# Presentation: 377429

## Law as the Basis of Public Health Action

- Frederic E. Shaw, MD, JD
- Richard A. Goodman, MD, JD
- Public Health Law Program, PHPPO
- Centers for Disease Control and Prevention
- Atlanta, Georgia

*"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.” *

## Law:The Basics

## What is the Law?

- The rules/commands by which we must live
- Administered by force
- Defined by:
- _Rights_ accorded you as a member of a society.
- _Duties_ imposed on you as a condition of living in a society.
- The concept of _justice_

## What is Public Health?

- 	“What we, as a society, do collectively to assure the conditions for people to be healthy.”  IOM, 1988

## What is Public Health Law?

- The discipline by which the state or other actors use law to change the health of a population, including
- The study of the _powers and duties_ of the state or other actors to assure the health of a population,
- The _limitations on the power of the state_ to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals in order to assure the health of a population, and
- The _limitations on the duties of the state_ to assure the health of a population

## Eight Types of U.S. Legal Authority

- U.S. Constitution
- Treaties  • Federal statutes
- Federal regulations
- State constitutions
- State statutes
- State regulations
- Local authority
- The common law

##  Judges Make Law, Too

**Judge decides case**
**and interprets what the **
**legislature meant by the **
**statute**

**Legislature acts; **
**president/governor approves**

**A party is aggrieved**
**by the statute**

**Party files suit in court**

**Other judges are bound to follow**
**interpretation (*****stare decisis*****)**

## Core Concepts

## The U.S. Constitution

- Drafted 1787
- Took effect 1788
- “Supreme law of the land”
- Limited powers
- The doctrine of enumerated powers

## Federalism

- United States: Not a _national_ government, but a _federal_ government
- The States:
- _sovereign_, independent governments in themselves
- retain all powers _not expressly delegated_ to the U.S.
- Beauty of federalism
- “In the tension between state and federal power lies the promise of liberty”  *Gregory v. Ashcroft, *1991
- The states as laboratories for experimentation
- Assures decentralized government

## The Tenth Amendment (1791)

- 	“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

## The Police Power

- Natural inherent authority of the sovereign to regulate private interests for the public good
- Retained by the States, _not_ ceded to the federal government
- Includes wide powers to:
- Restrict a person’s personal liberty
- Restrict a person’s ability to work
- Seize property without compensation

## Examples of the States’ Police Power

- Require a child to be vaccinated as a condition of attending school
- Involuntarily detain a person who has a communicable disease
- Search, seize, and destroy property in order to control disease spread, sometimes without compensation
- Throw up a *cordon sanitaire* around a city to prevent disease spread

## Regulations

- Laws created by the executive branch of government
- Must be based on delegation of authority from legislature
- Have the full force of law
- Must be created through a statutory process
- Must not violate due process (notice, hearing)
- Violations and punishments are usually civil and can be appealed to judges

## Example of a Regulatory Delegation: 42 U.S.C. § 264 (1944)

- “The Surgeon General, with the approval of the Administrator [Secretary], is authorized to _make and enforce such regulations_ as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

## Example of a Regulation: 42 C.F.R. § 70.2 (Aug 16, 2000)

- 	Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.

##          Balancing the Rights of Individuals With the Needs of the Community 

## Constitutional Rights of Individuals

- Amendments 1-10 (called the Bill of Rights) ratified in 1791
- Others rights added 1795-
- Most relevant to public health:
- 1st (1791)	Freedom of religion and speech
- 4th (1791)    Unreasonable search and seizure
- 5th (1791)    Due process (federal); takings
- 14th (1868)  Due process; equal protection

## The 1st Amendment:Freedom of Religion and Speech

-    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ...”

## The 4th Amendment:Unreasonable Search and Seizure

-    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....”

## 4th Amendment Impact onPublic Health Action

- Public Health Inspections
- Governed by the 4th Am.
- Unreasonable presumptively if conducted without a warrant
- Medical Testing
- Collection and analysis of biological specimens from a person is a “search”
- To determine if “reasonable,” courts balance public health need against privacy
- In general, courts accept government’s  assertions of need

## The 14th Amendment:Due Process of Law

-    “... nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

## Due Process of Law	

- Procedural due process
- What process is due? (notice, opportunity to be heard, counsel, right to call witnesses, right to review by a judge)
- Substantive due process - protection against interference with “liberty”
- Example: The right to privacy

