Public Health and the Law
PUBLIC HEALTH AND THE LAW
In The Future of Public Health, published by the Institute of Medicine in 1988, the mission of public health is defined as "fulfilling society's interest in assuring conditions in which people can be healthy." Public health law covers those areas of the law that advance this purpose. The reach of public health law is as broad as the reach of public health itself.
INTERRELATION OF PUBLIC HEALTH AND THE LAW
Law is a body of directions or commands requiring or prohibiting certain conduct, enforceable by legal sanctions. It is also a body of directions or commands that grant authority to a public body or agency or requires such a body or agency to carry out designated powers. Thus, public health law forbids persons to engage in activities that endanger the health of others, and it specifies government agencies to carry out certain programs to advance public health and to prevent activities that are harmful to the health of individuals or of the public.
When we discuss public health, it becomes apparent that the "public" element is the legal component. Without the law (without legal authorization of public health programs, including the legal authorization and appropriation of public funds), the very existence of the field of public health is in question.
That public health law seeks to affect personal conduct is implicit in some of its common directions: Do not engage in unprotected sexual activity if you suffer from a sexually transmitted disease (STD); do not practice medicine or treat patients unless you are a licensed physician; do not operate an X-ray machine unless you have a license to do so; do not operate a restaurant unless you have a permit; do not connect the drains of a building to a sewer line unless you are a licensed plumber. So, too, examples of directions that form part of the institutional requirements of public health laws are likely to take the following form: You, commissioner or agency, are authorized or required to set standards for the practice and licensure of medicine, of dentistry, of a nurse-midwife. Other examples of institutional authorizations and requirements of public health law may include the following: You, commissioner or agency, are authorized and required to set standards for the licensure and safe operation of nuclear power plants; or, You, administrator or agency, are authorized and required to set standards for healthful ambient air quality, including standards for
BASIS FOR THE EXERCISE OF PUBLIC HEALTH POWERS
In the United States, governments at every level— federal, state, and local—exercise public health powers. Depending on the level of government, public health powers are based on different authorizations. States and, by delegation from the state, local governments base their authority to regulate and provide for the protection of public health on the police power to provide for the health, safety, and welfare of the people. This police power is a plenary power that the states have by virtue of being states. Governments are created so that they may exercise this power. As a plenary power, it requires no grant by the state constitution, though several states do mention the police power in their organic law. State governments are the original governments in the nation, antedating the federal government, and they hold the police power because they are sovereign governments. The police power is inherent of government, and it has been so regarded by the United States Supreme Court in the bedrock public health law case of Jacobson v. Massachusetts, decided in 1905. The case upheld a Massachusetts law that enabled the city of Cambridge to require all adults to be vaccinated to prevent the spread of smallpox against a claim that the law violated the defendant's right to life and liberty without due process of law. The case also demonstrates that the public health powers of local governments are derived by delegation from the state legislature, as in situations where city boards of health may pass an ordinance to prevent the spread of communicable disease.
Unlike state governments, which have the plenary police power, the federal government is a government of delegated powers, and the power of Congress to pass laws on particular subjects must be sought in the federal constitution. The federal government exercises vast public health powers, both to regulate public health and to provide for public health services.
Although other provisions of the Constitution may be drawn on, federal public health powers, in the main, rest first on "commerce power"—the power of Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes," under Article 1, Section 8, clause 3 of the U.S. Constitution. It also rests on the so-called "taxing and spending power"—the power to "collect taxes … to … provide for the… general welfare of the United States," under Article 1, Section 8, clause 1.
The power to regulate interstate commerce allows Congress to regulate whatever passes in commerce between the states, as well as whatever affects interstate commerce. Thus Congress has the authority to regulate not only the commercial transactions and transportation of merchandise between the states, but also all of the materials that pass in interstate commerce. A notable example of this power is the Federal Food, Drug, and Cosmetic Act (1938), which regulates the food and drugs that pass in interstate commerce, including the wholesomeness of food and the safety and efficacy of drugs and medical devices. By delegation from Congress, the Food and Drug Administration (FDA) controls and regulates what goes into the kinds and packages of food we consume (including the number of peanuts in peanut butter), and virtually everything that goes into every bottle of medicine, pills, salve, or ointment. Under the commerce power, the FDA exercises direct federal regulatory control by promulgating its own regulations and by overseeing enforcement of the law through staffs of professionals, administrators, and inspectors. Other examples of regulatory controls include the slaughtering of beef and the manufacture of beef products under the Federal Meat Inspection Act, and the production, slaughter, and sale of poultry under the analogous Poultry Products Inspection Act. Because it is difficult to tell a "local" chicken from an "interstate" chicken, the production of poultry products within a state that affects interstate commerce is also regulated.
