law as an instrument of indirect regulation. The creation of private rights of action in the courts can be an effective means of regulating for public health. Civil litigation has been used to redress many different kinds of public health harms, including air pollution, exposure to toxic substances, unsafe medicines or medical devices, hazardous products, and defective consumer products.

Regulating Public Health: Principles and Application of Administrative Law”

Public health law allows for a review of theories

of liability. Negligence, private nuisance, and strict liability have all been used in the context of public health. Professors can use public health-oriented cases to explore the effects of tort litigation on changing the behavior of manufacturers and compensating victims. Firearm litigation gives a concrete example of the use of theories such as design defect and failure to warn as well as common defenses including assumption of risk and common use.

Regulating Public Health: Principles and Application of Administrative Law”

Defining health law and public health law

depends on whom you ask. Health law is concerned with the legal aspects of promoting the quality, organized delivery, cost effective, access to health care, while protecting the human rights of those who are provided care within the health care system.

Regulating Public Health: Principles and Application of Administrative Law”

“Public health law is the study of the legal

powers and duties of the state to assure the conditions of people to be healthy (e.g., to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health.”

Regulating Public Health: Principles and Application of Administrative Law”

Public health law is that branch of

jurisprudence, which treats of the application of common and statutory law to the principles of hygiene and sanitation science.”

Regulating Public Health: Principles and Application of Administrative Law”

Perhaps Lawrence Gostin said it best, “ Public

health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to ensure the conditions for the people to be healthy (to identify, prevent, and ameliorate risks to health in the population), and of the limitations on the power of the state to constrain for the common good the autonomy, privacy, liberty, propriety, and other legally protected interests of individuals.

Regulating Public Health: Principles and Application of Administrative Law”

“Laws (e.g., constitutional, statutory, regulatory,

judicial, and policy) or legal processes at every level of government (e.g., federal, tribal, state, local) that are primarily designed to assure the conditions for people to be healthy.”*

Public health laws create obligations for government to act, but also limit the government’s use of power through structural and rights-based constitutional limitations such as:1. Separation of powers2. Federalism3. Individual rights

What is Public Health Law?

The legal foundation for public health practice

comprises at least 3 elements: legal authorities, skills to apply them, and information for those who design and implement public health laws. Legal authorities—constitutional and statutory laws, regulations, administrative rules, and case law—enable government health agencies and private health organizations to take defined actions. Healthy People 2010 (objective 23-15) recommends that public health laws be examined and improved to meet evolving health threats

Legal Counsel to Public Health Practitioners”

Three key groups need law-related skills:

public health practitioners, elected and appointed government policymakers, and attorneys who counsel public health practitioners and who interpret and adjudicate legal issues. In addition, all 3 groups must have ready access to knowledge about the impact of laws on the health of the public and about “best practices” for translating laws into effective public health interventions.

“Legal Counsel to Public Health Practitioners”

The Public Health Law Collaborative and the

CDC's Public Health Law Program are working to strengthen the legal foundation for public health practice, using the approach outlined here. Among other early actions, the Association of State and Territorial Health Officers has surveyed its members to learn how they access and use legal information. The CDC supports the extramural Center for Law and the Public's Health in Baltimore, MD, and Washington, DC, and funds peer-reviewed research on the impact of laws.

Legal Counsel to Public Health Practitioners”

For ten years prior, the yellow fever had raged almost

annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia

Yellow Fever

Are there any questions that you would like to

ask?

Questions

American Health Lawyers Association (2011). Teaching Public Health

Law. Retrieved August 17, 2011 from http://www.healthlawyers.org/RESOURCES/ACADEMICS/LAWPROFESSORS/ADVICECOLUMNS/Pages/Teaching_Public_Health_Law.aspx

Frederick E. Soto, Jr. (2009). Public Health Law. Retrieved August 17, 2011 from http://webpages.charter.net/oldpostpublishing/oldpostpublishing/Section%202,%20Principles%20of%20Public%20Health/Sect%202,%20Public%20Health%20Law%20by%20Soto.pdf

Mouton & Matthews (2001). Strengthening the Legal Foundation for Public Health Practice: A Framework for Action. Retrieved August 17, 2011 from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1446781/

The Medical & Public Health Law Website (2011). Public Health Law as Administrative Law. Retrieved August 17, 2011 from http://biotech.law.lsu.edu/manual/adlaw-intro.htm#_Toc74926423

References