Law and the Public’s Health

Public health law is experiencing a renaissance. Once fashionable during the Industrial and Progressive eras, the ideals of population health began to wither in the late 20th century. In their place came a sharpened focus on personal and economic freedom. Political attention shifted from population health to individual health and from public health programs to private medicine. Signs of revitalization of the field of public health law can be seen in diverse national and global contexts. The Centers for Disease Control and Prevention (CDC) created a center of excellence in public health law—the Center for Law & the Public’s Health (www.publichealthlaw.net)—and other nations have followed suit. In the aftermath of September 11 and the anthrax attacks, the CDC requested the drafting of the Model State Emergency Health Powers Act, now adopted in whole or in part by 37 states. A consortium of state and federal partners then drafted the “Turning Point” Model Public Health Act, which outlines a modern mission, core functions, and essential services for public health agencies. At the global level, the World Health Organization (WHO) is revising the International Health Regulations and preparing a WHO Model Public Health Act to Advance the Millennium Development Goals.

Why are these diverse international, governmental, and nongovernmental organizations paying such close attention to public health law? The reason is that law is essential to achieving the goals of population health. Law creates public health agencies, designates their mission and core functions, appropriates their funds, grants their power, and limits their actions to protect a sphere of freedom. Public health statutes establish boards of health, authorize the collection of information, and enable monitoring and regulation of dangerous activities. The most important social debates about public health take place in legal forums—legislatures, courts, and administrative agencies—and in the law’s language of rights, duties, and justice. It is no exaggeration to say that the field of public health is grounded in statutes and regulations found at every level of government.

Law can be empowering, providing innovative solutions to the most implacable health problems. Of the 10 great public health achievements of the 20th century, most were realized, at least in part, through law reform or litigation: vaccinations, safer workplaces, safer and healthier foods, motor vehicle safety, control of infectious diseases, tobacco control, and fluoridation of drinking water. Only three (family planning, healthier mothers and babies, and reduced deaths from coronary heart disease and stroke) did not involve law reform.

Law, therefore, can be a powerful agent for change in society, and policymakers need to be familiar with all the legal tools at their disposal. However, the law also places limits on what public policy can do, and policymakers must be prepared to wrestle with difficult legal, social, and ethical concerns that will arise in conjunction with potential public health initiatives.

What is public health law?

I have defined public health law as the study of the legal powers and duties of the state to promote the conditions for people to be healthy and the limitations on the power of the state to constrain the autonomy, privacy, liberty, or proprietary or other legally protected interests of individuals for the protection or promotion of community health. To understand the role of law in public health, it is useful to begin with a description of the legal basis for government authority (the police power) and the limits on that authority.

The “police power” is the most famous expression of the natural authority of government to regulate for the public good. Although police power evokes images of an organized civil force for maintaining public order, the word “police” has its linguistic roots in the close association between government and civilization: politia (the state), polis (city), and politeia (citizenship). The word had a secondary usage as well: cleansing or keeping clean. This use resonates with early 20th-century public health connotations of hygiene and sanitation. I define police power as the inherent authority of the state to enact laws and promulgate regulations to protect, preserve, and promote the health, safety, morals, and general welfare of the people. To achieve these communal benefits, the state retains the power to restrict, within federal and state constitutional limits, private interests—personal interests in autonomy, privacy, association, and liberty, as well as economic interests in freedom to contract and uses of property.

The police powers include all laws and regulations directly or indirectly intended to reduce morbidity and mortality in the population. These powers have enabled states and localities to promote and preserve the public’s health in areas ranging from injury and disease prevention to sanitation, waste disposal, and water and air pollution. States exercise police powers for the common good: to ensure that communities live in safety and security; in conditions conducive to good health; with moral standards; and, generally speaking, without unreasonable interference in human well-being.

Government, to advance the common good, is empowered to enact legislation, regulate, and adjudicate in ways that necessarily limit private interests. For example, the police power affords states the authority to keep society free from noxious exercises of private rights, such as the dumping of toxic waste.

