Law of Public Health in the United States

by

Ross D. Silverman

• LAST REVIEWED: 25 November 2014
• LAST MODIFIED: 25 November 2014
• DOI: 10.1093/obo/9780199756797-0145

Introduction

Public health law is law that affects the health conditions of populations. In the United States, this contrasts with medical law or general health law, which focus more on the health-care delivery system and physician-patient relationships. Public health law is derived from an array of sources and systems, including the US and state constitutions; federal, state, local, and tribal laws; administrative agency regulations; international agreements and treaties; and litigation and common law or judge-made laws. Because of the constitutional structure of federalism in the United States, most American public health law has been developed at the local and state level under the broad police powers authority reserved to the states to protect the health, welfare, and safety of its citizens, and has been carried out by state and community public health government agencies. Like early public health, public health law began with a focus on issues related to nuisance abatement and infectious disease control, and as the scope and complexity of public health has expanded, so too has the field of public health law. Today, public health law encompasses injury control measures (including employment and motor vehicle safety, gun control, and violence prevention); laws governing epidemiological surveillance and public health research; laws addressing the prevention and ongoing effects of chronic illness, including tobacco control and obesity; litigation to impact public health problems; preparedness efforts for bioterrorism and pandemics; asserting and protecting the human right to health; international trade agreements and health regulations; and abating health disparities caused by the social determinants of health. Given their impact on health, the field of public health law arguably also includes fields commonly known as environmental law and food safety law; however, the maturity and breadth of these topical areas warrant their own discrete coverage elsewhere. While state public health authority is broad, the field has had to adjust as modern society has encouraged greater emphasis on individual liberty and human rights. Public health law scholarship includes philosophical and jurisprudential analysis, and a new field of public health law research focuses on the use of social science analytical tools to measure the effects of law on health.

Textbooks

Those interested in public health law, whether they are general readers, law or public health students or faculty, or practitioners in the field, can find a text offering a general overview written for their discipline. Many of these texts offer a sound overview of the field, and then proceed through most of the area’s major themes. However, while their foundations remain solid, these books must be viewed as representing a point-in-time examination of a field undergoing rapid growth and evolution, and those portions aiming to cover specific topics or laws within the field are therefore, to greater or lesser degrees, dated. Gostin 2008 and Gostin 2010 represent the most widely adopted texts in courses for law and for public health students, and the two texts are often used together, with the former offering the author’s clearest articulation of his philosophical framework, and the latter serving as a primary source compendium. Wing and Gilbert 2007 is aimed at students outside law schools, offering them more in-depth insight into sources of law and general civics before tackling public health and health-care topics. By contrast, Grad 2005, the third edition of a venerable book written by the man who drafted the New York City Health Code, is meant to serve as a handbook for frontline lawyers and public health practitioners. The essays in Goodman 2007 were coauthored by public health lawyers and practitioners, making the text useful in a class, or as a bookshelf resource for practitioners. Other texts offer particular lenses onto the field. Tobin Tyler, et al. 2011 comprehensively examines poverty law and policy and its connection to health, including medical-legal partnerships, through which legal services may be delivered to alleviate social determinants of health. Parmet 2009, in contrast, is more philosophical than encyclopedic. Finally, Wagenaar and Burris 2013 is an important, specialized text introducing the burgeoning field of public health law research, which involves the use of social science research techniques to evaluate the effects of law on the public’s health.

• Goodman, Richard A., ed. 2007. Law in public health practice. 2d ed. New York: Oxford Univ. Press.

  DOI: 10.1093/acprof:oso/9780195301489.001.0001

  Excellent compendium of essays written for an interdisciplinary audience by leading public health law scholars and practitioners. Includes an invaluable chapter on using an ethical framework in public health decision-making, as well as topic-specific chapters.

• Gostin, Lawrence O. 2008. Public health law: Power, duty, restraint. 2d ed. Berkeley: Univ. California Press.

  The most widely used public health law classroom text on the American market, for good reason: sweeping in scope, consistent in philosophy, useful in either law or public health school settings, with outstanding summative charts, historic plates, bibliographies and timelines. Approaching the need for an updated edition.

• Gostin, Lawrence O., ed. Public health law and ethics: A reader. Rev. 2d ed. Berkeley: Univ. of California Press, 2010.

  Anthology of seminal (albeit edited) treatises and decisions on public health law and ethics, with insightful framing passages by editor. A popular and useful primary or supplementary text for public health, law, and ethics students.

• Grad, Frank P. 2005. The public health law manual. 3d ed. Baltimore: American Public Health Association.

  The classic text for public health officers, health professionals, and legal counsel seeking a sound understanding of public health laws and powers, especially as applied at the state and local level, although it is in need of updating.

• Parmet, Wendy E. 2009. Populations, public health, and the law. Washington, DC: Georgetown Univ. Press.

  Well-written philosophical treatise on public health law, largely from a constitutional law perspective.

• Tobin Tyler, Elizabeth, Ellen Lawton, Kathleen Conroy, Megan Sandel, and Barry Zuckerman, eds. 2011. Poverty, health and law: Readings and cases for medical-legal partnership. Durham, NC: Carolina Academic Press.

  Exciting, comprehensive new text on law and the social determinants of health. In-depth treatment of a range of specific areas of law and policy as they affect vulnerable populations. Would serve well both as a poverty and vulnerable population law and policy classroom text, and in the field for those developing and working in medical-legal partnership clinics.

• Wagenaar, Alexander C., and Scott Burris, eds. 2013. Public health law research: Theory and methods. San Francisco: Jossey-Bass.

  The text is aimed at those with social science research and health science backgrounds interested in researching law, as opposed to an introduction to social science research techniques for lawyers or students.

• Wing, Kenneth R., and Benjamin Gilbert. 2007. The law and the public’s health. 7th ed. Chicago: Health Admin. Press.

  Written primarily for non-law audiences in health care and public health as an introduction to legal structures and powers, and to help facilitate discussion between providers and their legal counsel. Notable for its outstanding introduction to the law and the legal system. Topic-specific areas covered are increasingly out of date, however, due to the text no longer being updated.