Social risk and the transformation of public health law: lessons from the plague years.

This Article reviews historical and modern approaches to disease control, emphasizing the fact that, despite growing medical breakthroughs, we continue to face profound challenges to our national health and well-being. Part I also identifies the various governmental and political actors who currently are responsible for the development of public health law and policy and explores the limits of their power. This historical and structural background provides a context for the modern questions of public health law and policy addressed later in this Article. Part II examines in greater detail the model public health statute described earlier. It then explores the role that stigma, social hostility, and social risk play in the lives of people who experience serious illness. This Part surveys pertinent critiques of the traditional principalism of bioethics - particularly the value of autonomy - and notes that "neutral rules" often are insufficient to attend to the needs of those who are disenfranchised from wealth, power, or good health. Part II concludes with a survey of the structural influences that mitigate against legislators' and policymakers' attending to the interests of the disenfranchised. Building on Part II's observations, Part III introduces the Harm Assessment Protocol as a means of evaluating public health law and policy, including existing dominant public health law, the model public health statute, and possible future proposals. To illustrate the advantages of using the Protocol within the realm of public health law, I apply it to an important legal and policy conflict that has arisen in the context of attempting to contain the spread of communicable diseases: the reporting of names of HIV-infected people to the government ("HIV name reporting"). This application of the Protocol reveals that although conducting disease surveillance may be a compelling state interest, the gathering of names does not satisfy the least restrictive alternative prong. As it is possible to gather essentially the same information by using unique identifiers that do not reveal personal identifying information, legislative and policy leaders should reject HIV name reporting as a means of conducting disease surveillance. Part III will further demonstrate that the Harm Assessment Protocol is an important addition to the current state of the law because it both privileges the voices of the disempowered and simultaneously remains grounded in the legitimate governmental need to prevent and treat disease. The success of the Protocol thus challenges the accepted wisdom that protecting the public health requires minimizing individual rights and liberties. On the contrary, this Article demonstrates that successful public health policy requires assessing the social risk factors experienced and perceived by targeted groups. By so doing, we are able to shift the discussion away from competing rights and develop a more thoughtful evaluation of both existing and proposed public health policy. As a result, we have the potential to protect the public's health and well-being better than ever before.