# Presentation: 096407

## Introduction to Public Health in the Constitutional Design

- Samantha K. Graff, J.D.
- Staff Attorney
- Ventura County Health Department
- October 29, 2003

*"The findings and conclusions in this presentation have not been formally disseminated by the Centers for Disease Control and Prevention and should not be construed to represent any agency determination or policy.” *

**Notes:**

I want to start this presentation by telling a short story that happened in Fresno a couple of years ago

Souvannarath:
Laotian immigrant with MDR TB
TB controller prescribed treatment with severe side effects
Hmong translator provided by chest clinic
Failure to follow health officer orders led to detention order
Arrest at gun point
Three days: suicide watch; 6 months: prison infirmary; 4 months: general population
Two lawsuits
State case: stop using county jail as civil detention site for noncompliant patients
Federal case: constitutional civil rights violations
In a hearing relating to the state case, a county health official stated, “I did not dwell into the individual lives nor the legal issues of the patients we serve. We’re not attorneys, we’re just medical providers.”  Moreover, the official said, “I could not say whether any patients detained in the jail were afforded due process protections as this is a legal matter and I would be unaware of that.” 
This ignorance of the law cost the county $1.2 million in settlement fees

The point of this presentation is to help you from getting into the same quandary as the Fresno county health department 
Realize that you are working in a constitutional framework and give you a basic understanding of how the legal system applies to you

## Summary of Learning Objectives

- Understand your power in relation to the other branches of government, the other levels of government, and the individuals you serve
- Recognize when your actions might have legal implications so you can alert your supervisor or contact your county counsel

**Notes:**

It is important for public health officials to understand your power in relation to the other branches of government, the other levels of government, and the individuals you serve

That way, you can begin to recognize when your actions might have legal implications so you can alert your supervisor or contact your county counsel

## Constitution: Three Primary Functions

- Divide power among three branches of government
- Allocate power between levels of government
- Limit the power of government over individuals

**Notes:**
Cram three years of law school into an hour

One caveat
One of the worst things about law school was the books did not have pictures
I am a visual learner, so pictures often help me
In that spirit, I have tried to spice up this presentation with an occasional illustration
Forgive me if these illustrations are amateurish, but this is my first experience with PowerPoint

The overall structure of the presentation is to look at the three primary functions of the federal and state constitutions and to see how you as public health employees fit in

Three primary functions:
Divide power among three branches of government
Allocate power between levels of government
Limit the power of government over individuals

## Constitution: Three Primary Functions

- Divide power among three branches of government
- Allocate power between levels of government
- Limit the power of government over individuals

**Notes:**
One function of the federal and state constitutions: divide power among three branches of government
Ensure “checks and balances”
Protect us from dictatorship and authoritarianism

## Three Branches of Government: Legislative

- Creates statutes, which
- Require or prohibit certain actions
- Raise money
- Spend and set conditions on spending

**Notes:**
Legislative branch creates statutes, which
Require or prohibit certain actions
Raise money
Spend and set conditions on spending

Federal and state statutes and local ordinances tell you what your duties are as government workers
They tell you and your agencies what you may do and what you must do and they (at least theoretically) give you the resources to carry out your duties

## Three Branches of Government: Executive

- Executive agencies execute and enforce the law
- Implement statutes directly
- Issue regulations to guide implementation
- * Health departments and
- employees are part of
- the executive branch

**Notes:**
Executive branch’s job: execute and enforce the law

Although people in public health often think of ourselves as advocates for the health and welfare of individuals and the community, those of you who work in health departments are an arm of the government that is charged with making sure that laws are carried out and enforced; you carry a stick

Two ways to execute and enforce the law:
Implement statutes directly: do what the statutes charge you with doing
Issue regulations: some statutes establish general policy goals and leave it to executive agencies to devise regulations that contain rules for implementing and enforcing laws

Example 

## Legislative and Executive Branches in Action

- Legislative statute (CA Health and Safety Code):
- Sets safety and labeling standards for raw foods
- Charges DHS and local health departments with executing and enforcing these standards
- Problem: bacteria-laden Gulf oysters
- DHS executive regulations and actions:
- 1992-2002: consumer education and warning labels at point of sale
- 2003: ban on sale of Gulf oysters unless oysters are subject to post-harvest treatment process