The police powers authorize government to exercise compulsory powers for the common good, but the state must act in conformity with constitutional and statutory constraints. Whenever government exercises coercive powers, it interferes with personal rights to liberty, bodily integrity, privacy, property, or other legally protected interests. The exercise of police power therefore often presents hard trade-offs between promoting the common good and protecting individual rights. Consider the following actions that government can take to protect the public from infectious disease as a classic illustration of the conflicts between public health and civil liberties.

Surveillance and privacy. Public health agencies collect, use, and disclose a considerable amount of personal health information. The law requires health care institutions and professionals to report specified information to health officials. Public health agencies can also monitor health records to provide early warnings of disease outbreaks. Surveillance is critically important to disease control, but it also interferes with the right of privacy. Notably, the federal privacy rules issued under the Health Insurance Portability and Accountability Act (HIPAA) have broad exemptions for public health data. The U.S. Supreme Court has upheld the state’s power to require reporting, but it does insist that public health agencies have adequate safeguards to protect individual privacy.

Vaccination, treatment, and bodily integrity. Public health agencies have the power to compel vaccination, medical examinations, and treatment, including directly observed therapy. These medical interventions are critically important in preventing or controlling the spread of infectious diseases, but they also can interfere with patients’ rights such as bodily integrity and religious freedom. The courts have upheld state therapeutic powers but with certain safeguards. Medical interventions must be necessary for the public’s health and therapeutically appropriate for the patient.

Quarantine and liberty. Public health officials have long had the power to order isolation or quarantine to protect against the spread of infectious disease. For example, these measures were used sporadically in the United States, and extensively in Canada and Asia, during the 2003 severe acute respiratory syndrome (SARS) outbreaks. Although courts authorize the deprivation of liberty for the public good, health officials must provide patients with procedural due process. Thus, before using these measures (or soon after in cases of emergency), individuals must have the right to a hearing with a legal representative. Isolation and quarantine are well-established measures for tuberculosis control, but they would be quite controversial in a large-scale public health emergency such as an influenza pandemic or a bioterrorism event.

Commercial regulation and economic rights. Public health officials have a wide range of powers to control businesses and the professions, including licensing, inspections, and nuisance abatements. These measures are necessary to ensure that health care activities are conducted safely. The courts have long upheld these forms of economic regulation, even though they interfere with the rights to engage in a profession, enter into a contract, or conduct a business. Still, government must show that it has good grounds for economic regulation. For example, in many cases, public health officials might have to obtain a search warrant before conducting an inspection.

Social justice

Social justice is viewed as so central to the mission of public health that it has been described as the field’s core value. The idea of “justice” is complex and multifaceted, but it remains at the heart of public health’s mission. Justice is fair, equitable, and appropriate treatment in light of what is due or owed to individuals and groups. Justice does not require universally equal treatment, but it does require that similarly situated people be treated equally. Justice, in other words, requires that equals are treated the same and nonequals are treated differently.

Justice, which is the fair and proper administration of laws, has three important attributes of special relevance to public health. Perhaps the most important aspect is nondiscrimination: treating people equitably based on their individual characteristics rather than membership in a socially distinct group such as race, ethnicity, sex, religion, or disability. It cautions against public health judgments based on prejudice, irrational fear, or stereotype, such as singling out people living with HIV/AIDS for adverse treatment.

A second important aspect is natural justice: affording individuals procedural fairness when imposing a burden or withholding a benefit. The use of legal proceedings according to established rules and principles for the protection and enforcement of individual rights lies at the heart of due process. The elements of due process include notice, trial rights including the right to an attorney, and a fair hearing. Natural justice requires public health officials to afford individuals procedural safeguards in conjunction with the exercise of compulsory powers such as isolation or quarantine.

The final aspect is distributive justice: fair disbursement of common advantages and the sharing of common burdens. This form of justice requires that officials act to limit the extent to which the burden of disease falls unfairly on the least advantaged and to ensure that the burdens of interventions themselves are distributed equitably. Coercive public health powers, therefore, should not be targeted against vulnerable groups such as injection drug users, prostitutes, or gays without good cause based on careful risk assessments.

