The Law and the Public's Health: A Study of Infectious Disease Law in the United States

70 Pages Posted: 17 Nov 1998 Last revised: 3 Sep 2008

See all articles by Lawrence O. Gostin

Lawrence O. Gostin

Georgetown University - Law Center - O'Neill Institute for National and Global Health Law

Scott Burris

Center for Public Health Law Research, Temple University - James E. Beasley School of Law

Zita Lazzarini

University of Connecticut Health Center

Abstract

Law plays essential roles in public health. Law defines health officials' jurisdiction, and specifies how they exercise their authority. It is a tool of public health work used to establish norms for healthy behavior. Policymakers use the law's language of rights, duties and justice in the most important social debates about public health taking place in legislatures, courts and administrative agencies. This article examines the subject and definition of public health, reviews the core functions of public health as they relate to law, identifies challenges confronting communicable disease control, surveys the current landscape of state communicable disease control law, and proposes guidelines for reform of state law to satisfy both legal and public health critiques.

The subject of public health. At a minimum the goal of public health is to attain the highest level and widest distribution of physical and mental health that a society reasonably can achieve within the limits of resources available. To effectively combat complex disease threats, the public health approach to disease control must evolve from the microbial, to the behavioral, to the ecological approach.

Core functions of public health and the law. Building on the Institute of Medicine's important 1988 study The Future of Public Health, the article identifies the core public health functions necessarily covered by law as: 1) health promotion and disease prevention, 2) assessment, data collection and analysis; 3) provision of medical services; and 4) leadership and policy development.

Challenges facing communicable disease control. Health officials must overcome substantial challenges to meet the needs of the public for protection from communicable diseases. These include structural issues such as their limited jurisdiction, popular apathy about public health goals, disease-associated stigma and social hostility that may interfere with effective public health work, and the public's distrust of government health officials. Public health officials must also contend with a crumbling pubic health infrastructure, emergence and re-emergence of old and new disease threats, and changes in the health care environment including managed care and shifting of some disease prevention and surveillance activities from the public to the private sector.

Survey of current public health law. Public health law in the United States is ripe for reform. Existing laws often represent multiple layers of provisions from the late 19th and early 20th centuries enacted in response to epidemics of communicable disease. Older statutes do not reflect modern understandings of disease transmission and do not conform to current constitutional or statutory requirements. Proliferation of disease-specific statutes create redundancies in the law that both foster confusion and expend valuable resources. Laws, both old and new, may harbor ambiguities that interfere with public health officials' ability to identify, prevent, and respond to threats to the public's health. State provisions may have weak privacy protection for some types of public health data.

Guidelines for reforming public health law. Public health law should: 1) define a broad mission of public health authorities to prevent and control communicable diseases through interventions at the microbial, behavioral and ecological level; 2) be based on uniform provision that apply equally to all communicable diseases, eliminating whenever possible disease-specific statutes; 3) recognize voluntary cooperation as the primary way to obtain compliance with public health measures; 4) base use of compulsory powers on a demonstrated threat of significant risk; 5) provide procedural due process protections; 6) provide a range of options for public health officers including a graded series of alternatives and require use of the least restrictive alternative that will accomplish the public health goal; 7) provide strong privacy protections based on fair information practices, limited disclosure of data, and monitoring of health department practices and substantive justification for data collection.

Suggested Citation

Gostin, Lawrence O. and Burris, Scott C. and Lazzarini, Zita, The Law and the Public's Health: A Study of Infectious Disease Law in the United States. Columbia Law Review, January 1999. Available at SSRN: https://ssrn.com/abstract=139923

Lawrence O. Gostin (Contact Author)

Georgetown University - Law Center - O'Neill Institute for National and Global Health Law ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9038 (Phone)
202-662-9055 (Fax)

Scott C. Burris

Center for Public Health Law Research, Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-6576 (Phone)
215-204-1185 (Fax)

HOME PAGE: http://www.phlr.org

Zita Lazzarini

University of Connecticut Health Center ( email )

263 Farmington Avenue
Farmington, CT 06030
United States
860-679-5495 (Phone)
860-679-5464 (Fax)

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