Reforming State Public Health Law*

By Lawrence O. Gostin, JD, LLD (Hon.) and James G. Hodge, Jr., JD, LLM

The law is an essential part of public health practice. Laws define the powers of public health officials and serve as a tool to establish norms for healthy behavior and help create the social conditions in which people can be healthy. In its 1988 foundational report, The Future of Public Health, the Institute of Medicine questioned the soundness of public health law. The report recommended that states review and revise their public health statutes to (1) clearly delineate the basic responsibilities of public health authorities, (2) implement modern disease control measures, and (3) incorporate due process safeguards. Despite these recommendations, public health law in most states remains ripe for reform.

Public Health Law Defined

Public health law may be defined as the study of the legal powers and duties of the state to assure the conditions for people to be healthy (e.g., to identify, prevent, and ameliorate risks to health in the population), and the limitations on the power of the state to constrain the autonomy, privacy, liberty, or other legally protected interests of individuals for protection or promotion of community health.1 Within this definition fall the many core functions of modern public health agencies including health promotion and prevention; assessment, data collection, and analysis; the provision of direct medical services; and policy development.

Challenges to Modern Public Health

There are many challenges to the core functions of modern public health practice. The public health infrastructure is decaying. Funding for essential public health functions, including surveillance, has been in chronic decline. The emergence of HIV/AIDS, the re-emergence of multidrug-resistant tuberculosis, and the identification of numerous other infectious diseases demonstrate that communicable diseases continue to threaten the health of people worldwide. A major restructuring of the health care environment is underway, driven by efforts to contain costs, devolution of authority to the states, and, to a lesser degree, concerns about access to care. Existing law does not effectively coordinate or monitor the public health services delivered by private providers or managed care plans.

In addition, a series of structural problems plague the public health system including2:

• The Problem of Apathy—Health threats, even those caused by serious communicable diseases, are often practically invisible. As a result, the public is apathetic to controlling such conditions even when unmistakably threatened.

• The Problem of Power—Public health agencies possess two kinds of powers: the power to regulate directly and the power to make policy. Yet neither power alone allows agencies to accomplish all that is needed to preserve public health.

• The Problem of Stigma and Social Hostility—Stigma associated with serious diseases and the social hostility that is often directed at those at risk of disease interfere with the effective operation of public health programs.

• The Problem of Legitimacy—Even where there is agreement about what should be done to promote public health, there exists deep disagreement about the government's role in setting a moral agenda. The legitimacy problem is seen in objections to governmental paternalism and endorsements. Many people feel that government is supposed to be neutral on questions of values.

• The Problem of Trust—Public health agencies depend on public confidence for fiscal and political support. This reliance challenges public health practice where political necessities may compromise the objectivity of epidemiologic and statistical information.

Survey of State Communicable Disease Laws

To assess the current status of communicable disease law, we [and others] surveyed public health statutes concerning communicable disease control in fifty states and two territories.3 Survey analysis revealed generally that many states' disease control law are outdated, outmoded, arbitrary, insufficient, and occasionally irrelevant. More specifically, we observed that:

• These laws often do not reflect contemporary scientific understanding of disease, current treatments of choice, or constitutional limits on states' authority to restrict individual liberties.

• Laws enacted in response to specific diseases over time may take inconsistent legal or medical approaches to similar diseases.

• Classes of communicable disease law, including laws relating to traditional sexually-transmitted diseases, pressing diseases (such as tuberculosis and HIV), and "communicable" diseases generally, result in considerable variation in the enforcement powers conferred upon health authorities for given conditions.

• Despite the recognized importance of privacy protections in public health practice, the current legal protection of public health information privacy is uneven across states [and sometimes within them].

• Existing statutes often provide vague standards concerning the exercise of coercive public health action.

• Most laws may lack procedural due process protections to ensure that health officials make fair and impartial decisions when exercising compulsory powers.

Guidelines for Reforming Public Health Law

Based on the prior recommendations of the Institute of Medicine, the current challenges to public health, and our findings from the survey of state communicable disease laws, we propose several guidelines for reform of public health law. Although these recommendations are based primarily on a review of communicable disease laws, they equate to virtually all areas of public health law.