Distributive justice also requires the fair distribution of public health benefits such as vaccines and medical treatment. This principle might apply, for example, to the fair allocation of vaccines or antiviral medications during a major influenza outbreak. Public health actions, moreover, must be seen to be fair. For example, many people were upset at the government’s decision to aggressively screen and treat congressional staffers but not low-income postal workers in Washington, D.C., during the anthrax outbreak.

Public health tools

If government has the power to ensure the conditions for people to be healthy, what tools are at its disposal? There are at least seven models for legal intervention designed to prevent injury and disease, encourage healthful behaviors, and generally promote the public’s health.

Taxing and spending. The power to tax and spend is ubiquitous in national constitutions, providing government with an important regulatory technique. The power to spend supports the public health infrastructure, a well-trained workforce, electronic information and communications systems, rapid disease surveillance, laboratory capacity, and response capability. The state can also set health-related conditions for the receipt of public funds. For example, government can grant funds for highway construction or other public works projects on the condition that the recipients meet designated safety requirements.

The power to tax provides inducements to engage in beneficial behavior and disincentives to engage in high-risk activities. Tax relief can be offered for health-promoting activities such as medical services, child care, and charitable contributions. At the same time, tax burdens can be placed on the sale of hazardous products such as cigarettes, alcoholic beverages, and firearms.

Despite their undoubted effectiveness, the spending and taxing powers are not entirely benign. Taxing and spending can be seen as coercive, because the government wields significant economic power. They can also be viewed as inequitable if rich people benefit while the poor are disadvantaged. Some taxing policies, such as tax preferences for energy companies or tobacco farmers, serve the rich, the politically connected, or those with special interests. Other taxes penalize the poor because they are highly regressive. For example, almost all public health advocates support cigarette taxes, but the people who shoulder the principal financial burden are disproportionately indigent and are often in minority groups.

Altering the informational environment. The public is bombarded with information that influences life choices, and this undoubtedly affects health and behavior. The government has several tools at its disposal to alter the informational environment, encouraging people to make more healthful choices about diet, exercise, cigarette smoking, and other behaviors.

First, government uses communication campaigns as a major public health strategy. Health education campaigns, like other forms of advertising, are persuasive communications; instead of promoting a product or a political philosophy, public health promotes safer, more healthful behaviors. Prominent campaigns include safe driving, safe sex, and nutritious diets.

Second, government can require businesses to label their products to include instructions for safe use, disclosure of contents or ingredients, and health warnings. For example, government requires businesses to explain the dosage and adverse effects of pharmaceuticals, reveal the nutritional and fat content of foods, and warn consumers of the health risks of smoking and drinking alcoholic beverages.

Finally, government can limit harmful or misleading information in private advertising. The state can ban or regulate advertising of potentially harmful products such as cigarettes, firearms, and even high-fat foods. Advertisements can be deceptive or misleading by, for example, associating dangerous activities such as smoking with sexual, adventurous, or active images. Advertisements can also exacerbate health disparities by, for example, targeting product messages to vulnerable populations such as children, women, or minorities.

To many public health advocates, there is nothing inherently wrong with or controversial in ensuring that consumers receive full and truthful information. Yet not everyone believes that public funds should be expended or the veneer of government legitimacy used to proscribe particular social orthodoxies regarding personal choices related to sexual activity, abortion, smoking, high-fat diet, or sedentary lifestyle. Labeling requirements seem unobjectionable, but businesses strongly protest compelled disclosure of certain kinds of information. For example, should businesses be required to label foods as genetically modified (GM)? GM foods have not been shown to be dangerous to humans, but the public demands a “right to know.” Advertising regulations restrict commercial speech, thus implicating businesses’ right to freedom of expression. The U.S. Supreme Court, for example, has strongly supported the right to convey truthful commercial information. Courts in most liberal democracies, however, do not afford protection to corporate speech. There is, after all, a distinction between political and social speech (which deserve rigorous legal protection) and commercial speech. The former is necessary for a vibrant democracy, whereas the latter is purchased and seeks primarily to sell products for a profit.