Commerce power controls include the regulation of the production and sale of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, as well as the sale of toxic substances—including lead paints—under the Toxic Substances Control Act, and the control of unsafe consumer products under the Consumer Product Safety Act. All
THE TAXING AND SPENDING POWER
The taxing and spending power generally does not involve direct federal regulatory controls, but instead operates through state and local governments. Federal participation in public health programs has long operated through grant-in-aid programs, which were known as categorical grants in the 1930s and 1940s. Grant programs involve grants of money by the federal government to state and local governments or instrumentalities. Such grants are conditioned on compliance by the recipients of a grant with the requirements set by Congress in the authorizing legislation. State and local governments may get federal grant money only if they meet certain conditions. These often include the provision of state or local matching grants, but more importantly the conditions may require the states and localities to undertake certain activities to meet federal requirements.
Under an early, still existing program, the federal government provided money to state and local governments for the construction of publicly owned waste treatment works in order to improve water quality through treatment of sanitary waste. To obtain these essential grants for the protection of public health, states and localities must provide matching funds and must assure that the waste treatment works meet adequate construction and public health standards, that the states and localities engage in needed planning, and that the waste treatment works are placed in appropriate locations. This grant-in-aid program was established in 1972 under the Federal Water Pollution Control Act. Grant-in-aid programs may also be encountered in the funding of hospital construction, mental health programs, newborn and maternity programs, and in many other programs. Congress, through a variety of grant-in-aid programs, has triggered numerous health initiatives, contributing significantly to new public health developments in state and local governments nationwide.
Other health-related programs based on the taxing and spending power include programs for housing and urban renewal, for school lunch programs, and for institutional services. These include health-planning services, such as preventive health-service programs, programs for the prevention of sexually transmitted diseases, community mental health programs, and alcoholism and drug addiction treatment and rehabilitation programs. Perhaps one of the most notable grant-in-aid programs is the Title 19 Medicaid program, which assists the states in providing for the medical costs of persons defined as "medically indigent."
Beginning in the 1970s, the Congress, through the grant-in-aid mechanism, supported many initiatives for environmental protection, designed not only to protect the environment, but also to protect public health. Federal water pollution and air pollution legislation initially provided the states with the funding necessary to develop programs to control environmental pollution—to create decent and healthful ambient air and water quality for the protection of public health.
Programs to protect the environment generally constitute a significant expansion of public health protection. Begun in the late 1960s, environmental programs reflect conservational as well as aesthetic concerns for the quality of the environment, but the massive regulatory system managed by the Environmental Protection Agency (EPA) is largely designed to protect the health of the human population against toxic pollutants and against the pollution of the water, the air, and the natural environment.
The vast reservoir of federal powers for the protection and enhancement of public health may be exercised both under the commerce power and under the taxing and spending power. Oftentimes, as the law develops, the federal government may get into public health matters indirectly, through the taxing and spending power, and then later take up a regulatory role under the commerce power. In the control of air pollution, for instance, early federal legislation in the 1950s simply provided grants-in-aid to states and municipalities to address their problems. Later, in regulating harmful emissions from automobiles, Congress brought the commerce power to bear in authorizing federal emission controls and their enforcement. It is
PUBLIC HEALTH LAW AND LEGISLATION
All of the public health law initiatives mentioned above, whether state or federal, originated from legislation at either the Congressional, state, or local level. Law in this country is divided into three types: (1) traditional, unwritten, or common law;(2) judge-made law, which is based on case-law decisions; and (3) the more systematic, thoroughly documented, and vastly detailed statutory law. There is hardly any federal common law, and in areas of public law such as public health law there is nearly exclusive reliance on legislation, or statutory law. In some isolated areas, such as nuisances and their abatement, there is frequent reference in the cases to an earlier non-statutory regime, but these are historical and traditional references. Today, nuisances and their abatement are addressed by state or local statutory law, and they generally fall under the jurisdiction of the lower criminal courts. In the abatement of nuisances, the statutory law may rely on injunctions, a form of equitable relief. Public health law is a field of statutory law and a field of administrative law because almost all of it operates through administrative agencies functioning under appropriate legislative delegation.
