It is hard to overstate the law’s importance to public health. Because law is one of the key mechanisms though which we order economic and social interactions, nearly every major advance in public health has been the result—at least in part—of changes in law.
Consider, for example, vaccinations. It was groundbreaking science that enabled the development of vaccines that can prevent a host of communicable diseases. However, it was the legal mandates (now in place in all 50 states) requiring vaccination as a condition of attendance in public and private schools that facilitated their near-universal uptake. Other legal interventions at the federal, state, and local level were then put to place to ensure that vaccines remain available and safe and that low-income families have access to free or reduced-cost vaccines. When new outbreaks of vaccine-preventable diseases occur (including outbreaks of previously well-contained diseases, like measles), states ideally revisit and update their laws as needed.1
Similar stories detailing the productive (and often complex) merger of public health science and law can be told about tobacco control, motor vehicle safety, occupational health, the decline in foodborne illnesses, and many other public health issues.2 As the vaccination example illustrates, law typically does not provide a complete one-time fix for public health challenges; rather, attention must be paid to a law’s impact, and laws much be updated, amended, or rescinded as conditions and social norms change.
As the practice of public health changes, public health law necessarily evolves alongside it. Public health departments in the United States were set up and organized with the mission of containing the infectious diseases that were at one time the leading causes of death. Today, with noncommunicable diseases and injuries as the leading causes of death and disability, new types of legal interventions are needed. In addition, because there are well-funded industries fueling many of today’s greatest public health challenges (e.g., the tobacco, alcohol, sugar, and firearms industries), efforts to expand the reach of public health regulation is being increasingly countered by aggressive legal and political pushback. Thus, being able to build public and political support for effective public health action is increasingly a required skill set for public health professionals.
This chapter focuses on public health law in the United States. It surveys the legal authority of the various levels of government to pursue policies that promote health, the main constitutional protections relevant to public health, and the role of administrative agencies. It then discusses the practice of public health law, exploring key public health law skills, intersectoral collaboration, and the challenge posed by industries that may seek to block effective public health policies.
PUBLIC HEALTH LAW POWERS AND GOVERNMENT STRUCTURE
In the U.S. legal system, power is divided vertically (between the federal, state, and local levels of government) and horizontally (between the legislative, executive, and ...