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[Public health law] should not be confused with medical jurisprudence, which is concerned only in legal aspects of the application of medical and surgical knowledge to individuals.... [P]ublic health is not a branch of medicine, but a science in itself, to which, however, preventive medicine is an important contributor. Public health law is that branch of jurisprudence which treats of the application of common and statutory law to the principles of hygiene and sanitary science.
James A. Tobey (1926)
The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught (in schools of law, medicine, public health, and health administration), practiced (by "health lawyers"), and analyzed (by scholars in the related fields of health law, bioethics, and health policy). Organized groups of teachers, scholars, and practitioners in law and health are active and visible, including the American Society of Law, Medicine & Ethics; the American Health Lawyers Association; and the American College of Legal Medicine.
The fields that characterize these branches of study are variously called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant literature is a theory of the discipline of public health law, an exploration of its doctrinal boundaries, and an assessment of its analytical methodology.
Public health law shares conceptual terrain with the field of law and medicine, or health care law, but is a distinct discipline. My claim is not that public health law is contained within a tidy doctrinal package; its boundaries are blurred and overlap other paths of study in law and health. Nor is public health law easy to define and operationalize; the field is as complex and confused as public health itself. Rather, I posit that public health law is susceptible to theoretical and practical differentiation from other disciplines at the nexus of law and health.
Public health law can be defined, its boundaries circumscribed, and its analytical methods detailed in ways that distinguish it as a discrete discipline-just as the disciplines of medicine and public health can be demarcated. With this book I hope to provide a fuller understanding of the varied roles of law in advancing the public's health. The core idea that I propose is that law can be an essential tool for creating the conditions that enable people to lead healthier and safer lives.
In this chapter, I construct a definition of public health law, borrowing from ideas in constitutional law, theories of democracy and community, and public health history and practice. My definition of public health law follows, and the remainder of this chapter offers a justification for each component of the definition.
Public health law is the study of the legal powers and duties of the state to assure the conditions for 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.
Through this definition, I suggest five essential characteristics of public health law (see Figure 2):
Government: Public health activities are a special responsibility of the government.
Populations: Public health focuses on the health of populations.
Relationships: Public health addresses the relationship between the state and the population (or between the state and individuals who place themselves or the community at risk).
Services: Public health deals with the provision of population-based services grounded on the scientific methodologies of public health (e.g., biostatistics and epidemiology).
Coercion: Public health authorities possess the power to coerce individuals and businesses for the protection of the community, rather than relying on a near universal ethic of voluntarism.
GOVERNMENT POWER AND DUTY IN PUBLIC HEALTH: WHAT IS "PUBLIC" IN PUBLIC HEALTH LAW
A systematic understanding of public health law requires a careful examination of what is "public." A public entity acts on behalf of the people and gains its legitimacy through a political process. A characteristic form of "public" or state action occurs when a democratically elected government exercises powers or duties to protect or promote the population's health. What follows is a systematic justification of government's special responsibility in matters of public health. I base my argument on the primacy of government in the constitutional design, the obligations of government in a democracy, and governmental health regulation in history and practice. I do not mean to suggest, however, that government is exclusively engaged in the work of public health. The private and charitable sectors have played, and continue to play, a vital role in improving the health of the populace.
the role of government in the constitutional design
The Constitution, it is widely assumed, is conceived in negative terms to restrain government from invading a sphere of individual liberty and property interests. According to this settled view, the Constitution does not oblige the government to act for the common good. I will return to the idea of a negative constitution in the next chapter. For the present, it is important to understand that the constitutional design shows that the government is empowered to, and actually does, defend the common welfare.
The Preamble to the Constitution reveals the influence of republican ideals of government as the wellspring of communal life and mutual security: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution...."
The common defense and the general welfare could not have been conceived as relating solely to physical security, for perhaps the principal threat to civil society during the generation in which the Constitution was ratified (the "framing era") was epidemic disease and other forms of ill health. After examining public and private roles during the framing era, Wendy Parmet concludes, "Despite the disagreement and uncertainty over the actual meaning of 'the common good,' it seems likely that the preservation of public health ... was one meaning that all would share. Tradition and practice pointed to it. Theorists such as Montesquieu supported it. So did popular political discourse."
The constitutional design reveals a plain intent to vest power in government, at every level, to protect community health and safety. In its very first sentence, the Constitution provides sole legislative, or policy-making, authority to the Congress, and the first enumerated legislative power is expressly to provide for the "common Defence" and "general Welfare" of the United States. The legislative role is to enact laws necessary to safeguard the population from harms, including harms relating to health and safety risks. The executive branch, pursuant to its constitutional obligation to "take Care that the Laws be faithfully executed," enforces and amplifies legislative health and safety standards. Executive agencies have developed special expertise in matters of health and have long promulgated regulations to safeguard public health and safety. The judicial role is to construe the law and to ensure that legislative and executive actions are congruent with the Constitution. Since the earliest times, the courts have authorized compulsion-notably through common law nuisance abatement-to protect the public health.