**Notes:**
Legislature 
Passed laws setting safety and labeling standards for raw food
DHS has the duty to implement these laws and ensure local health departments comply

In the late 1980s, DHS became aware of illnesses and deaths from consumption of raw Gulf oysters
Gulf oysters loaded with bacteria that causes severe infection in people with compromised immune systems 

Initial solution: 
Traditional food safety controls (e.g., time and temperature controls)
Regulations requiring DHS and local health departments to conduct consumer education (press kits, brochures, industry and consumer presentations) 
Regulations requiring warning labels at point of sale

This strategy did not work to reduce the number of illnesses and deaths

New regulations
DHS recently issued regulations banning dealers and retailers from buying Gulf oysters in certain times of the year unless the oysters are subject to scientifically approved post-harvest treatment process

## Three Branches of Government: Judicial

- Resolves legal disputes
- Interprets statutes, regulations, constitutional law
- Develops case law precedent

**Notes:**
Judges resolve legal controversies between individuals, businesses, government agencies
In public health context, lawsuits generally involve an individual or a business arguing that a government agency “trampled on my freedom and my person rights” or that the agency “failed to do what it was supposed to do to protect my health and safety”

Judges interpret how statutes, regulations, and the Constitution apply to these controversies in order to achieve fair, consistent, reasonable outcomes

Decisions become the basis for future decisions

More on the role of judges later

## Constitution: Three Primary Functions

- Divide power among three branches of government
- Allocate power between levels of government
- Limit the power of government over individuals

**Notes:**
A second function of the federal and state constitutions: allocate power between federal, state, and local governments

## Levels of Government

- Allocation of power to make and enforce laws

**FEDERAL**

**STATE**

**LOCAL**

**US CONSTITUTION**

**CA CONSTITUTION**

**Notes:**
Federal Constitution allocates power to make and enforce laws between federal and state governments

California Constitution allocates power to make and enforce laws between state and local governments

## Overlapping Jurisdiction

- Federal, state, and local governments share the power to make and enforce laws addressing many public health issues
- E.g., injury prevention, clean air and water, infectious disease control and surveillance, tobacco control

**Notes:**
Federal, state, and local governments share the power to make and enforce laws addressing many public health issues

E.g., injury prevention, clean air and water, infectious disease control and surveillance, tobacco control

## Preemption

- Higher levels of government sometimes “preempt” lower levels from making and enforcing laws in certain subject areas
- E.g., federal preemption over labeling and advertising of cigarettes
- E.g., state preemption over the legal age for purchasing tobacco products

**Notes:**
Higher levels of government sometimes “preempt” lower levels from making and enforcing laws in certain subject areas
Reasons for preemption: uniformity, predictability, fairness

Example: regulation of cigarettes

Why can’t California or Ventura pass a law requiring all cigarette packages to have a picture of a diseased lung plastered across the front?
Federal  Cigarette Labeling and Advertising Act: only the federal government can force cigarette companies to put warning labels on their packages
Why can’t California or Ventura pass a law banning cigarette advertising within 1,000 feet of schools?
Supreme Court’s interpretation of FCLAA: only the federal government can pass a law restricting the location of cigarette advertisements (Lorillard v. Reilly)

Why can’t Ventura pass a law banning the sale of tobacco products to people under the age of 21?
California Penal Code section 308: it is unlawful for people under the age of 18 to purchase tobacco products
Cities and counties cannot pass a law setting different age limits for purchasing tobacco products

Why can Ventura pass a local licensing ordinance or a workplace smoking ban that is more restrictive than state law?
Because the state explicitly does not preempt locals from passing such ordinances

## Constitution: Three Primary Functions

- Divide power among three branches of government
- Allocate power between levels of government
- Limit the power of government over individuals

**Notes:**
Review: 

Relationship of the executive branch to the legislative and judicial branches
You have enormous power to execute and enforce the law
That power is kept in check
Legislature: passes statutes that tell you what you may and must do and that fund what you do
Judicial: sanctions you if you violate statutes, regulations, and the Constitution while you are doing your job

Relationship of federal to state and state to local governments
Federal and state levels of government sometimes prevent you from acting where you would want to act, but they still leave you a lot of room to make and enforce local laws

Now and for the rest of this presentation: Relationship of the government to individual citizens

