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Public Health Law
Wayne State University Law School
Gable, Lance

Part I: Foundations of Public Health Law
PHL: Mapping the Issues
This week we begin a development of a definition and theory of public health law. It provides a justification of the special role of government to assure the conditions for people to be healthy. This justification is based on theories of democracy, normative ideas about the foundational importance of health, and an historical perspective.
PH = interventions, regulations of food product, drugs & advertising; infectious & chronic dieseses; injuries, quarentine; etc.
1. A brief overview: objectives

Define public health through an examination of public health theory and practice;
Examine the structure and functions of the public health system and the integral role of law in public health practice;
Discuss the role of government (including judicial), community, and individual involvement in health;
Outline a framework for public health ethics;
Assess legal and ethical conflicts between governmental interests in health and individual interests in liberty; and
Apply principles of public health law and ethics to real world examples.

2. Public Health Overview

Definition: Society’s obligation to assure the conditions for people’s health
Mission: Promote physical & mental health; prevent disease, injury, and disability

Assessment – assemble and analyze community health needs
Policy development – informed through scientific knowledge
Assurance – Services necessary for community health


Narrow focus – proximal risk factors (e.g., infecious disease control, hygiene & sanitation; clean air & water; safe roads and products; health edu and promotion)

Problems: lacks vision. Fail to see root causes of ill health and utilize a broad range of tools to achieve healther populations.

Broad focus – distal social structures (e.g., discrimination, homelessness, socioeconomic status). Socioecon Impacts (social status, race, wealth, edu). Interventions/tools to improve PH (econ redistribution; social restructuring; behavioral modification; social science)

DHHS “Determinants of Health” = physical env, behavior and biology, social enviornment
Leads to PH research into areas of general social policy (city planning and safe housing, violence, war, discrimination)
Justified by import of culture, poverty, and powerlessness on the health of populations


field of ph appears less credible if it overreaches
BP pros do not possess all the expertise/skill necessary to intervene on behavioral, social, physical, and env levels
Risk of losing polticial and public support. PH gains credability by adherence to science, if stray to political advocacy it may lose apperance of objectivity.

Expertise/Skills: Epidemiology and biostatistics, education and communication, leadership and politics

3. Conseptual Challenge – What is public health?

Public health law is no longer viewed narrowly as a subset of health law focused on the practice of laws concerning communicable diseases, public health nuisances, and sanitation.

Institute of medicine definition – broad definition. “Public health” has been defined by the IOM as “is what we, as a society do collectively to assure the conditions for people to be healthy.”

“we, as a society” = goes beyond govt & communtites, intros idea that this is a collective responsibility. Emphasis on cooperative and mutally shared obligations.

Collective goods (i.e. env protection, hygiene and sanitation, clean air and surface water, uncontaminated food and water, safe roads & products) achievable only thgrough organized and sustained community activities.

“assure the conditions” = not assuring the outcomes, only the conditions. Conditions can include ed, econ support, env factors, rights, etc

WHO – A nonaccomplishable goal, an asperational goal

Objective: The attainment by all peoples of the highest possible level of health.
Definition of health: A state of complete physical, mental and social well-being and not merely the absence of disease or infirmary.

Scope of PH Challenges (legal, conceptual, ethical, political, cultural, financial, organizational, scientific)

Political because many of the things that we are trying to achieve through PH are not achievable by individuals alone…requries something like the policical process to get it done.

CDC Celebrating a century of success: 10 great PH Achievements in the US from 1900-1999

Safer workplaces
Safer and healthier foods
Motor-vehicle safety
Control of infectious diseases
Decline in deaths from coronary heart disease and stroke
Family planning
Recognition of tobacco use as a health hazard
Healthier mothers and babies
Fluridation of drinking water

Scope of public health challenges:

Living and working conditions may include:
Psychosocial factors
Employment status and occupational factors Socioeconomic status (income, education, occupation)
The natural and builtc environmentsPublic health services
Health care services

Over the life span

Most of these are not as easy to accomplish one-on-one

Other types of approaches: engaging in broad information dissemination, regulations, etc

