Carl Hacker and Katherine Wingfield University of Texas School of Public Health

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1 Carl Hacker and Katherine Wingfield University of Texas School of Public Health

2 Case Study Imagine that a major city in the United States is suddenly overtaken by an outbreak of smallpox. Assume that the Board of Health for this city votes, pursuant to a state statute, to require the vaccination of all residents in the city who have not previously been vaccinated. One citizen an honest and upstanding member of the community vehemently refuses to be vaccinated. He is brought to trial, and he argues persuasively that he sees vaccination, particularly smallpox vaccination, as a means of contaminating his body with filth and disease.

3 Case Study Despite the best evidence produced by this citizen and his attorney, the court finds the man guilty and fines him a substantial amount of money for refusing to submit to vaccination. The case is appealed, but the verdict is upheld by both the State s Supreme Judicial Court and, ultimately, the Supreme Court of the United States. The year is More than 100 years later, this will still be good law.

4 Historical Perspectives Jacobson v. Massachusetts, 197 U.S. 11 (1905) The Supreme Court notes that a community has a right, based on the principle of self-defense, to protect itself against an epidemic of disease which threatens the safety of its members. The Supreme Court upholds the right of the city to mandate vaccination against smallpox, declaring that states may limit individual liberty in the service of wellestablished public health interventions.

5 Protecting the Public s Health versus The Practice of Medicine In the practice of medicine, when an individual seeks treatment from a physician and the physician agrees to treat the person, a patient-physician relationship is established. By contrast, those who practice public health are concerned with the health of a community. Their patient is the community.

6 Kinds of Law and the Public s Health Common Law Statutory Law Constitutional Law Administrative Law Case Law Ordinances

7 Common Law Common law is a large and ill-defined collection of principles, traditions, and precedents. Questions of common law are settled by judges whose decisions are recorded for posterity. These recorded decisions form a precedent to be used in the future when similar issues come into litigation. Public Health Law Example: Your neighbor has piled old tires next to your property. This pile of tires could provide a place for rats and mosquitoes to breed. Thus this situation could unreasonably interfere with your use and enjoyment of your property. Common law has established that this unreasonable interference is grounds for ordering your neighbor to remove the tires or pay you damages.

8 Statutory Law Statutory law is law created by a sovereign body. Police power is the power of the state (namely, the governed ) to place restraints on the personal freedom and property rights of individuals to secure a common good. The police power of a state is exercised through the statutes passed by its legislature. Public Health Law Example: A state can exercise its police power through the licensing of professionals. For example, to protect the public s health, a state can ensure that only those qualified to practice medicine are allowed to do so. This can be done by establishing a Licensing Board (or a body with a related name). This Board is granted the authority by statute to define and review the requirements to practice medicine in the state and to disciple those persons who fail to uphold these qualifications.

9 Constitutional Law State Constitutions Each State has a constitution describing how laws are made in that State and the extent to which a legislature can act. Federal (U.S.) Constitution In addition to the individual State constitutions, every State is also bound by the laws in the federal Constitution. The U.S. Constitution specifies how laws are made by the federal government, what kinds of laws can be made, and the extent to which the Congress can impose the will of the majority on a minority. Public Health Law Example: Medicare is an example of a public health program that exists because of Congress s power to spend money to promote the general welfare. Congress raises money through taxes and then spends this money to fund programs that support the U.S. public.

10 Administrative Law When the U.S. Congress or a state s legislature passes a statute dealing with the public s health, the makers of the law have neither the intention nor the time to administer the law on a day-to-day basis. To ensure that the law is properly applied and enforced, the legislators may create an administrative agency. The procedures used by an agency are laid out in the Administrative Procedure Act, Congress defines what an agency can do to enable legislation, and Congress provides a budget to fund the work. Public Health Law Example: The U.S. Food and Drug Administration (FDA), the U.S. Environmental Protection Agency (EPA), the Centers for Disease Control and Prevention (CDC), and the Occupational Safety and Health Administration (OSHA) are all examples of agencies. Each of these agencies has been charged with a specific set of tasks, and each has a direct role in affecting the public s health.

11 Case Law Case law comes about in two ways: First, it may arise from a common lawsuit Second, case law can arise when a court is asked to interpret the words of a regulation, statute, or the U.S. Constitution. Public Health Law Example: In the case of Jacobson v. Massachusetts, the Supreme Court held that states may limit individual liberty in the service of wellestablished public health interventions (Jacobson v. Massachusetts, 197 U.S. 11 (1905)).

12 Ordinances States may choose to distribute their authority to smaller jurisdictions such as municipalities. States that follow this route are termed home rule states. The requirements and conditions for a city or county to become a home rule jurisdiction are typically laid out in the state s Constitution. Laws enacted by home rule jurisdictions are generally known as ordinances and must be heeded as any other law. Public Health Law Example: A city may pass an ordinance that prohibits smoking in all public places. This ordinance would outline what constitutes a public place and provide a penalty for violations. Such an ordinance would affect owners and operators of public places as well as citizens in this city.

13 Analysis of Case Study The case study that was presented at the beginning of this chapter is based on an actual Supreme Court case from The case of Jacobson v. Massachusetts arose after an outbreak of smallpox occurred in In response to the disease, the Cambridge Board of Health voted to require the vaccination of all residents who had not been vaccinated since March On March 15, 1902, Reverend Henning Jacobson refused to be vaccinated. Despite the objections of Reverend Jacobson, the U.S. Supreme Court upheld the right of the city of Cambridge, Massachusetts, to mandate vaccination against smallpox. The Court held that states may limit individual liberty in the service of wellestablished public health interventions.

14 Analysis of Case Study Over the years, other states have successfully relied on the Jacobson decision to support their own vaccination laws. Many of the cases have arisen as challenges to laws requiring children to be vaccinated before attending school, and the courts have uniformly upheld these laws. Today, however, most states have provisions in their statutes to accommodate objections for medical reasons or for reasons of conscience, including religious beliefs. The schools may then choose to exclude any unvaccinated children from attending school during an emergency or epidemic. In this way, the statutes that exist today are less stringent than the laws that existed at the time of the Jacobson ruling, but the power of the state to make laws to protect the public health has remained unchanged. States still have the authority under their police powers to make laws that will affect the health of the people in that state, and they may limit individual liberty in an effort to protect the public health.

15 Conclusion Public health as a profession exists only because of law. In turn, law is essential for prescribing the responsibilities and boundaries for those who would seek to affect public health. The federal government must make sure that it is acting under one of its enumerated powers, such as its power to spend money to provide for the general welfare. States, in contrast, must rely on their police powers to create laws that affect the health, safety, welfare, and morals of the citizens in the state. The enumerated powers of the federal government and the police powers of the state governments give these legislative bodies the ability to affect public health through law.

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