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Public Health Law: Power, Duty,
Restraint
by
Lawrence O. Gostin, 489 pp, paper, $24.95, ISBN
0-520-22648-8, Berkeley, University of California Press,
2001.
JAMA. 2002;287:246-248.
The
terrorist attack on the World Trade Center has triggered
a national debate on the appropriate balance between
individual rights and public safety. Public health law
has addressed this balance for more than 200 years. From
AIDS and Ebola to the local deli and neighborhood dog,
public health regulations touch every person and are more
directly responsible for day-to-day health and safety
than any other governmental function. Yet there is no
private practice in public health law, no government
career track for public health lawyers, no professional
association for public health lawyers, and extremely
limited and outdated practice materials.1
This has profound implications for public health
practice. Professor Gostin's book is an attempt to
give shape to contemporary public health law, and,
through its agency, public health itself.
Gostin presents a holistic view of
public health as everything that affects health and
safety. This includes personal medical and psychological
care; behavior such as smoking, exercise, diet, and
substance abuse; cultural issues such as gun ownership
and television programming for children; and global issues
such as international human rights. He argues for a
single regulatory model that spans the breadth of public
health. In this model, the state only interferes with
individual autonomy and privacy after careful research
has determined that: (1) there is a public health threat;
(2) the least intrusive strategy is being used to control
the threat; and, ideally, (3) the regulated population
accepts the regulation. If the population does not accept
the intervention, then it is an open question whether the
state should proceed, even if it is to the public's
benefit. The model is heavily biased to due process: the
state's actions should be extensively reviewable by the
courts; and the state should have to get judicial
permission in each specific case before imposing
significant restrictions on a person or business, absent
narrowly defined exigent circumstances. Since most state
laws do not provide these protections, Gostin supports the adoption
of model public health laws and, to the extent
constitutionally permissible, the imposition of these
standards through federal law.
Gostin concedes that his model rejects
more than 200 years of public health law, extending back
to the colonial period. The courts have always recognized
that the state power to do core public health
functions—requiring immunizations, restraining contagious
tuberculosis carriers, and shooting bad dogs—is
fundamentally different from the power to make people quit
smoking, eat a better diet, and get rid of their guns.
Using the same standards for both types of public health
regulation must weaken the power to do core public
health. Gostin sees this as a benefit,
believing that the courts have been too supportive of
public health authority. As he writes, after reviewing
the traditional standards for judicial review of public
health laws:
Two problems, then, are evident in constitutional
analysis. First, the standards provide a rigid
"all-or-nothing" assessment, rather than a graduated
examination based on the burdens posed by the
discriminatory classifications or infringements on
autonomy, privacy, and liberty. Second, rationality
review, by far the most common form of scrutiny,
places few demands on public health authorities to
justify their actions based on scientific evidence of
risk reduction.
Gostin's model has substantial support
in the broadly defined public health community, ie, the
one that includes personal medical services and other
noncore public health functions. This raises two
questions: (1) why do some public health professionals
reject traditional public health law, and (2) is Gostin's model preferable
to traditional public health law? These are best
addressed in the context of traditional public health law.
The legal basis for government agency law, including
public health law, is called administrative law.2
It is well-established legal doctrine, taught in law
schools and subject to extensive scholarly discussion,
including a major text by Supreme Court Justice
Breyer.3
The courts defer to agencies, letting them act with little
judicial review as long as they are doing what the
legislature directed them to do and do not otherwise
infringe on constitutional rights. This deference is
based on four assumptions: (1) agency personnel are
better equipped than judges to make scientific and technical
decisions; (2) agencies have flexible rules so they can
respond to new threats quickly; (3) agencies must act in
the face of uncertainty; and (4) public resources are
limited so agencies must balance the cost of protecting
individual liberty against its effect on the public good.
Bluntly, the courts recognize that agencies make mistakes
but that in many situations the cost and delay involved
in avoiding mistakes does more harm than the
mistake.4
Since public health agencies deal with direct threats to
health and safety, they get the most deference from the
courts. As long as there is a rational relationship between
the agency's actions and the threat to the public health,
the court will not interfere. This is the rationality
review that Gostin criticizes.
This book relegates administrative law to a few pages toward
the end. The great breadth of modern agency law is
ignored. Most of the book is devoted to civil rights law,
and the discussion of the public health law cases
stresses any support for individual liberties and
judicial review, even if the holding of the court was
strongly in favor of the agency.
Traditional public health deals with sanitation, food
safety, drinking and waste water, nuisance abatement, and
other activities that do not involve individual health.
Individual health is a concern when it affects the public
through the spread of communicable diseases such as
measles and tuberculosis. These are managed with
immunizations, treatment, and personal restrictions as
necessary, but individual medical care is not a core
public health function. Individual rights are secondary
to public safety. When immunizations ended the polio
epidemics in the 1950s and antibiotics were the new
wonder drugs, the public lost its fear of epidemic
disease.5
The government shifted its support to chronic disease
research and personal medical care services. Medical care
providers and social workers displaced traditional public
health professionals, bringing with them the ethos of the
physician-patient relationship and its focus on individuals
rather than society. By the 1970s, health departments and
schools of public health were dominated by individuals
who saw their duty as helping their patients, not
protecting society.6
The health law issue of the 1970s was patient autonomy
and informed consent. Few public health professionals,
and, with an occasional exception,7
fewer lawyers were concerned with public rights.
