Robert Gatter
Public Health Law
Fall 2010
Doctrinal Lessons
Basic Constitutional Principles Applicable to the Exercise of State Authority
General Doctrinal Principles
Police power is broad
i. 3 rationales of exercising police powers: These are STATE INTERESTS (p. 61)
1. protecting people from themselves (motorcycle helmets)—paternalism
2. protecting others from harm people can do to them (secondhand smoke).
a. THIS IS BETTER ARGUMENT THAN 1 BECAUSE IT SELLS BETTER.
3. protecting interests of polity itself
ii. what it covers:
1. Examine and quarantine people, even involuntarily in some cases
2. Require medical examinations or vaccinations as a condition of school attendance
3. Compulsory examination of people getting married
4. License for people engage in occupations where disease is spread
5. Even fluoridating public water supply
But, states cannot abrogate individual Constitutional rights—DP and EP
i. Substantive Due Process (SDP)—Elements
1. State action
2. Liberty interest/ property interest (such as a license to practice or having pond on property)
a. SS applies
i. General libertiesàmust be fundamental (essential to our nation’s liberty; deeply rooted in our nation’s history and traditions)
1. Abortion
2. Right to control body
3. Freedom of speech or any amendment right
4. Quarantine
5. Isolation/confinement
6. forced treatment
7. right to refuse life sustaining medical treatment
ii. Privacyàmust be a legitimate expectation of privacy: analyze steps taken to prevent disclosure (more steps that are taken to prevent disclosure, the less likely it is to be seen as the deprivation of a fundamental privacy interest because it is less likely to have a high expectation of privacy from the individual)
1. Context of keeping medical information private; confidentiality of medical information
2. Sexual information and information about having abortion are ex.
b. RB applies
i. When the liberty interest is not fundamental
1. Homosexual activity
2. Right to contract
3. Right to not wear motorcycle helmets
4. Right to assisted suicide
ii. OR when there is no legitimate expectation of privacy
1. i.e. revealing that you are on schedule II drugs
iii. Property interestsà owning/operating a business is not fundamental
3. Deprivation
a. Liberty interest is not absolute
b. Even if there is a deprivation, it passes constitutional muster if is satisfies the appropriate level of scrutiny
4. Pass scrutiny
a. SS—law is necessary to serve a compelling state interest and law narrowly tailored to further that interest or where privacy is concerned, disclosure is necessary to serve a compelling state interest and is narrowly tailored.
i. When disease or illness is at issue, scientific evidence helps show that the law is necessary or narrowly tailored.
1. Use Arline factors to determine if action is the least restrictive alt. This shows particularized assessment. **If facts aren’t in problem, tell what facts the state would need.
ii. Ex where this would come into play—involuntary testing, vaccinations, especially treatment, quarantine, and isolation.
1. Why? Right to control one’s body is fundamental.
b. RB—law serves a legitimate state interest and law is rationally related to serve that interest or where privacy is concerned, disclosure is rationally related to a legitimate state interest and is rationally related serve to that interest.
i. For privacy—factors:
1. whether invasion occurs within context of confidential relationship (i.e. school context v. doctor context)
2. the likelihood of disclosure because of gathering information and what protections are put in place to protect the unwarranted disclosure of that information
3. “chilling factor”—stigmatizing effect—will it keep someone from coming forward to get treatment because the information getting out might really harm them
4. **all factors don’t have to point in one degree. Analyze each. Not elements so don’t have to have them all. Also consider the weight that each factor gets.
ii. Equal Protection (EP)
1. Disparate impact and purpose to discriminate on particular class of people
a. Not arguing that the law is not fair as with SDP, but arguing that it disproportionately affects one group of people.