## Constitutional Limits of Government Power Over Individuals

- Key constitutional limits on the ability of the government to pass and enforce laws that affect individual freedom:
- _Procedural due process_
- _Substantive due process_
- _Equal protection_
- Free exercise of _religion_
- Freedom from unreasonable _search and seizure_
- Free _speech_

**Notes:**
This slide highlights the major limits that the U.S. Constitution places on your ability to force people to follow laws and take actions that affect their capacity to be free to do whatever they want whenever they want

Most of these restraints are housed in the Bill of Rights, which are the first 10 Amendments to the U.S. Constitution
The spirit of the Bill of Rights is to make sure that the government cannot willy nilly take away people’s freedom 

We are going to walk through these one at a time
As we talk about each of these concepts, do not worry about wrapping your head around the nitty gritty
It takes at least three law school courses to cover these concepts, and many people still don’t get it after law school
Instead, sit back and get a general flavor for how the Constitution balances the public health community’s interests in passing and enforcing laws that protect and promote the well being of the general public against individual’s interests in being left well enough along and in being free to do what they want when they want

Note that there are analogous restraints in the California Constitution, some of which are more stringent than those in the federal Constitution
We will focus on the U.S. Constitution for the sake of time and simplicity

## Judicial Tests

- Courts apply different tests when different constitutional rights are at stake
- All of the tests involve weighing government interests against individual interests

|      government interests |        individual interests |
| --- | --- |

**Notes:**
I mentioned earlier that courts interpret how statutes, regulations, and the Constitution apply to legal controversies
Now we are going to talk about how courts interpret the Constitution
Plain language of Constitution does not say much
The really important stuff is crammed into one or two sentence blurbs with one or two key terms
If you read it on your bus ride home, you would not know much about the concept that we are about to discuss 
Instead, over time, courts have read between the lines and filled in a common understanding of what the key terms mean
In doing so, the courts have developed different tests that apply when different constitutional rights are at stake
These test all involve weighing government and individual interests at play
Examples of government interests that you have in public health
Prevent spread of disease
Prevent violence
Promote balanced diet
Examples of individual interests that are affected by these interests
Right to be left alone
Right to practice one’s religion
Right to be free from government searches and seizures
These tests guide courts, but they do not always point to an easy answer
Often, reasonable minds differ about how the tests should apply to a given situation
This is why attorneys are often unable to give an absolute yes or no response to a question of whether something is legal  

## Question

*Why is a TB patient entitled to a lawyer when contesting a civil detention but a double-parker is not entitled to a lawyer when contesting a parking ticket?*

**Notes:**
I am going to introduce each constitutional limit by posing a question that does not have an obvious answer

Why is a TB patient entitled to a lawyer when contesting a civil detention but a double parker is not entitled to a lawyer when contesting a parking ticket?

## The Due Process Clause: Procedural Due Process 

- 5th and 14th Amendments: the government cannot deprive individuals of life, liberty, or property without _due process_ of law
- Many government actions affect someone’s life, liberty, or property
- _Procedural due process_: Does the government use a fair process before depriving someone of life, liberty, or property?

**Notes:**
5th and 14th Amendments: the government cannot deprive individuals of life, liberty, or property without due process of law

Life and liberty have to do with self determination, ability to pursue individual path without government getting in the way

Property has to do with economic interests

Many government actions affect someone’s life, liberty, or property
Due process has to do with fairness and reasonableness of such government’s actions
Two types of due process: procedural and substantive

Procedural due process has to do with the fairness of the procedures the government uses before depriving someone of their life, liberty, or property

## Procedural Due Process Requirements

- Basic requirements: notice and means to object
- Additional requirements depending on individual and government interests at stake:
- Access to legal counsel
- Hearing before an impartial decision-maker
- Confrontation of witnesses
- High standard of proof
- Appeal

**Notes:**
Basic requirements of procedural due process: notice and means to object
Notice means adequate information about the legal requirements so people have a chance to comply
e.g.,  no parking sign or red curb
e.g., clearly written requirements to maintain restaurant license
Means to object means a chance to challenge government action
e.g., ability to contest a parking ticket or a license revocation via a letter or a hearing 

Additional procedural due process requirements depend on the situation
Access to legal counsel
Hearing before an impartial decision-maker
Confrontation of witnesses
“Clear and convincing” standard of proof
Appeal