## The Right to Privacy	

- Supreme Court has struck down state laws on privacy grounds:
- Prohibiting teaching of foreign languages at home (Meyer, 1923)
- Requiring children to attend only public schools (Pierce, 1925)
- Compulsory sterilization (Skinner, 1942)
- Prohibiting the use of birth control (Griswold, 1965)
- Regulating abortion in first trimester (Roe, 1973)

## Equal Protection	

- The concept that similarly situated persons should be treated similarly by the government
- Government may discriminate between groups of people, but must have a reason
- Example: Quarantining nonvoters but not voters in an epidemic area
- Courts would examine using strict scrutiny

## JACOBSON v. MASSACHUSETTS SUPREME COURT OF THE UNITED STATES197 U.S. 11; 25 S. Ct. 358; 49 L. Ed. 643; 1905 U.S. LEXIS 1232 Argued December 6, 1904  February 20, 1905

## Jacobson: Key Holdings

- Police power upheld
- No absolute right to be wholly free from restraint.  Restraints necessary for the common good
- Deference for legislature
- Court’s approval of public health intervention depended on:
- Public health necessity
- Reasonable means
- Proportionality
- Harm avoidance

##            The Legal Basis of Public Health Action in Emergencies

##     Smallpox,Boston1901

## Sources of Authority for Emergency Control of Disease

- Federal
- Commerce Clause
- “The Congress shall have power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  Art 1, Sec 8.
- Tax and spend power
- Federal statutes
- State
- Police powers
- State statutes

## Bioterrorism

- Most legal authorities needed already exist
- Five instructive events
- Anthrax – need for joint training and cooperation between public health and law enforcement
- West Nile Fever – law around chemical abatement
- Smallpox vaccine – liability and compensation
- SARS – quarantine and isolation
- Monkeypox – integration of federal and state agency efforts

## Bioterrorism Legal Issues

- Collection of records and data: disease reporting, surveillance, and privacy
- Control of property
- Management of persons: quarantine, detention, and isolation
- Legal immunity
- Access to communications

## Example of a State Statute

- 	“California Government Code Section 101040.  The county health officer may take any preventive measure that may be necessary to protect and preserve the public health from any public health hazard during any ‘state of war emergency,’ ‘state of emergency,’ or ‘local emergency,’ as defined by Section 8558 of the Government Code, within his or her jurisdiction.”

## Example of a State Statute

- 	“California Government Code Section 100170.  The department may commence and maintain all proper and necessary actions and proceedings for any or all of the following purposes:
- (a) To enforce its regulations.
- (b) To enjoin and abate nuisances dangerous to health.
- (c) To compel the performance of any act specifically enjoined upon any person, officer, or board, by any law of this state relating to the public health.
- (d) To protect and preserve the public health.”

## Draft Model Emergency Health Powers Act

- Commissioned by CDC after 9/11
- Current public health laws  too antiquated and inadequate to ensure a strong emergency response?
- A tool for states to use in assessing adequacy of relevant public health laws

## New Pressures, New Partners: CDC “Forensic Epidemiology” Training Course

- Course Scope
- Concurrent criminal and epidemiological investigation
- Background
- Issues identified during Fall 2001 (e.g., similarities / differences in investigative methods and operational implications).

## Public Health and Law Enforcement Goals Compared

- Law Enforcement:
- Stop further crimes
- Protect health and safety of public
- Apprehend and convict criminals

- Public Health:
- Stop further cases of disease and outbreaks
- Protect health and safety of public
- Build science base for future prevention

## Public Health and Law Enforcement Investigations Compared

| Characteristics | Public Health | Law Enforcement |
| --- | --- | --- |
| Event Recognition | Surveillance or call from clinician | Announced by attacker or is evident |
| Challenges to Recognition | Few syndromes are clearly the result of BT; difficulty distinguishing natural from BT origin | Large number of hoaxes and non-credible threats; delays in notification by PH; copycat threats |
| Initial Data Collection | Hypothesis generation; “shoe leather” epidemiology and comparative studies | Hypothesis generation; questioning of witnesses and suspects; follow-up of tips |
| Confirmatory Data Collection and Analysis | Controlled by comparative epi studies; limited by scientific rules of causation | Controlled by circumstantial and lab evidence, witnesses, confessions; limited by Constitution and rules of evidence  |
| Validation of Conclusions | Effect on disease control; acceptance by scientific peer reviewers | Acceptance by judges, grand and petit juries |
| Goal | Disease prevention and control | Conviction of criminals; prevention and deterrence  |

- Adapted from Butler, et al., 2002

##          Law as a Public Health Tool

## Ten Great Public Health Achievements, United States, 1900-1999

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

## Example: Control of Hepatitis B

## http://www.phppo.cdc.gov/od/phlp/