From a constitutional perspective, only government-whether federal, state, or local-can collect taxes and expend public resources, and only government can require members of the community to submit to inspection and regulation. The Constitution grants no residual power to the private sector to tax, spend, or regulate-all necessary for the preservation of the public's health. To the extent that the private sector uses public funds or demands compliance with health and safety standards, it does so principally through delegated governmental authority. The private sector's role in public health is simply not found in the constitutional design.
the responsibilities of government in democracies
Why is it that a political, or governmental, entity possesses principal, if not sole, responsibility to protect and promote public health? Theories of democracy and political communities help to explain the primacy of government in matters of public health. Michael Walzer has articulated an essential truth about the nature and purposes of political communities: "Membership is important because of what the members of a political community owe to one another ... and the first thing they owe is the communal provision of security and welfare." Public health, according to Walzer, is the "easy" case of a general communal provision because public funds are expended to benefit all or most of the population without any specific distribution to individuals. To contrast public health with medicine, the former is most often a general communal provision, while the latter is most often particular.
A political community stresses a shared bond among members: organized society safeguards the common goods of health, welfare, and security, while members subordinate themselves to the welfare of the community as a whole. Public health can be achieved only through collective action, not through individual endeavor. Acting alone, individuals cannot assure even minimum levels of health. Individuals may procure personal medical services and many of the necessities of living; any person of means can purchase a home, clothing, food, and the services of a physician or hospital. Yet no single individual, or group of individuals, can assure his or her health. Meaningful protection and assurance of the population's health require communal effort. The community as a whole has a stake in environmental protection, hygiene and sanitation, clean air and surface water, uncontaminated food and drinking water, safe roads and products, and control of infectious disease. These collective goods, and many more, are essential conditions for health. Yet these goods can be secured only through organized action on behalf of the population.
Moreover, the population, or electorate, legitimizes systematic community activity for the public health. Public health activities in a democracy cannot be organized, funded, or implemented without the assent of the people. It is government that possesses the sole authority to empower, regulate, or carry out activities designed to protect or promote the general health, safety, and welfare of the population. It is the public that bands together to achieve social goods that could not be secured absent collective action. And it is the public, or electorate, that legitimizes or authorizes government to act for the common welfare. Walzer argues that every set of political officials is at least putatively committed to securing health for the population, and every set of members of a political community is committed to bear the necessary burdens (and does so). "The first commitment has to do with the duties of office; the second, with the duties of membership." Consequently, the communal efforts of the body politic to protect and promote the population's health represent a central theoretical tenet of what we call public health law.
Political philosophers, such as Norm Daniels and Dan Brock, show that health takes on a special meaning and importance in political communities. Public health is indispensable not only to individuals, but to the community as a whole. The benefits of health to each individual are indisputable. Health is necessary for much of the joy, creativity, and productivity that a person derives from life. Perhaps not as obvious, however, health is also essential for political communities. Without minimum levels of health, populations cannot fully engage in the social interactions of a community, participate in the political process, generate wealth and assure economic prosperity, and provide for common defense and security. Public health, then, becomes a transcendent value because a fundamental level of human functioning is a prerequisite for engaging in activities that are critical to communities-social, political, and economic.
I do not mean to suggest that the political commitment to public health must be absolute. What constitutes "enough" public health? How much? What kinds of services? How will they be paid for and distributed? These remain political questions. Democratic government will never devote unlimited resources to public health; core public health functions compete for scarce resources with other demands for services, and resources are allocated through a prescribed political process. In this sense, Dan Beauchamp is instructive in suggesting that a healthy republic is not achieved solely through a strong sense of communal welfare, but is also the result of a vigorous and expanded democratic discussion about the population's health.
governmental health regulation in history and practice
Constitutional law and democratic theory support the basic power or obligation of organized society (principally through government) to protect and preserve the health of populations. But in a very real sense, governmental health activities form part of the fabric and experience of public health in America. Throughout the history of public health, the line between public and private action has never been hard and fast. Moreover, private, charitable, and religious influences have been manifest. Still, from the colonial and framing periods to the Progressive Era and the New Deal-and continuing to modern times-government in all its various forms has assumed responsibility for public health.
The early history of public health in America has been widely chronicled and need not be reiterated here. Public health regulation had become a common feature by the colonial and federalist periods. Health regulation, which reaches at least as far back as the seventeenth century, included conditions of travel at sea; isolation and quarantine; inoculation with smallpox pus; sanitary controls on dead fish, animals, and garbage; and quality controls on bread, meat, and drinking water (see chapters 7, 8, and 9).
Excerpted from PUBLIC HEALTH LAW by LAWRENCE O. GOSTIN Copyright © 2000 by Regents of the University of California. Excerpted by permission.
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|List of Illustrations|
|List of Tables|
|1||Theory and Definition of Public Health Law||3|
|2||Public Health in the Constitutional Design||25|
|3||Constitutional Limits on the Exercise of Public Health Powers: Safeguarding Individual Rights and Freedoms||61|
|4||Public Health Regulation: A Systematic Evaluation||85|
|5||Public Health Information: Personal Privacy||113|
|6||Health, Communication, and Behavior: Freedom of Expression||145|
|7||Immunization, Testing, and Screening: Bodily Integrity||175|
|8||Restrictions of the Person: Autonomy, Liberty, and Bodily Integrity||203|
|9||Economic Behavior and the Public's Health: Direct Regulation||237|
|10||Tort Law and the Public's Health: Indirect Regulation||269|
|11||Public Health Law Reform||309|
|Table of Cases||465|
|About the Author||491|