2. Public Health Law and Public Health
Policy
Public health law and public health policy are fundamental tools that assist
states in the task of protecting people from threats to health, preventing
disease, and striving for healthy populations. This paper examines their
respective and joint roles in influencing health outcomes. It considers
definitions and theories of ‘public health law’ and ‘public health policy’,
explores the relationship between law and policy, and provides examples
of public health law and policy as dual mechanisms for public health. The
limits and bounds of the law as a public health tool are also discussed
highlighting where policy may be more effective in achieving particular
aims. Supranational and international public health law and policy is also
considered, emphasizing the importance of laws and policies that
transcend national domains. The important roles of bodies beyond
government, including inter-governmental organizations, business, and
civil society, are noted, recognizing all may influence and effect law, policy,
and practice, and in turn, public health.
3. Public Health Law Reform
Public health law is scattered through many legislative statutes and
administrative documents which developed historically. Efforts to codify
public health law may contribute to greater understanding and
enforceability of the many separate pieces of legislation (Box 15.10). Such
reform will enhance understanding in the legislative, judicial, and
administrative branches of government as well as in business, non-
governmental organizations, and the community. Box 15.11 suggests
topics for model public health consolidation or compendia for states. The
principles of this formulation may also apply to other countries at the
national and state or provincial levels.
BOX 15.11Public Health Law Program of the Centers for Disease Control
and Prevention
4. Legal Issues in Public Health
Public health law theory enables a nuanced understanding of the role of
government in creating the conditions for people to be healthy, the
reasonable limits that governments may place on personal freedom to
promote the health of the population. It provides a framework in which to
understand the legal basis for the enactment and operation of public health
laws. Legal issues in public health, including those that drive litigation,
occur when misalignments between legislation, regulation, and policy
cause legislators or their delegates to misuse (either overstep or
underuse/neglect) their powers. We further discuss litigation in public and
private law contexts as a powerful tool to advance the interests of public
health advocates.
5. Problem of Inconsistency among
Political Subunits
Public health laws remain fragmented not only within specific jurisdictions, but among
them as well. Health codes in various regions have evolved independently, leading to
profound variation in the structure, substance, and procedures for detecting, controlling,
and preventing injury and disease. In fact, statutes and regulations can vary so
significantly in definition, method, age, and scope that they defy orderly categorization.
Ordinarily a different approach is not a problem and is often perceived as a virtue;
independent areas can become laboratories for innovative solutions to challenging
health problems. Nevertheless, there may be good reason for greater uniformity in
matters of public health. Health threats are rarely confined to single jurisdictions but
pose risks within whole regions or the nation itself. For example, geographic boundaries
are largely irrelevant to issues of air or water pollution, disposal of toxic waste, or the
spread of infectious diseases. Similarly, a bioterrorism event threatens the nation and is
not confined to a single location.
Public health law, therefore, should be reformed so that it conforms with modern
scientific and legal standards, is more consistent within and among states, and is more
uniform in its approach to different health threats. Rather than making artificial
distinctions among diseases, public health interventions should be based primarily on
the degree of risk, the cost and efficacy of the response, and the burdens on human
rights. A single set of standards and procedures would add needed clarity and
coherence to legal regulation, and would reduce the opportunity for politically motivated
disputes about how to classify newly emergent health threats.