2. SS review—protected class (race, national origin, religion—special analysis) or fundamental right (freedom from restraint)
a. Ex—Quarantine in Chinatown but draw line such that white business owners are on one side and Chinese on other
b. Religion as interest—special analysis (Swan v. Peck):
i. in religious cases brought under 1st amend. free exercise, first thing to do is decide whether the rule was regulating the religious belief or the conduct of doing some action
1. if conduct is in question, then must use strict scrutiny test to decide if it is unconst.
a. need compelling state interest→ must have clear and present danger
b. also apply RB test (Employment v. Smith) if only 1st amend. interest without another non-1st amend. liberty interest
2. if regulating belief, then it is absolutely unconst. without even needing to apply test
3. Intermediate Scrutiny (IS)—gender
a. Level of scrutiny: substantially related to an important government interest
4. RB—all others
a. *note: More an assessment of what is possible, not what the motivation really is. Court will go beyond government interest given and come up with any conceivable interest on their own.
iii. Procedural Due Process (PDP)
1. Elements
a. State action
b. Deprivation of liberty or property
c. Without DP of law
2. What process is due?
a. Notice, hearing, appeal
b. Eldridge Balancing
c. Individualized assessment factors—Arline factors
i. Must show actual threat, not just that they have disease
Administrative law
i. State’s power to pass laws that are necessary to protect the health of citizens, i.e. police power, comes from the 10th amendment.
1. 10thàall powers not given expressly to the federal government are reserved to the states.
a. This didn’t give the state more powers; it just didn’t remove any state powers.
2. So, state police powers come from state sovereignty
ii. Any time the federal government takes action to limit state’s power to pass and enforce health laws, it must be able to justify it through a power expressly reserved to the feds.
1. Politics—speed limits generally don’t change too much between states, but under its PP, state can decide any speed limit it wants
2. Reason—Federal funds can be given through CC to maintain interstate highways; if you want more then you will agree to particular speed limit
iii. State has authority to delegate it’s power
1. Vertically—local municipalities
2. Horizontally—state health departments
Preemption
i. Express preemption—when federal law expressly states that it overrides state law in that area
ii. Implied preemption
1. Because of apparent conflict
2. Because Congress has taken over entire field
iii. **this is issue i
uiry into the sincerity of the religious beliefs.
i. Dept of health exceeded its legislative authority
iv. Christ’s Bride Ministries v. Southeastern PA Transportation Authority
1. F—Philly transit refused to display an ad stating “women who choose abortion suffer more and deadlier breast cancer.” HHS said ad was misleading, unduly alarming and didn’t accurately reflect weight of scientific lit. P filed suit claiming that their rights under 1st and 14th amendment were violated.
2. H—Because SEPTA created a traditional “public forum” by expressly dedicating the space to speech activity, including pro-choice abortion, restriction of speech falls under the 1st amendment as a fundamental right and is subject to SS
a. Gov cannot restrict expression for subject matter that it finds acceptable while denying use to those wanting to express less favored or more controversial views—this impedes on the fundamental right to free speech
b. The gov barred speech that was compatible with the forum, which was an unreasonable deprivation of speech
3. **Note—if the billboards were not available for speech or if they were used only for commercial speech, only RB would apply
Fundamental “liberty” under the 14th (SS)
i. Roe v. Wade (1973)
1. F—Texas statute makes it a crime to “procure an abortion”
2. H—Statute unconstitutional; the right to privacy inherent in the 14th amendment definition of liberty is broad enough to encompass a woman’s right to choose pre-viability, which is a fundamental right.
a. What is the “right”?
i. Primary—Decision making/autonomy—Physical, stigma of being unwed mother, religious, economic
ii. Secondary—Right to body—Enduring pain, risks
b. By prohibiting abortion, law impinged on woman’s fundamental right, triggering SS
i. State interests: Maternal health and protecting life
1. But health doesn’t become interest until the end of the 1st trimester when risk of death during abortion outweighs risk of death during childbirth
2. And life doesn’t become interest until the end of the 2nd when fetus is viable
ii. So state can restrict in 2nd only when it is to protect the health of the mother, and can absolutely restrict in 3rd except when the health of the mother is at risk.
1. Ex of regulation in 2nd—require Dr get informed consent before procedure
ii. Doe v. Bolton (1973)
1. F—GA statute requires all abortions be performed in hospitals rather than in clinics or other facilities, and requires opinion of second Dr before making abortion decision.
2. H—State failed to present data to show that only hospitals can do the job and meets its interest in “insuring the quality of the operation and full protection of the patient.”
a. The woman’s right to receive medical care in accordance w/ her licensed physician’s best judgment and the physician’s right to administer care are “substantially limited by this statute”