At the turn of the twentieth century, public health and its legal regulation dealt largely with the prevention of communicable disease and with environmental sanitation, including the control of the disposal of human and other wastes—with some concern for water purity and what has been referred to as the "hygiene of housing." There was some interest in food and milk sanitation and some incipient controls of health in the schools, but there was very little else. The major expansion of the field is largely a twentieth-century development. Beginning in the nineteenth century there was some state concern for public health, particularly in the control of communicable disease. Quarantine laws were not uncommon. New York had an elaborate law in the 1820s requiring ships to anchor in the harbor near Marine Hospital on Staten Island. The law prescribed rules for clearing quarantine, requiring whitewashing and fumigation of vessels and the washing and airing of clothing and bedding. Rules were particularly strict where "yellow, bilious, malignant or other pestilential or infectious fever had existed, or if disease had broken out on board of the ship." There were also state laws allowing nuisances to be abated when they were a danger to health and allowing local governments to limit to certain restricted areas the conduct of any trade or employment offensive to the inhabitants or dangerous to the public health. The regulation of food products in the early nineteenth century was largely of an economic nature, but public health and consumer protection were at least secondary goals. Some states also gave local medical societies the power to examine and license physicians; unlicensed physicians could not use the courts to collect their fees. Other laws made the unauthorized practice of medicine the subject of a fine.
Occupational licensing of public health professions became fully established between 1890 and 1910, with licenses for practicing of medicine, dentistry, and pharmacy becoming regularly established. During this period midwives were also licensed, as were veterinarians, chiropractors and osteopaths, undertakers, embalmers, and funeral directors. It was also a time when licensure was extended to other occupations, such as plumbers, barbers, and ferriers. All of these licensing laws were based on the police power and referred to public health and safety. Though the protection of public health provided a basis for such legislation, in many instances the real motive was economic, both to collect licensing fees and to provide a protected economic position for the licensed trades and occupations.
FROM REGULATORY TO SERVICE PROGRAMS
In the nineteenth and early twentieth centuries, public health law was primarily a regulatory field, prescribing what affected persons and professionals were required or forbidden to do. In the 1930s the field added a service mission to its regulatory mission. Instead of focusing on the prevention of disease, legislation began to establish agencies to
DEVELOPMENTS IN THE LAST PART OF THE TWENTIETH CENTURY
In the last half of the twentieth century, the fields of public health and public health law underwent many changes. In 1965, Medicare and Medicaid were established. These health care reimbursement programs brought the government into the payment and provision of health care, introducing new regulatory controls into medical and treatment services. Government, or some other regulated third party, assumed the major cost of medical treatment for significant parts of the population. In consequence, the government has to consider what it is paying for, including the quantity and quality of health care services it subsidizes. What had previously been a matter of private arrangement between physicians and patients became a transaction imbued with a public interest. When Medicare and Medicaid legislation became effective in 1965, the emphasis on patient care and its cost began to overshadow earlier concerns for environmental sanitation and other preventive activity.
Another significant change in public health law resulted from a 1973 decision of the Supreme Court. In Roe v. Wade the Court held that a pregnant woman has a choice whether to bear a child or to terminate her pregnancy. This decision involved physicians and hospitals in issues fraught with religious and moral concerns. In turn, women's freedom of choice required the availability of abortion services, and raised the question whether states were under an obligation under Medicaid to defray the cost of abortion services for the medically indigent.