Individual interest at stake
e.g., different requirements for a small fine (pennies out of your pocket) vs. forced medical treatment (intrusion into bodily integrity, self determination)

Government interest at stake: efficiency, expediency, fiscal constraints
e.g., it would be unwieldy and costly for the government to provide a lawyer to everyone who contests a parking ticket
e.g., in an emergency, the government may not have to hold a hearing before detaining someone

## Procedural Due Process in Action

- A nonadherent TB patient was involuntarily detained in a hospital without legal representation
- Patient: procedural due process was lacking
- Court:
- Individual interest involves a huge deprivation of liberty
- Government interest in expediency would not be undermined if patient had access to a lawyer
- Patient is entitled to a hearing with a lawyer

**Notes:**
Green v. Edwards, W. VA 1980

After defying many orders from the local health department to take his medications, a persistently nonadherent TB patient was involuntarily detained in a hospital
The patient had notice in the form of health officer orders and a means to object in a hearing
However, the patient was indigent and was not given the chance to have a lawyer represent him in the hearing

Patient: procedural due process was lacking because I should have had a lawyer represent me

Court:
Individual interest: confinement is a serious deprivation of liberty
“Liberty, full and complete liberty, is a right of the very highest nature. It stands next in order to life itself. The Constitution guarantees and safeguards it.”
Government interest: efficiency and expediency would not be seriously undermined if the patient had access to a lawyer

Compare this example to a smallpox outbreak
Need for quick and efficient response might lead to different procedural due process requirements

## Answer

*Why is a TB patient entitled to a lawyer when contesting a civil detention but a double-parker is not entitled to a lawyer when contesting a parking ticket?*
- There are more rigorous procedural due process requirements when the government puts someone behind bars than when the government makes someone pay a small fine

## Question

*Why is it easier for the government to regulate smoking in public, unsanitary restaurants, and drunk driving, than it is for the government to regulate contraception and abortion?*

**Notes:**
The answer lies in another aspect of the due process clause

## The Due Process Clause:Substantive Due Process 

- 5th and 14th Amendments: the government cannot deprive individuals of life, liberty, or property without _due process_ of law
- _Substantive due process_: Does the government have an appropriate justification for depriving someone of life, liberty, or property?
- To decide if a government action is justified, courts look at the worthiness of the government’s goal and the fit between the action and the goal

**Notes:**
5th and 14th Amendments: the government cannot deprive individuals of life, liberty, or property without due process of law

Procedural due process has to do with the way the government goes about depriving someone of life, liberty, or property

Substantive due process has to do with whether the government has an appropriate justification for depriving someone of life, liberty, or property

To decide if the government action is justified, courts assess the worthiness of  the government’s  goal and the fit between the action and the goal
 There are two different tests for making this assessment

## Heightened Scrutiny Test

- _Heightened scrutiny test_ applies when a special constitutionally protected right is at stake
- e.g., the right to privacy around procreation, contraception, and marriage
- e.g., the right to privacy in one’s medical records
- e.g., the right to travel and move about
- e.g., the right to refuse medical treatment
- Test: government action must be _narrowly tailored_ or must be the least _restrictive alternative_ to achieve an _important_ or _compelling_ government goal

**Notes:**
Heightened scrutiny test applies when a special constitutionally protected right is at stake  (known in common parlance as “constitutional rights”) 
e.g., the right to privacy around procreation, contraception, and marriage
e.g., the right to privacy in one’s medical records
e.g., the right to travel and move about
e.g., the right to refuse medical treatment
These all have to do with intimate, personal choices about what we do with our bodies and information we share about our bodies

Test: 
Heightened scrutiny in basic terms means a close look
The government has to work hard to convince the court
Government action must be narrowly tailored or must be the least restrictive alternative to achieve an important or compelling goal

## Heightened Scrutiny in Action

- In 1900, SF Health Department quarantined 12 blocks of Chinatown because 9 residents had died of plague in a 7-8 block radius
- Resident: the quarantine violates my right to travel
- Court:
- The right to travel is specially protected, so the heightened scrutiny test applies
- Containing the plague is a _compelling goal_ for the city
- The quarantine is unconstitutional because the deaths occurred within 7 or 8 blocks, so 12 block radius was not _narrowly tailored_

**Notes:**

In 1900, SF Health Department quarantined 12 blocks of Chinatown because 9 residents had died of plague in a 7-8 block radius

