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Public Health Law

Public Health Law: Power, Duty, Restraint, Revised and Expanded Second Edition

Lawrence O. Gostin
Copyright Date: 2008
Edition: 2
Pages: 800
Stable URL: http://www.jstor.org/stable/10.1525/j.ctt1pp3nn
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    Public Health Law
    Book Description:

    Public Health Law,first published in 2000, has been widely acclaimed as the definitive statement on public health law at the start of the twenty-first century. Lawrence O. Gostin's definition was based on the notion that government bears a responsibility for advancing the health and well-being of the general population, and the book developed a rich understanding of the government's powers and duties while showing law to be an effective tool in the realization of a healthier and safer population. In this second edition, Gostin analyzes the major health threats of our times, from emerging infectious diseases and bioterrorism to chronic diseases caused by obesity.

    eISBN: 978-0-520-93438-2
    Subjects: Health Sciences
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Table of Contents

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  1. Front Matter (pp. i-iv)
  2. Table of Contents (pp. v-x)
  3. List of Illustrations (pp. xi-xiv)
  4. List of Tables (pp. xv-xvi)
  5. List of Boxes (pp. xvii-xviii)
  6. Foreword (pp. xix-xx)
    Daniel M. Fox, Carmen Hooker Odom and Samuel L. Milbank

    The Milbank Memorial Fund is an endowed operating foundation that works to improve health by helping decision makers in the public and private sectors acquire and use the best available evidence to inform policy for health care and population health. The Fund has engaged in nonpartisan analysis, research, and communication about significant issues in health policy since its inception in 1905.

    Public Health Law: Power, Duty, Restraintwas the third of what are now nineteen California/Milbank Books on Health and the Public. The publishing partnership between the Fund and the University of California Press encourages the synthesis and communication of...

  7. Preface to the Second Edition (pp. xxi-xxviii)
  8. Acknowledgments (pp. xxix-xxxii)
    Lawrence O. Gostin
  9. PART ONE Conceptual Foundations of Public Health Law
    • CHAPTER 1 A Theory and Definition of Public Health Law (pp. 3-41)

      The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught (in schools of law, medicine, public health, and health administration), practiced (by “health lawyers”), and analyzed (by scholars in the related fields of health law, bioethics, and health policy).¹ The fields that characterize these branches of study are called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant...

    • CHAPTER 2 Public Health Regulation: A Systematic Evaluation (pp. 43-74)

      Public health regulation entails potential trade-offs between public goods and private interests. When public health officials act, they face troubling conflicts between the collective benefits of population health on the one hand, and personal and business interests on the other. Public health regulation is designed to monitor health threats and intervene to reduce risk or ameliorate harm within the population. At the same time, public health powers encroach on fundamental civil liberties such as privacy, bodily integrity, and freedom of movement, association, or religion. Sanitary regulations similarly intrude on basic economic liberties such as freedom of contract, pursuit of professional...

  10. PART TWO Law and the Public’s Health
    • CHAPTER 3 Public Health Law in the Constitutional Design: Public Health Powers and Duties (pp. 77-111)

      No inquiry is more important to public health law than understanding the role of government in the constitutional design. If, as I argue in chapter 1, public health law principally addresses government’s assurance of the conditions for the population’s health, then what activities must government undertake? The question is complex, requiring an assessment of duty (what government must do), authority (what government is empowered but not obligated to do), and limits (what government is prohibited from doing). In addition, this query raises a corollary question: Which government is to act? Some of the most divisive disputes in public health take...

    • CHAPTER 4 Constitutional Limits on the Exercise of Public Health Powers: Safeguarding Individual Rights and Freedoms (pp. 113-145)

      Regulation of persons and businesses historically has been a staple of public health practice.¹ Public health officials, in response to epidemics, exercise powers to test, vaccinate, physically examine, treat, isolate, and quarantine. Government agencies license health care providers, inspect food establishments, approve pharmaceuticals, monitor occupational health and safety, control pollutants, and abate nuisances. Public health regulation may not be the preferred strategy for ameliorating health threats; education and incentives often are more effective. Nevertheless, the legal basis of regulatory power and the trade-offs between personal freedom and the common good are core concerns of public health law.

      The last chapter...