4. What is PHL? Gostin Definition

The legal powers and duties of government used primarily to assure the conditions for people to be healthy (e.g., to identify, prevent, and ameliorate risks to health in the population), and
the structural (e.g. separation of powers, federalism) and rights-based (e.g. privacy, liberty, autonomy) limitations on the power of the state to act in the interests of the public’s health or constrain legally- protected interests of individuals.
These are not absolute powers, the govt is constrained

· Legal powers of the state to assure conditions in which people can be healthy
· Legal duties of the state to assure conditions in which people can be healthy
· Limits on power of the state to constrain individual interests for the health of a community
5. Five Essential Characteristics of Public Health Law

Government: Public health activities are a special responsibility of the government.

Power & duty to protect public health
Can’t do many things by self (i.e. clean water, air, etc)

There isn’t usually a profit to be made in PH so it can be hard to get private industries to participate

Populations: PH focuses on the health of populations, not individuals

Interest in disease prevention and health promotion

Relationships: PH addresses the relationship bw the state and the population (or bw the state and individuals who place theselves or the community at risk).

Bw govt officials and public; bw different levels of govt (fed/state/local or departemetns w/in the same level); bw public and private sectors (non-profit and for profit)

Services: PH deals with the provision of population-based services grounded on the scientific methodologies of ph (e.g. biostatistics and epidemiology).

For the benefit of the public, based on the sciences of PH
Through govt or encouragement by govt

to be released unless drinking age was raised to 21
b. Alter the informational environment
i. Possibly the letters being sent home to parents of overweight school kids
ii. Done directly by govt (public service announcements, etc)
iii. Done indirectly by govt by requiring private manufacturers to put informational labels or restrict advertising
iv. Can also be laws that regulate speech generally…all of the above qualify for this
c. Alter the built env (man-made things/places to the env)
i. Exp. People not using the crosswalk so the local govt changes bus stop to area of crosswalk and deaths decrease
ii. Exp. Companies making stairs eaiser to use to increase health
d. Alter the Socio-Econ Env
i. Income distribution, social stratification in society,
ii. Hardest types of factors for govt or anyone to affect
e. Direct regulation of persons, professionals, and businesses
i. Fed govt through commerce power
ii. State through police power
iii. Regulations that directly affect health or a H risk – mandatory reporting, quarantine…
iv. Executive orders
1. Exp:(i.e. mandating mandatory Gardesal (overian cancer vaccine) for young girls in TX)
2. Exp: Colorado used these to change there emergency preparedness laws
3. Pros of exec orders are that you can pass things that the legislature never would; Cons are that it can be repealed by next Gov. unilaterially and opens policy up to more attacks, less democratic bc didn’t go through legislative process.
f. Indirect regulations through the tort system
i. Tort system – private entities bringing suits that challenge conditions that threaten health
ii. Allow individuals to bring civil cases against companies or individuals who have harmed or put their health at risk
iii. Environmental toxins or hazards
iv. Indirect because it is not the govt saying what an individual what they can do on behalf of public health but it will have an indirect effect on what companies do to avoid suits.
g. Dergulation: law as a barrier to health
i. Too much regulation or poorly drafted regulations can undermine public health campaigns and removing these can imporve helath

Laws that punish public health campaigns like distribution of clean needles, privacy for HIV pos individuals purposely infecting individuals

State of Debate: Not everyone believes that law is an appropriate way to protect and promote
the community’s health, and when law is used in any of its manifestations it is bound to create
controversy. Coercive interventions aimed at changing individual behavior are perhaps most
contentious, such as infectious disease powers. Many people believe that government should rarely
exercise coercive powers either because they are ineffective (e.g., it will “drive the epidemic
underground”) or overly intrusive (e.g., it will undermine autonomy, privacy, or liberty). Regulation of
products through the tort system is also controversial. Here, people argue that tort law often offers the
wrong kind of incentives (e.g., deterring innovation for vaccines or pharmaceuticals) and is inefficient
(e.g., devoting too many resources to lawyers). Finally, regulation of the informational or economic
environment is controversial. Think about the disputes that arise from regulation of advertising (public
health versus free speech) or the regulation of businesses through licenses and inspections (public health
versus property rights).