Resident: the quarantine violates my right to travel

Court:
The right to travel is specially protected, so the heightened scrutiny test applies
The city has a compelling goal: containing plague
In public health cases, courts usually rule that the government goal is compelling when it involves containing disease
City of Newark v. JS: “hardly any state interest is higher than protecting its citizens from disease”
The quarantine is unconstitutional because the deaths occurred within 7 or 8 blocks, so 12 block radius was not narrowly tailored

A modern court might have said that a “less restrictive alternative” was available to achieve the compelling goal
A quarantine around 7 or 8 blocks would have been equally effective but less restrictive
Commonly used expression in communicable disease control, special ed, housing and treatment for mentally ill
The expression comes from constitutional jurisprudence, i.e. the courts’ interpretation of the substantive due process part of the due process clause
e.g., CA TB control statute incorporates the concept by requiring health officers to document their efforts to use less restrictive alternatives whenever they issue TB control related health orders

## Rational Basis Test

- _Rational basis test_ applies when most liberty or property interests are at stake
- e.g., the ability to smoke in public
- e.g., the ability to run a dirty restaurant
- e.g., the ability to drink and drive
- Test: government action must be _reasonably related_ to a _legitimate_ government goal

**Notes:**
Rational basis test applies when most liberty or property interests are at stake
e.g., the ability to smoke in public (no “constitutional right to smoke”)
e.g., the ability to run a dirty restaurant
e.g., the ability to drink and drive
None of these interests have to do with intimate, personal decisions about what we do with our bodies

Test: 
Government action must be reasonably related to a legitimate government goal
This is an easy test for the government to pass, it doesn’t even have to offer evidence, any plausible reason will do

## Rational Basis Test in Action

- City ordinance: no keeping pot-bellied pigs on lots that are less than an acre
- Pig owner: this law violates my liberty and property interests in keeping my pigs
- Court:
- There is no special constitutionally protected right to possess pigs, so the _rational basis test_ applies
- The city has a _legitimate_ goal: preventing stench and spread of disease
- The law has a _reasonable relationship_ to that goal

**Notes:**
Lilburn v. Sanchez, GA 1999

City ordinance: no keeping pot-bellied pigs on lots that are less than an acre

Pig owner: this law violates my liberty and property interests in keeping my pigs; leave me and my pigs alone

Court:
There is no special constitutionally protected right to possess pigs, so the rational basis test applies
The city has a legitimate goal: to sure the city doesn’t smell like a pig pen and that the pigs don’t spread disease to other animals and humans
The law has a reasonable relationship to that goal: keeping pigs in the open air of the countryside and out of suburban subdivisions will reduce stench and likelihood of the spread of disease

Almost all public health laws and interventions that are challenged as substantive due process violations are upheld under this test

## Comparison

|  | Individual’s interest is: | Government’s goal must be: | Fit between action and goal must be: |
| --- | --- | --- | --- |
| RATIONAL BASIS TEST

 | minimal | legitimate  | reasonable  |
| HEIGHTENED SCRUTINY TEST | protected | important or compelling | narrowly tailored or least restrictive alternative |

## Answer

*Why is it easier for the government to regulate smoking in public, unsanitary restaurants, and drunk driving, than it is for the government to regulate contraception and abortion?*
- Substantive due process requires that a regulation of smoking, restaurants, or driving need only be reasonably related to a legitimate government goal
- Substantive due process requires that a regulation of contraception or abortion must be narrowly tailored to achieve a compelling government goal

## Question

*Why is it easy for the government pass a law that bans minors from entering a store that sells drug paraphernalia, but it is difficult for the government to pass a law that bans a particular racial or ethnic minority from entering such a store?*

**Notes:**
The answer lies in the equal protection clause

## Equal Protection

- 5th and 14th Amendments: the government shall not “deny to any person within its jurisdiction the _equal protection_ of the laws”
- _Equal protection_: Does the government have an appropriate justification for discriminating against someone just because that person belongs to a particular group?

