Law and the Public's Health: The Legal System Provides Many Tools to Promote Public Health, but It Includes Necessary Limits to Protect Individual Rights
Gostin, Lawrence O., Issues in Science and Technology
Public health law is experiencing a renaissance. Once fashionable during the Industrial and Progressive eras, the ideals of population health began to wither in the late 20th century. In their place came a sharpened focus on personal and economic freedom. Political attention shifted from population health to individual health and from public health programs to private medicine.
Signs of revitalization of the field of public health law can be seen in diverse national and global contexts. The Centers for Disease Control and Prevention (CDC) created a center of excellence in public health law--the Center for Law & the Public's Health (www.publichealthlaw.net)--and other nations have followed suit. In the aftermath of September 11 and the anthrax attacks, the CDC requested the drafting of the Model State Emergency Health Powers Act, now adopted in whole or in part by 37 states. A consortium of state and federal partners then drafted the "Turning Point" Model Public Health Act, which outlines a modern mission, core functions, and essential services for public health agencies. At the global level, the World Health Organization (WHO) is revising the International Health Regulations and preparing a WHO Model Public Health Act to Advance the Millennium Development Goals.
Why are these diverse international, governmental, and non-governmental organizations paying such close attention to public health law? The reason is that law is essential to achieving the goals of population health. Law creates public health agencies, designates their mission and core functions, appropriates their funds, grants their power, and limits their actions to protect a sphere of freedom. Public health statutes establish boards of health, authorize the collection of information, and enable monitoring and regulation of dangerous activities. The most important social debates about public health take place in legal forums--legislatures, courts, and administrative agencies--and in the law's language of rights, duties, and justice. It is no exaggeration to say that the field of public health is grounded in statutes and regulations found at every level of government.
Law can be empowering, providing innovative solutions to the most implacable health problems. Of the 10 great public health achievements of the 20th century, most were realized, at least in part, through law reform or litigation: vaccinations, safer workplaces, safer and healthier foods, motor vehicle safety, control of infectious diseases, tobacco control, and fluoridation of drinking water. Only three (family planning, healthier mothers and babies, and reduced deaths from coronary heart disease and stroke) did not involve law reform.
Law, therefore, can be a powerful agent for change in society, and policymakers need to be familiar with all the legal tools at their disposal. However, the law also places limits on what public policy can do, and policymakers must be prepared to wrestle with difficult legal, social, and ethical concerns that will arise in conjunction with potential public health initiatives.
What is public health law?
I have defined public health law as the study of the legal powers and duties of the state to promote the conditions for people to be healthy and the limitations on the power of the state to constrain the autonomy, privacy, liberty, or proprietary or other legally protected interests of individuals for the protection or promotion of community health. To understand the role of law in public health, it is useful to begin with a description of the legal basis for government authority (the police power) and the limits on that authority.
The "police power" is the most famous expression of the natural authority of government to regulate for the public good. Although police power evokes images of an organized civil force for maintaining public order, the word "police" has its linguistic roots in the close association between government and civilization: politia (the state), polis (city), and politeia (citizenship). …