Because government is involved in the provision and payment of medical care, it has also become involved in other ethical issues in health care. Both in the rendition of medical services and in the growing government responsibility for the funding of medical research, the informed consent of the patient, as well as of persons who are subjects of clinical experimentation, has involved the government in the resolution of public health-related ethical issues. Moreover, medical advances leading to the survival of severely threatened newborn infants, and the capacity of medicine to prolong the life of severely ill persons on respirators have raised ethical questions both at the beginning and at the end of life with greater frequency and greater clarity. So too, scientific breakthroughs in new reproductive technologies, including in vitro fertilization, ovum implants, and surrogate mothering, have raised ethical issues new to public health. A host of new ethical problems have also arisen from new and dramatic organ transplant techniques.
New ethical issues have followed new genetic knowledge and techniques discovered or stimulated in consequence of the federally sponsored Human Genome Project, which has begun a new diagnostic approach to the treatment of disease where not only are pathogens considered, but also individual genetic structure and inheritance. New
By the end of the twentieth century the field of public health law encompassed broader and more sophisticated concerns for physical and mental health. It included a system for the medical care of the elderly and the indigent, either as a governmental system or as a system of social insurance. Public health law now also covers broad environmental concerns, including the control of air and water pollution, the control and disposal of conventional as well as toxic and hazardous waste, the control of pollution by ionizing radiation, as well as expanded concerns for the safety and wholesomeness of food and pharmaceuticals. It also covers many aspects of human reproduction, including elements of population control. It covers the control of addictive substances, such as alcohol, narcotics, and tobacco. There is an increased concern with occupational health, covering the dangers of the workplace, as well as accident prevention in the workplace, in the home, and on our highways.
THE DIVERSE CHARACTER OF PUBLIC HEALTH LAW
Public health law is a vast field and does not come in a single neat package. The many parts of the field share the common purpose of advancing the health of the population. Public health in our cities, and worldwide, depends on a reliable supply of potable water, decent sanitary provisions, sewer lines, and the sanitary disposal of human and other waste—all of which require government services and appropriations based on law. Public health also depends on adequate provisions for the disposal of toxic and industrial waste and the management of waste. What makes our cities wholesome and livable are adequate provisions, legally established and authorized, for street cleaning and the transportation and disposal of waste. Public health laws assure healthful conditions through waste disposal, housing and building codes, and codes regulating the installation of sewers and water pipes and other infrastructure facilities. Many of these controls are found in municipal and local law. In the United States, as well as in other parts of the world, public health has been advanced not only by better medical care and the advances of modern medicine, but by the general improvements in cleanliness and physical and sanitary conditions, often left to local law and local governments. These are based on the requirements of housing legislation and building codes, which not only provide protection against the elements but prohibit overcrowding and require adequate ventilation to protect against the spread of communicable disease. Adequate housing is needed to provide a sound basis for a healthy adult life and for raising healthy children.
The future agenda for public health and public health law, both in the United States and worldwide, is to resolve the distributional inequality between the rich and the poor in health services and in the distribution of the means necessary for a wholesome life. The many ethical issues growing out of the developments in the field deal largely with so-called microethical issues, capable of resolution between physicians and patients with the assistance of an ethicist or an institutional committee. The overwhelming issue to be resolved, however, is one of macroethics and centers on the question of how to reduce the gap in the quality of care, which still depends on individual means. The difference in the number of infant deaths and the large gap in life expectancy between the most-favored and least-favored economic, racial, and ethnic groups will not yield to the efforts of ethicists, but will require changes in public policy, in public health planning, and in budgetary allocations. Changes in public health law are needed to advance distributional equity in the availability of health care through programs of insurance and subsidy. Legislation can provide for infrastructure developments in depressed neighborhoods, and for improvements in the availability of housing so as to abolish the scourge of homelessness. One of the current aims of public health must be to do away with the current reality that to be poor means to be in ill health.
FRANK P. GRAD
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Table Of Contents
- PUBLIC HEALTH AND THE LAW
- INTERRELATION OF PUBLIC HEALTH AND THE LAW
- BASIS FOR THE EXERCISE OF PUBLIC HEALTH POWERS
- COMMERCE POWER
- THE TAXING AND SPENDING POWER
- PUBLIC HEALTH LAW AND LEGISLATION
- FROM REGULATORY TO SERVICE PROGRAMS
- DEVELOPMENTS IN THE LAST PART OF THE TWENTIETH CENTURY
- THE DIVERSE CHARACTER OF PUBLIC HEALTH LAW