**Notes:**
5th and 14th Amendments: the government shall not “deny to any person within its jurisdiction the equal protection of the laws”

Equal protection requires the government to have an appropriate justification for discriminating against someone because that person belongs to a particular group

## Heightened Scrutiny Test

- _Heightened scrutiny test_ applies if the “protected class” of race or ethnicity is affected
- Test: government action must be _narrowly tailored_ to achieve a _compelling_ government goal

**Notes:**
Heightened scrutiny test applies if the “protected class” of race or ethnicity is affected
Note: We are skipping over a special intermediate scrutiny test that applies to gender

Test: government action must be narrowly tailored to achieve a compelling goal
“Narrowly tailored” in equal protection context means that the government should not single out a racial or ethnic group when it is appropriate to target a more diverse group 

## Heightened Scrutiny Test in Action

- 1900 SF Health Department quarantine of Chinatown: ethnic Chinese but not other residents
- Resident: this violates my right to equal protection
- Court:
- The quarantine is based on a protected class, so _heightened scrutiny_ applies
- Containing the plague is a _compelling goal_ for the city
- The quarantine is not _narrowly tailored_ because it treats similarly situated neighbors differently only because of their race/ethnicity

**Notes:**
Jew Ho v. Williamson, 1900

1900 SF Health Department quarantine of Chinatown: ethnic Chinese but not other residents

Jew Ho: this violates my right to equal protection; you are treating ethnic Chinese different from other races and ethnicities

Court:
The quarantine is based on a protected class, so heightened scrutiny applies
Containing the plague is a compelling goal for the city (remember that public health goals are usually found to be compelling)
The quarantine is not narrowly tailored because it treats similarly situated neighbors differently only because of their race/ethnicity; not one iota of evidence or logic can justify this discrimination

## Rational Basis Test

- _Rational basis test_ applies when no “protected class” is affected
- e.g., ban on sale of alcohol or tobacco to minors but not adults
- e.g., Medi-Cal for lower income people but not higher income people
- Test: government action must be _reasonably related_ to a _legitimate_ government goal

**Notes:**
Rational basis test applies when no “protected class” is affected
e.g., ban on sale of alcohol to minors but not adults
e.g., Medi-Cal for lower income people but not higher income people

Test: 
Government action must be reasonably related to a legitimate government goal
Easy bar for government to clear

Ban on sale of alcohol to minors:
Legitimate goal: protecting minors from harming themselves, misusing controlled substances
Reasonable relationship: if minors can’t buy it, they are less likely to use it

Medi-Cal for lower income people:
Legitimate goal: health care for those who cannot afford it
Reasonable relationship: people below a certain income bracket are less likely to be able to afford medical care

## Answer

*Why is it easy for the government pass a law that bans minors from entering a store that sells drug paraphernalia, but it is difficult for the government to pass a law that bans a particular racial or ethnic minority from entering such a store?*
- Equal protection requires that a law discriminating against minors need only be reasonably related to a legitimate government goal
- Equal protection requires that a law discriminating against a racial or ethnic minority must be narrowly tailored to achieve a compelling government goal

## Question

*Why is it constitutional for the government to require people to be vaccinated even if vaccination violates their religious beliefs?*

**Notes:**
The answer has to do with the free exercise clause

## Free Exercise of Religion

- 1st Amendment:  the government “shall make no law  . . . prohibiting the free exercise [of religion]”
- Test: a law does not violate the Free Exercise Clause if it is a _valid and neutral law of general applicability_
- A valid and neutral law of general applicability does not specifically target religious conduct
- A valid and neutral law of general applicability may have an incidental impact on religion

**Notes:**
1st Amendment:  the government “shall make no law  . . . prohibiting the free exercise [of religion]”

Test: a law does not violate the Free Exercise Clause if it is a valid and neutral law of general applicability
A valid and neutral law of general applicability does not specifically target religious conduct
A valid and neutral law of general applicability may have an incidental impact on religion

## Free Exercise Test in Action

- Arkansas law: all students must be            immunized against Hepatitis B
- Parent: this law violates the Free Exercise Clause because vaccination is against my religious beliefs
- Court:
- This is _a valid and neutral law of general applicability_ because it targets public health, not religion
- The law is constitutional even though it has an incidental impact on some people’s religious practices

**Notes:**
Boone v. Boozman, E.D. Ark. (2002)

Arkansas law: all students must be immunized against Hepatitis B
Parent: this law violates the Free Exercise Clause because vaccination is against my religious beliefs
Court:
This is a valid and neutral law of general applicability because it targets public health, not religion
The law is constitutional even though it has an incidental impact on some people’s religious practices