Altering the built environment. The design of the built or physical environment can hold great potential for addressing the major health threats facing the global community. Public health has a long history of designing the built environment to reduce injury (workplace safety, traffic calming, and fire codes), infectious diseases (sanitation, zoning, and housing codes), and environmentally associated harms (lead paint and toxic emissions).

Many developed countries are now facing an epidemiological transition from infectious to chronic diseases such as cardiovascular disease, cancer, diabetes, asthma, and depression. The challenge is to shift to communities that are designed to facilitate physical and mental well-being. Although research is limited, we know that environments can be designed to facilitate health-affirming behavior by, for example, providing space for physical activities such as walking, biking, and playing; providing easy access to sources of fresh fruits and vegetables; limiting the places where people can purchase or consume cigarettes and alcoholic beverages; reducing violence associated with domestic abuse, street crime, and firearm use; and creating opportunities for social interactions that build social capital.

Popular columnist Virginia Postrel offers a stinging assessment of public health efforts to alter the built environment: “The anti-sprawl campaign is about telling [people] how they should live and work, about sacrificing individuals’ values to the values of their politically powerful betters. It is coercive, moralistic, nostalgic, [and lacks honesty].” However, the evidence demonstrates that organized societies have a remarkable capacity to plan, shape the future, and help populations increase health and wellbeing. The empirical evidence does not make it inevitable that the state will, or always should, prefer health-enhancing policies. However, government does have an obligation to carefully consider the population’s health in its land use policies.

Altering the socioeconomic environment. A strong and consistent finding of epidemiological research is that socioeconomic status (SES) is correlated with morbidity, mortality, and functioning. SES is a complex phenomenon based on income, education, and occupation. The relationship between SES and health is often referred to as a “gradient” because of the graded and continuous nature of the association. It is not just the very poor who are at a disadvantage; health differences are observed well into the middle ranges of SES. These empirical findings have persisted across time and cultures and remain viable today.

Despite the strength of evidence, critics express strong objections to policies directed at reducing socioeconomic disparities. They dispute the causal relationship between low SES and poor health outcomes and argue that income redistribution is not within the legitimate sphere of public health.

Although SES disparities are political questions, the evidence should guide elected officials. Admittedly, the explanatory variables for the relationship between SES and health are not entirely understood. However, waiting for researchers to definitively find the causal pathways would be difficult and time-consuming, given the multiple confounding factors. This would indefinitely delay policies that could powerfully affect people’s health and longevity. What we do know is that the gradient probably involves multiple pathways, each of which can be addressed through social policy. People of low SES experience material disadvantage (in access to food, shelter, and health care); toxic physical environments (poor conditions at home, work, and community); psychosocial stressors (financial or occupational insecurity and lack of control); and social contexts that influence risk behaviors (smoking, physical inactivity, high-fat diet, and excessive alcohol consumption). Society can work to try to alleviate each of these determinants of morbidity and premature mortality.

Direct regulation of persons, professionals, and businesses. In a well-regulated society, public health authorities set clear, enforceable rules to protect the health and safety of workers, consumers, and the population at large. Regulation of individual behavior (such as the use of seatbelts and motorcycle helmets) reduces injuries and deaths. Licenses and permits enable government to monitor and control the standards and practices of professionals and institutions (such as doctors, hospitals, and nursing homes). Finally, inspection and regulation of businesses help to ensure humane conditions of work, reductions in toxic emissions, and safer consumer products.

Despite its undoubted value, public health regulation of commercial activity is highly contested terrain. The U.S. economic philosophy favors open competition and the undeterred entrepreneur. Libertarians view commercial regulation as detrimental to economic growth and social progress. Commercial regulation, they argue, should redress market failures, such as monopolistic and other anticompetitive practices, rather than restrain free trade. On the other hand, public health advocates are opposed to unfettered private enterprise and suspicious of free-market solutions to complex social problems. They point out that unbridled commercialism can produce unsafe work environments, noxious byproducts, and public nuisances. Regulation is needed to curb the excesses of unrestrained capitalism to ensure reasonably safe and healthful business practices.