This emphasis on personal medical care and individual rights
resulted in the failure to close the gay bathhouses in the
1970s. The bathhouses facilitated high-frequency sexual
contact8
and by 1975 resulted in well-documented epidemics of
enteric and sexually transmitted diseases.9
Hepatitis B virus (HBV) infection became endemic, with a
typical study finding 58.1% of bathhouse patrons were
positive for HBV antibodies.10
Had bathhouses been closed, AIDS would still have come to
the United States, but it would not have spread widely
before being discovered, and many lives would have been
saved.11
When AIDS put public health in the headlines in the 1980s,
it attracted the interest of lawyers such as Professor
Gostin, whose background
was not in public health but in mental health law12
and civil rights law. They first opposed HIV reporting
and contact tracing, which they saw as an unwarranted
invasion of individual rights.13
Consistent with Professor Gostin's model, they
rejected the use of traditional sexually transmitted infection
control techniques until all the studies could be repeated
for HIV. While physician groups, including the American
Medical Association, supported reporting and contact
tracing for HIV,14
the lobbying by civil rights groups delayed its
implementation in many states for several years.15
Gostin has written an elegant brief
arguing that we should reject traditional public health
law. He, and many public health professionals, would
substitute a system that puts individual rights first,
that dramatically increases the legal burden on public
health action, and that would intimately involve the
courts in all aspects of public health enforcement.
The courts have rejected this model for 200 years because
they understand that public health agencies must
constantly confront new challenges with limited resources
and that there is seldom time to find the perfect
solution.16
The tuberculosis epidemic in the early 1990s17
was rooted in revisions of the public health laws in the
1980s giving all disease carriers greater due process
before being restricted,18
making it difficult to use proven control
strategies.19
All indications are that the future holds more
challenges20
that must be met with fewer resources.21
Imposing strict judicial scrutiny on public health
enforcement will make it impossible to react to emerging
disease threats quickly, and the costs of extensive
judicial review will divert resources from all public
health services.
The best protection for the public's health and the rights
of individuals is a properly funded public health system
whose personnel are trained and experienced in core
public health and public health law. A system that puts
public health decision making in the hands of judges,
rather than public health professionals, serves neither
the public interest, nor, in the long term, the interests
of individuals.
Edward P. Richards III, JD,MPH, Reviewer
Center for Public Health Law
University of
Missouri at Kansas School of Law
Kansas City, Mo
REFERENCES
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1.
Centers for Disease Control Public Health Law Collaborative,
available at: http://www.phppo.cdc.gov/PhLawNet/default.asp?pg=collaborative.
Accessed September 4, 2001.
2.
Richards EP, Rathbun KC. Public health law. In:
Maxcy-Rosenau-Last Public Health and Preventive Medicine.
Wallace RB, ed. Phildelphia, Pa: Appleton & Lange;
1998:1147-1154.
3.
Breyer SG. Administrative Law and Regulatory Policy: Problems,
Text, and Cases. New York, NY: Aspen Law & Business; 1999.
4.
Matthews v Eldridge, 424 US 319 (1976).
5.
Rosenau MJ. The uses of fear in preventive medicine, Boston
Medical and Surgical Journal. 1910;162:305-307, available at: http://biotech.law.umkc.edu/cphl/history/articles/Rosenau_fear.htm.
Accessed September 4, 2001.
6.
Richards EP, Rathbun KC. The role of the police power in 21st
century public health. Sex Transm Dis. 1999;26:350-357. ISI |
MEDLINE
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Grad FP. Public Health Law Manual: A Handbook on the Legal
Aspects of Public Health Administration and Enforcement. New
York, NY: American Public Health Association; 1970.
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Shilts R. And the Band Played On: Politics, People, and the AIDS
Epidemic. New York, NY: St Martin's Press; 1987.
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Szmuness W, Much I, Prince AM, et al. On the role of sexual behavior
in the spread of hepatitis B infection. Ann Intern Med.
1975;83:489-455. ISI |
MEDLINE
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Wolf FC, Judson FN. Intensive screening for gonorrhea, syphilis, and
hepatitis B in a gay bathhouse does not lower the prevalence of
infection. Sex Trans Dis. 1980;7:49-52. ISI |
MEDLINE
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Thompson JR. Is the United States country zero for the First-World
AIDS epidemic? J Theor Biol. 2000;204:621-628. ISI |
MEDLINE
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Isaac RJ, Arnat VC. Madness in the Streets: How Psychiatry and
the Law Abandoned the Mentally Ill. New York, NY: Free Press;
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Richards EP. Communicable disease in Colorado: A rational approach
to AIDS. U Denver Law. 1988;65:127-179.
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Matter of New York Society Surgeons v Axelrod, 572 NE2d 605
(1991).
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Joseph SC. Dragon Within the Gates: The Once and Future AIDS
Epidemic. New York, NY: Carroll & Graf Publishers; 1992.
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Richards EP. The jurisprudence of prevention: society's right of
self-defense against dangerous individuals. Hastings
Constitutional Law Quarterly. 1989;16:329-392.
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Frieden TR, Sterling T, Pablos-Mendez A, Kilburn JO, Cauthen GM,
Dooley SW. The emergence of drug-resistant tuberculosis in New York
City. N Engl J Med. 1993;328:521-526. ABSTRACT/FULL TEXT
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Richards EP, reviewer, Rathbun KC, reviewer Family Law
Quarterly. 1989;23:137-142. Review of: Bayer R. Private Acts,
Social Consequences. ISI
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Iseman MD, Cohn DL, Sbarbaro JA. Directly observed treatment of
tuberculosis: we can't afford not to try it. N Engl J Med.
1993;328:576-578. FULL
TEXT
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Morse SS, ed. Emerging Viruses. New York, NY: Oxford
University Press; 1993.
21.
Institute of Medicine. The Future of Public Health.
Washington, DC: National Academy Press; 1988.
Books, Journals, New Media Section Editor: Harriet S.
Meyer, MD, Contributing Editor, JAMA; David H. Morse, MS,
University of Southern California, Norris Medical Library, Journal
Review Editor; adviser for new media, Robert Hogan, MD, San
Diego.
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