Note: many statutes grant religious exemptions to laws requiring vaccination, examination, treatment, and other disease control methods
These exemptions are not constitutionally required
It would be constitutional for the CA legislature to do away with these exemptions

## Answer

*Why is it constitutional for the government to require people to be vaccinated even if vaccination violates their religious beliefs?*
- A vaccination law does not violate the Free Exercise Clause because it is a valid and neutral law of general applicability that is based on public health goals and that does not directly target religious conduct

## Questions

*Why is it constitutional for the government to subject workers in certain industries to random drug and alcohol testing without getting permission from the people being searched and without first obtaining a warrant? *
*Why is it constitutional for the government to conduct a nursing home inspection without getting permission from the organization being searched and without first obtaining a warrant?*

**Notes:**
Answer has to do with 4th Amendment search and seizure doctrine

## Search and Seizure

- 4th Amendment: “the right of the people to be secure in their persons, houses, papers, and effects, against _unreasonable_ searches and seizures shall not be violated, and no _warrants_ shall issue, but upon probable cause . . .” (emphasis added)
- Two 4th Amendment principles
- No _unreasonable_ searches and seizures
- A _warrant_ based on _probable cause_ is required to search or seize

**Notes:**
4th Amendment: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause . . .” (emphasis added)

We often think of the 4th Amendment in the criminal context
Compulsory collection and analysis of blood, urine, and other tissue constitutes a search
Health and safety inspections are searches

4th Amendment says two basic things
No unreasonable searches
A warrant based on probable cause is generally required before a search is conducted

## Balancing Test for Reasonableness

- Balancing test to determine whether a search is “reasonable:”

|     government public health goals | individual expectation  of privacy |
| --- | --- |

**Notes:**
Individual expectation of privacy: 
High: what you do with your time at home, your medical records, your purse
Low: what you do with your time at work, what you leave out in the back seat of your car

## Balancing Test in Action

- Federal regulation: railroad workers are subject to random drug and alcohol testing
- Employee: this is an unreasonable search
- Court:
- It is a weighty government goal to try to prevent train accidents and casualties
- Railroad workers have a minimal expectation of privacy around blood, breath, and urine tests
- The regulation is not unreasonable

**Notes:**
Federal regulation: railroad employees are subject to random drug and alcohol testing
Employee: this is an unreasonable search

Court:
Government goal: prevent accidents and casualties caused by workers under the influence
Individual expectation of privacy is minimal in this instance
Courts have routinely held that blood, breath, and urine tests are routine and involve low level intrusions
The employees signed up for a job in an industry that is regulated to ensure safety and that depends on their health and fitness

## Special Need Exception to Warrant Rule

- In a non-criminal context, no warrant is necessary so long as there is a “special need” for the government to conduct the search
- “Special need” means the warrant requirement is impractical
- E.g., random drug and alcohol testing for railroad workers, random drunk driving checkpoints, certain health and safety inspections

**Notes:**
In a non-criminal context, no warrant is necessary so long as there is a “special need” for the government to conduct the search

“Special need” means the warrant requirement is impractical

E.g., random drunk driving checkpoints, random drug testing for student athletes, certain health and safety inspections

## The Warrant Rule Applied to Inspections

- Search warrants are required except:
- If there is consent
- If there is an immediate threat to health or safety
- If the business being inspected is part of a heavily regulated industry
- If the inspection occurs in open air

**Notes:**
Search warrants are required except:
If there is consent
If there is an immediate threat to health or safety (a fire might rekindle, contaminated food might be served)
If the business being inspected is part of a heavily regulated industry (mining, firearms, alcoholic beverages, nursing homes)
If the inspection occurs in open air (dumpster, chimney smoke)

## Answer

*Why is it constitutional for the government to subject workers in certain industries to random drug and alcohol testing without getting permission from the people being searched and without first obtaining a warrant? *
*Why is it constitutional for the government to conduct a nursing home inspection without getting permission from the organization being searched and without first obtaining a warrant?*
- It does not violate the 4th Amendment  to conduct a search without obtaining permission or a warrant, so long as the search is “reasonable” and there is a “special need” for the search

## Question

*Why can’t the government ban smokeless tobacco advertisements within 1,000 feet of schools in urban areas? *

**Notes:**
The answer lies in the 1st Amendment

## Free Speech

- 1st Amendment: the government “shall make no law . . . abridging the _freedom of speech_”
- Key question: Is the government restriction targeted at the time, place, or method of the speech or is it targeted at the content of the speech?