Indirect regulation through the tort system. Attorneys general, public health authorities, and private citizens possess a powerful means of indirect regulation through the tort system. Civil litigation can redress many different kinds of public health harms: environmental damage such as air pollution or groundwater contamination; exposure to toxic substances such as pesticides, radiation, or chemicals; hazardous products such as tobacco or firearms; and defective consumer products. For example, in 1998, tobacco companies negotiated a master settlement agreement with the states that required compensation in perpetuity, with payments totaling $206 billion through the year 2025.

The goals of tort law, although imperfectly achieved, are frequently consistent with public health objectives. The tort system aims to hold individuals and businesses accountable for their dangerous activities, compensate people who are harmed, deter unreasonably hazardous conduct, and encourage innovation in product design. Civil litigation, therefore, can provide potent incentives for people and manufacturers to engage in safer, more socially conscious behavior.

Although tort law can be an effective method of advancing the public’s health, like any form of regulation it is not an unmitigated good. First, the tort system imposes economic costs and personal burdens on individuals and businesses. Tort costs are absorbed by the enterprise, which often passes the costs on to employees and consumers. Second, tort costs may be so high that businesses do not enter the market, leave the market, or curtail R&D. Society might not be any poorer if tort costs drove out socially unproductive enterprises such as cigarette makers, but it would not be beneficial to destroy the vaccine industry. Third, the tort system can be unfair, distributing windfalls to isolated plaintiffs and their attorneys while failing to compensate the majority of injured people in the population. Studies of the medical malpractice system, for example, demonstrate that large awards often are given to undeserving plaintiffs, whereas most patients who suffer from medical error are never compensated.

Deregulation: Law as a barrier to health. Sometimes laws are harmful to the public’s health and stand as an obstacle to effective action. In such cases, the best remedy is deregulation. Politicians might urge superficially popular policies that have unintended health consequences. Consider laws that penalize exchanges or pharmacy sales of syringes and needles. Restricting access to sterile drug injection equipment can fuel the transmission of HIV and other blood-borne infections. Similarly, the closure of bathhouses where gay sex is practiced for the purpose of slowing the spread of AIDS can drive the activity underground, making it more difficult to reach gay men with condoms and safe-sex literature. Finally, laws that criminalize sex unless the person discloses his or her HIV status make common sexual behavior unlawful. These laws provide a disincentive for seeking testing and medical treatment, ultimately harming the public’s health.

Deregulation can be controversial because it often involves a direct conflict between public health and other social values such as crime prevention or morality. Drug laws, the closure of bathhouses, and HIV-specific criminal penalties represent society’s disapproval of specific behaviors. Deregulation can thus be perceived by many as a symbol of weakness. Despite the political dimensions, public officials should give greater attention to the health effects of public policies.

No simple answers

Even this brief examination of public health law demonstrates the power of law to promote the health of populations, ranging from vaccinations, tobacco control, and clean water, to safety standards for consumer products, workplaces, and roads. Much of this regulation has deep historical precedent and strong public support. However, many areas at the cutting edge of public health law are deeply controversial. Public health officials, for example, have a significant interest in genomics to achieve public goods. However, this may involve the collection of intimate information, implicating privacy concerns. Public health genomics also may increase health disparities if the rich have greater access to genetic technologies.

Much of the controversy rests on the question of who is responsible for personal behavior. Who is accountable for harms to the population: obese people or fast food chains, criminals or firearm manufacturers, smokers or the tobacco industry? Some believe that individuals have free choice and should take personal responsibility for their own behavior and that of their children. Under this school of thought, government should not be encouraging people, let alone forcing them, to change their behavior. Those in the public health community, however, believe that behavior is not solely a matter of free choice but is affected by the informational, built, and socioeconomic environments in which people live. Such advocates would use law to help ensure the conditions for population health.

Finally, much social and political controversy arises from the use of compulsory powers. This was particularly evident in the aftermath of September 11 and the anthrax attacks. Should government have the power, for example, to engage in active surveillance, compel treatment, and impose quarantines? Or, should individual rights to privacy, bodily integrity, and liberty prevail? These are the enduring questions surrounding public health law, and they pose fundamental problems that are central to our democracy.