Teaching Public Health Law 

Lawrence O. Gostin with Lesley Stone

Teaching public health law is like teaching politics, legal reasoning, constitutional law, administrative law, torts, and public health at the same time. It gives the professor the opportunity to explore all of these areas while discussing pressing issues that provoke visceral reactions in students—from SARS and avian influenza to bioterrorism and from smoking to obesity. Public health law centers on some of the most interesting and controversial topics of the day. Allowing students to explore these familiar themes in the structure of a classroom broadens their understanding of both law and the choices our society makes in determining the public's health. Whether it is taught as a separate course (as it is at Georgetown University Law Center) or as a section of a health law class, students are connected to the curriculum to a greater extent than many of the other subjects in law school.

Exploring the Tradeoffs

Studying public health law allows for the students to explore the various tradeoffs inherent in designing and implementing health policy. Students must consider the role of the government in protecting the public's health. Accepting that the goal of government is to protect the common weal, students are faced with the tension between funding for public health and funding for other governmental interests: defense, healthcare, transportation, education, housing, agriculture, etc. In the context of governmental resources, a population's level of health can be seen as a political question.

In addition to the tradeoffs between health and other public goods from an economic perspective, there are tradeoffs between health and traditional core American values such as free speech, autonomy, freedom of movement, and personal liberty. For example, in a public health emergency, would we as a society accept having a quarantine imposed? On the one hand, quarantine and isolation are some of the oldest methods for controlling infectious disease. They can be effective in preventing the further spread of illness. On the other hand, quarantine and isolation are severe restrictions on personal freedoms, have been used in the past to persecute minorities, and are not always effective. Students consider the government's role in balancing the needs of the group with the needs of the individual. Can we compel vaccination? This question implicates autonomy generally as well as religious freedom. Should a parent be able to protect his or her child from being vaccinated given that there are risks to the individual child? Or, is the risk to the public too great when individuals choose not to be vaccinated? Vaccines are not 100% effective, so even vaccinated individuals are at greater risk when there is a large population of unvaccinated individuals in the area. Exploring these tradeoffs and the ways in which we as a society make them are integral to a deep understanding of the ways in which law is based on cultural values and norms.

Links to other Subjects

In addition to stimulating thinking about cultural values and their role in the formulation of law, the study of public health law allows for the exploration of material learned in other classes. Constitutional law, administrative law, and tort law are all fundamental aspects of public health law.

Many areas of constitutional law can be examined through public health. Understanding constitutional federalism is central to understanding the public health powers of the state and federal governments. Generally, the power to protect the public's health is reserved to the states under the Tenth Amendment. However, the power of Congress under the Constitution allows extensive federal regulation for the public's health. Taxing, spending, and the regulation of interstate commerce are all relevant to public health law.

In addition to concepts of federalism, the constitutional limits on governmental power (to protect individual liberties) produce many cases in public health law. The constant quest of students of public health law is to determine the point at which government authority to promote public health should yield to individual rights claims. How much freedom should individuals forgo to achieve safety and a higher quality of life for the community? Public health powers including testing, vaccination, physical examination, treatment, isolation, and quarantine all involve the restriction of individual liberties. Economic rights are also affected by public health measures such as licensing health care providers, inspecting food establishments, pollution control, and nuisance abatement. In many cases, the courts uphold the power of the government to take steps to advance population health. Compulsory vaccination has long been upheld, as have drug testing, the closing of public bath houses, and the regulation of gun manufacture and sale. Yet, there are clearly limits to the government's power, even when forwarding a goal as important as public health. Governmental restrictions on advertising dangerous products has been overturned as a violation of the freedom of speech, housing and building code inspections may require search warrants, and fair procedures are required for restricting liberty in the cases of quarantine or civil commitment of the mentally ill. Public health law allows the tenets of constitutional law to be reinforced through the examination of different cases and materials than generally appear in most constitutional law classes.

As public health agencies are part of the executive branch of government, public health law is also a chance to explore the principles of administrative law. Public health agencies wield considerable authority to make rules to control private behavior, interpret statutes and regulations, and adjudicate disputes about whether an individual or company has conformed with health and safety standards. In a similar vein, federal administrative agencies such as the Environmental Protection Agency and the Occupational Safety and Health Administration (OSHA) promulgate rules that clearly impact the public's health. Modern administrative agencies exercise legislative power to issue rules that carry heavy penalties, executive power to investigate potential violations of health standards and to prosecute offenders, and judicial power to interpret law and adjudicate disputes over violations of governing standards. Agency powers have developed because of agency expertise as well as for reasons of politics (agency "specialists" are presumed to act according to disinterested scientific judgments). Because public health is intertwined with administrative law, it affords students the opportunity to be exposed to this area if they have not taken a class in administrative law, or for their knowledge to be strengthened if they have already studied the topic.

In addition to constitutional law and administrative law, public health law allows for the exploration of tort law as an instrument of indirect regulation. The creation of private rights of action in the courts can be an effective means of regulating for public health. Civil litigation has been used to redress many different kinds of public health harms, including air pollution, exposure to toxic substances, unsafe medicines or medical devices, hazardous products, and defective consumer products.

Public health law allows for a review of theories of liability. Negligence, private nuisance, and strict liability have all been used in the context of public health. Professors can use public health-oriented cases to explore the effects of tort litigation on changing the behavior of manufacturers and compensating victims. Firearm litigation gives a concrete example of the use of theories such as design defect and failure to warn as well as common defenses including assumption of risk and common use.

In addition to theories of liability, torts in the public health context also brings up questions of scientific proof and uncertainty, as well as the role of expert witnesses. Students must grapple with questions of the allocation of blame in areas where there is uncertainty, and science cannot accurately predict outcomes. In addition, the problems inherent in scientific proof and causality are interesting to most students. The tobacco litigation supplies a window into this dilemma. At what point can juries find that lung cancer or other diseases were likely a result of cigarette smoking and not other sources of carcinogens? The role of science in the courts generally is something that students are eager to explore. When should scientific testimony be allowed into a trial? Does the Federal Rule of Evidence governing the admission of evidence strike the right balance, or leave juries to the vagaries of junk science? Can judges, many of whom have not had extensive scientific training, be effective gatekeepers? Exploring these questions through public health law allows students to be exposed to rules of evidence in a discrete context, as well as to consider the value of tort law in protecting the public's health.

Conclusion

Public health law offers a rich field for examining social values as well as reinforcing principles of law learned in other classes. In addition, students have experience with many issues in public health law, but have not had the chance to consider the trade offs and goals behind the policies in detail. Public health law allows students to explore some of the most important and fascinating contemporary problems such as emerging infectious diseases and bioterrorism, chronic diseases (e.g., smoking and obesity), and injuries. Incorporating the latest controversies serves to keep the class fresh and exciting for the professor as well.

For more information on teaching public health law, including draft syllabi, please visit the Center's website at www.publichealthlaw.net. For those wanting to begin teaching public health law, please contact the authors.