**Notes:**

1st Amendment: the government “shall make no law . . . abridging the freedom of speech”

Does this mean that the government cannot regulate anyone’s speech at anytime?  No.  
The government can regulate a lot when it comes to the time, place, and method of speech
The government is much more restricted when it tries to regulate the content of speech
Is the government restriction content-neutral or content-based?

## Content-Neutral Restrictions

- In public places, the government can generally make content-neutral restrictions on speech
- Examples of valid content-neutral regulations:
- CA state law: no more than 33% of the windows of alcohol retailers may be covered with signs
- Ventura city ordinance: in M-2 zone, billboards larger than 300 square feet are prohibited

**Notes:**
In public places, the government can generally make content-neutral restrictions on speech
Content-neutral means the regulation does not apply to the message contained in the speech
A content-neutral regulation might restrict the time, place, or method of speech, but it does not regulate what the message in the speech may or may not say

Examples of valid content-neutral regulations:
CA state law: no more than 33% of the windows of alcohol retailers may be covered with signs
Ventura city ordinance: in M-2 zone, billboards larger than 300 square feet are prohibited
Compare these examples to a law prohibiting any signs or billboards that contain anti-war messages

(Test: restrictions must be narrowly tailored to serve a significant goal and they must leave open alternative channels of communication)

## Content-Based Restrictions

- It is very difficult for the government to make content-based restrictions on speech unless the speech is deemed unprotected or commercial
- _Unprotected speech_: calling “fire” in a crowded theater, child pornography, some types of defamation
- _Commercial speech_: advertising

**Notes:**
It is very difficult for the government to make content-based restrictions on speech unless the speech is deemed unprotected or commercial

Unprotected speech: calling “fire” in a crowded theater, child pornography and other “inciting words” or obscenity

Commercial speech: advertising

## Commercial Speech Test

- A government restriction on truthful advertising of lawful activity will be upheld if the restriction _directly advances_ a _substantial_ government goal and there is a _reasonable fit_ between the restriction and the goal

**Notes:**
Commercial speech test: A government restriction on truthful advertising of lawful activity will be upheld if the restriction directly advances a substantial government goal and there is a reasonable fit between the restriction and the goal

This is another means-ends test

## Commercial Speech Test in Action

- Massachusetts regulations: no smokeless tobacco ads within 1,000 feet of schools
- Court:
- This is content-based regulation of advertising, so commercial speech test applies
- The government goal (preventing youth exposure to tobacco ads) is _substantial_
- The regulations _directly advance_ that goal
- The _fit_ between the regulations and the goal is _unreasonable_ because the regulations cover 90% of urban land, so there is basically nowhere left to advertise smokeless tobacco to adults

**Notes:**
Lorillard v. Reilly (2001)

Massachusetts regulations: no smokeless tobacco ads within 1,000 feet of schools

Court
This is content-based regulation of advertising, so commercial speech test applies
The government goal is substantial because it is illegal and unhealthy for youth to dip and chew, and advertising has an effect on youth consumption of tobacco products
The regulations directly advance that goal
The fit between the regulations and the goal is unreasonable because the ban reaches 90% of cities so it leaves retailers and adults without a viable way to communicate and receive information about tobacco

## Answer

*Why can’t the government ban smokeless tobacco advertisements within 1,000 feet of schools in urban areas?** *
- Even though the ban would directly advance the substantial government goal of reducing youth exposure to smokeless tobacco advertisements, the fit between the ban and the goal is “unreasonable,” so the ban fails the 1st Amendment commercial speech test

## Summary of Learning Objectives

- Understand your power in relation to the other branches of government, the other levels of government, and the individuals you serve
- Recognize when your actions might have legal implications so you can alert your supervisor or contact your county counsel

**Notes:**
You have a lot of power to make, implement, and enforce policy

The Constitution places some limits that power
Legislature, judges, state government, and federal government all limit what you can do
Bill of rights limits your power with respect to individual citizens

Next time you are thinking about a new policy approach to a public health problem, or you are trying to get a sick patient to take her medication against her will, or you are conducting an inspection somewhere where you meet resistance, think about alerting your supervisor or contacting Don