Introduction to Public Health Law

1. Introduction to Public Health Law New Health Officer Orientation Madison, Wisconsin November 14, 2013

2. The Network for Public Health Law Contact the Network to: • Get practical legal assistance on a variety of public health topics • Find helpful resources from webinars and trainings to fact sheets and legal briefs • Connect with a community of experts and users of public health law Support is available at no cost!Visit www.networkforphl.org for more information. Introduction to Public Health Law November 14, 2013

3. Objectives Introduction to Public Health Law November 14, 2013 • Describe role of law in protecting public health • Explain the sources of the government’s legal authority to protect public health • Identify constitutional principles that limit government power • Apply legal thinking to emerging public health challenges • Recognize when legal advice or assistance may be required

4. What is Public Health Law? Introduction to Public Health Law November 14, 2013 The study of the legal authority of the government to assure the conditions for people to be healthy and limitations on the government’s power to constrain autonomy, privacy, liberty, property or other legally protected interests of individuals for protection or promotion of public health. Power. Duty. Restraint. Lawrence Gostin, Public Health Law: Power, Duty, Restraint. Berkeley: Univ. of California Press, 2008

5. Two Key Concepts Introduction to Public Health Law November 14, 2013

6. Federal-State-Local Relationship • Most public health activities occur at state and local levels • Federal government assists states and provides lead role in controlling diseases related to interstate/international movement Introduction to Public Health Law November 14, 2013

7. Jacobson v. MassachusettsU.S. Supreme Court, 197 U.S. 11 (1905) • 1902 Smallpox Outbreak (MA) • Statute compelled vaccination of residents not recently vaccinated • Jacobson refused to comply with vaccination order and was fined • Supreme Court: Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. Introduction to Public Health Law November 14, 2013

8. Jacobson v. MassachusettsKey Holdings and Implications • Beginning of application of modern constitutional analysis to disease control law • Key holdings for states: • Use of police powers to protect public health • Delegation of authority to health agencies and other government subdivisions • Effective public health interventions may limit individual liberty • Provides constitutional support for spectrum of contemporary public health laws Introduction to Public Health Law November 14, 2013

9. Sources of Law Introduction to Public Health Law November 14, 2013 • Constitution • Statutes • Regulations • Ordinances • Court opinions (case law) • Executive Orders • International agreements and treaties • Contracts, Memorandums of Understanding or Agreement

10. Principles in the U.S. Constitution Introduction to Public Health Law November 14, 2013 • Federalism • Separation of Powers • Limiting the government’s power

11. Federalism Introduction to Public Health Law November 14, 2013 • Powers that are not granted to the federal government, and that are not prohibited to the states, are reserved to the states and to the people • In general, the “police power” is reserved to the states • Police power refers to the power to regulate health, safety, and welfare for the common good

12. Police Power • Reserved to the states by the Tenth Amendment • Broad power to protect the public’s health • “The department has power to execute what is reasonable and necessary for the prevention and suppression of disease.” • Sec. 250.04(1), Wisconsin Statutes Introduction to Public Health Law November 14, 2013

13. Police Power (Public Health) Surveillance, reporting and investigation Isolation, quarantine and social distancing Vaccination and treatment Evacuation Property management/control Introduction to Public Health Law November 14, 2013

14. Separation of Powers Introduction to Public Health Law November 14, 2013 • The Constitution creates branches of government, so that absolute power does not reside in any one branch of government • Executive • U.S. Department of Health and Human Services • North Dakota Department of Health • Legislative • Judicial

15. Limits on Government Power Introduction to Public Health Law November 14, 2013 • First Amendment • Freedom of speech, religion, and right to peacefully assemble • Second Amendment • Right to bear arms • Fourth Amendment • Fifth Amendment • Due process of law; just compensation for condemnations • Fourteenth Amendment • Equal protection and due process of law

16. Powers and Duties • Must Act within the scope of your employment • Ultra Vires Introduction to Public Health Law November 14, 2013

17. Preemption • Local government may be barred from acting if the state or federal government has “occupied the field.” • May be explicit or implicit • Does the state law set a ceiling or a floor? • Contexts include tobacco control, obesity prevention, pesticide and fertilizer use Introduction to Public Health Law November 14, 2013

18. Tools of Public Health Law Introduction to Public Health Law November 14, 2013 • Power to tax and spend • Power to alter the informational environment • Power to alter the built environment • Power to alter the socioeconomic environment • Direct regulation • Indirect regulation through the tort system • Deregulation: laws as a barrier to public health Based on Larry Gostin, Public Health Law: Power, Duty, Restraint.

19. Hot Topic: Vaccinations Introduction to Public Health Law November 14, 2013

20. Hot Topic: Obesity Prevention Introduction to Public Health Law November 14, 2013

21. Hot Topic: Health Care Reform Introduction to Public Health Law November 14, 2013

22. Working with an Attorney Introduction to Public Health Law November 14, 2013 • Recognize that reviewing existing laws and updating them as needed is a PH function. • See Domain 6 of PHAB accreditation standards • Develop a relationship with your attorney • Seek legal input early • Understand attorney’s risk management goals • Explain your public health/program/policy goals • The Network is an additional resource for information, brainstorming, and strategizing

23. Anticipating & Recognizing Legal Issues • Is there a reasonable chance that the public’s health is or may be threatened? • Is your ability and authority to address the situation unclear? • Is there a possibility that the event or circumstance could expose the health department to liability, media attention or political pressure? • Would the cost of a court case outweigh the cost of consulting an attorney? Introduction to Public Health Law November 14, 2013

24. Framing Legal Questions • Some hospitals have cases presenting with the H1N1 virus: • May I mandate that all health care workers get vaccinated? • I’d like to require mandatory vaccinations for staff in high risk areas like hospital and schools. How feasible will this be given my authority under the law and prior legal rulings? Introduction to Public Health Law November 14, 2013

25. National Scope with Local Expertise • Provide support across the country • Divided into 5 Regions to provide local and state support • Contact your Region for assistance Introduction to Public Health Law November 14, 2013

26. Public Health Topics Working with experts around the country, the Network provides support on a variety of topics: • Cross-border public health • Emergency legal preparedness and response • Environmental public health • Food safety • Health reform • Health information data sharing • Injury prevention and safety • Obesity prevention • Public health agency accreditation and shared service delivery • Public health statutes and regulatory information • Tobacco control • Tribal public health law • And other topics Introduction to Public Health Law November 14, 2013

27. Benefits of Joining • Get the latest information on public health law • Connect with others in the Network • Share your public health law knowledge and experiences • Get help developing, implementing and enforcing public health laws • Access legal assistance and resources Introduction to Public Health Law November 14, 2013

28. Access Helpful Resources • Network products, such as fact sheets, tables of state laws, legal briefs and more • Monthly webinar series • Public health lawyer directory • Library of legal assistance questions and answers • External resources • Network newsletters • Events Introduction to Public Health Law November 14, 2013

29. Additional Resources Introduction to Public Health Law November 14, 2013 The Network Report, www.networkforphl.org (free e-newsletter for people who join the Network) Practical Law for Public Health Officials, http://www.nwcphp.org/training/phl-training-database/practical-law-for-public-health-officials Introduction to Wisconsin Public Health Authorities Fact Sheet on Wisconsin Public Health Authorities www.networkforphl.org What Works Wisconsin (Effective Prevention Programs for Children, Youth and Families) . http://whatworksforhealth.wisc.edu/ Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint.

30. Contact Me Introduction to Public Health Law November 14, 2013 Jill Krueger The Network for Public Health Law St. Paul, Minnesota 651-695-7624 jkrueger@networkforphl.org