• States should define a broad mission of public health authorities to prevent and control communicable diseases—Mission statements in public health statutes establish and clarify the purposes, goals, and core functions of public health agencies; inform and influence the activities of government; and, perhaps ultimately, shape the expectations of society about the scope of public health.

• Public health law should be based on uniform provisions that apply equally to all communicable diseases—Public health interventions should be based on the degree of risk, the cost and efficacy of the response, and burdens on human rights. A single set of standards and procedures applicable to all communicable diseases would clarify legal responsibilities.

• Voluntary cooperation should be recognized as the primary way to obtain compliance with public health measures—Public health statutes should expressly grant public health officials the authority to employ a variety of voluntary measures to encourage healthful behavior including traditional prevention services (such as counseling and education); social marketing and public service advertisements; incentive systems (such as taxation policy); and benefits (such as child care, transportation allowance, food, and monetary incentives) to influence behavior choices.

•Base use of compulsory powers on a demonstrated threat of significant risk—Where voluntary measures fail, public health officials may exercise compulsory measures. Effective and constitutionally sound public health statutes should require adequate risk assessment and protect individual rights.

• Provide procedural due process protections— Public health statutes should set forth fair procedures in the exercise of compulsory health powers, including written notice of the behavior or conditions said to pose a risk, assistance of counsel, a full and impartial hearing, and right to an appeal. Public health officials should be required to prove the existence of a health threat by clear and convincing evidence.

• Provide a range of options for Public Health Officers—Where coercive measures must be taken, public health officials need a flexible set of tools. State public health statutes should equip health officials with a set of increasingly serious interventions to be deployed as conditions warrant.

• Provide strong protections for privacy and security of public health information with narrowly drawn exceptions for disclosure when necessary to protect the public—Public health laws should generally protect the privacy of personally-identifiable public health information; require that public health authorities clearly justify the collection of such information; allow individual access to data which relates to them; attach legally binding assurances of privacy and security to all personally identifiable public health information; and allow disclosure of such information only for purposes that are consistent with the original collection, absent informed consent.

These and other privacy and security protections are in the process of being drafted into model state public health privacy legislation (for more information on this project sponsored by the Centers for Disease Control and Prevention and the Council of State and Territorial Epidemiologists, please see our project Web site).

Law reform alone cannot guarantee better public health. Through reform, however, the law can become a catalyst, rather than an impediment, to reinvigorating the public health system. Public health law needs to articulate the scope, authority, and responsibility of public health agencies to enable them to perform their core functions and support the public health system in meeting its current challenges. Effective reform can ensure that public health law truly responds to the shifts in the public health environment, developments in the understanding and the mechanisms of disease, and modern standards of epidemiology and constitutional jurisprudence.

Lawrence O. Gostin is Professor of Law at Georgetown University Law Center, Professor of Law & Public Health, the Johns Hopkins School of Hygiene and Public Health, and Co-Director, the Georgetown/Johns Hopkins Program on Law and Public Health. James G. Hodge, Jr. is an Adjunct Professor of Law at Georgetown University Law Center and Greenwall Fellow in Health Policy and Bioethics at the Johns Hopkins University and Georgetown University.

Resources Cited in Article
*This article is based on a report written for the State of Alaska to support their work in conjunction with the Turning Point: Collaborating for a New Century in Public Health. A Public Health Law Resource Document is currently being prepared as part of the "Turning Point" initiative.
1. Lawrence Gostin, American Public Health Law (University of California Press, in press).
2. Lawrence Gostin, Scott Burris, Zita Lazzarini, The Law and the Public's Health: A Study of Infectious Disease Law in the United States, Columbia L. Rev. 1999;94:201-270.
3. Lawrence O. Gostin, Scott Burris, Zita Lazzarini & Kathleen Maguire, Improving State Law to Prevent and Treat Infectious Disease (Milbank Memorial Fund) (1998).