    • CHAPTER 5 Public Health Governance: Direct Regulation for the Public’s Health and Safety (pp. 147-179)

      Constitutional law and democratic theory support the basic power or obligation of organized society (principally through government) to protect and preserve the health and safety of populations. Governmental health activities form part of the fabric and experience of public health. Over the history of public health, the line between public and private action has never been hard and fast. Moreover, private, charitable, and religious influences have been manifest.¹ Still, from the colonial and framing eras to the Progressive Era and New Deal—and continuing in modern times—government in all its various forms has assumed responsibility for the public’s health....

    • CHAPTER 6 Tort Law and the Public’s Health: Indirect Regulation (pp. 181-227)

      Thus far, I have considered regulation principally in terms of the actions taken by legislatures and administrative agencies to prevent injury or disease and to promote the public’s health. The creation of private rights of action in the courts can also be an effective means of public health regulation.¹ This chapter concerns an important form of civil litigation: the role of tort law in redressing harms to people and the environment they inhabit.²

      A tort, derived from the Latintorquere,“to twist,” is a civil, non-contractual wrong for which an injured person or group of persons seeks a remedy, usually...

    • CHAPTER 7 Global Health Law: Health in a Global Community (pp. 229-284)

      The examination of public health law has thus far focused on constitutions, statutes, regulations, and common law at the national and subnational level, particularly in the United States. However, the determinants of health (e.g., pathogens, air, food, water, even lifestyle choices) do not originate solely within national borders. Health threats inexorably spread to neighboring countries, regions, and even continents. People’s lives are profoundly affected by commerce, politics, science, and technology from all over the world. Global integration and interdependence occur “as capital, traded goods, persons, concepts, images, ideas, and values diffuse across state boundaries.”¹ It is for this reason that...

  11. PART THREE Public Health and Civil Liberties in Conflict
    • CHAPTER 8 Surveillance and Public Health Research: Personal Privacy and the “Right to Know” (pp. 287-331)

      One of the core functions of the public health system is to gather health information and deploy those data for the welfare of the community.¹ Information concerning risk factors for—and patterns, trends, and causes of—injury and disease forms the basis for rational public health decision making. Health information is indispensable for virtually all public health activities, including identifying, monitoring, and forecasting health threats; prevention, response, and intervention; program evaluation; and population-based research. It is for this reason that biostatistics and epidemiology are the foundational sciences of public health. Together, they supply the empirical evidence upon which public health...

    • CHAPTER 9 Health, Communication, and Behavior: Freedom of Expression (pp. 333-369)

      The field of public health is deeply concerned with the communication of ideas. Human behavior is a powerful contributor to injury and disease, so public health strives to influence behavioral choices. Many factors influence behavior, but information is a prerequisite for change.¹ The population must at least be aware of the health consequences of risk behaviors to make informed decisions. The citizenry is bombarded with behavioral messages that affect its health—by the media and entertainment, trade associations and corporations, religious and civic organizations, and family and peers.² Public health officials strive to be heard above the din of conflicting...

    • CHAPTER 10 Medical Countermeasures for Epidemic Disease: Bodily Integrity (pp. 371-419)

      This chapter and the next are devoted to epidemics of infectious disease caused by bacteria, viruses, protozoa, fungi, or prions that can replicate in humans.¹ Microbial threats of public health significance cause serious or lethal human disease. Pathogens can be transmitted in many ways, including from person to person, from animals or insects to people, and from food or water to people. Microbial threats may occur naturally or be introduced intentionally through bioterrorism or biological warfare. Many of the same public health strategies used for epidemic disease are relevant for preventing or containing other hazards (e.g., release of chemicals, toxins,...

    • CHAPTER 11 Public Health Strategies for Epidemic Disease: Association, Travel, and Liberty (pp. 421-459)

      The previous chapter examined vaccination, screening, and treatment, and their effects on bodily integrity. Considerable resources are devoted to developing therapeutic countermeasures, which undoubtedly can be highly successful. Yet medical interventions may fail to impede the epidemic spread of disease: Vaccines may be unavailable or ineffective against a novel infection, pharmaceuticals can become resistant, and medical supplies may be extremely scarce, particularly in a public health emergency. This chapter explores traditional public health strategies, which raise vital social, political, and constitutional questions because they interfere with the most basic human rights—association, travel, and liberty. But nonpharmaceutical interventions may be...

    • CHAPTER 12 Economic Liberty and the Pursuit of Public Health (pp. 461-488)

      I have discussed a series of conflicts between public interests in health and well-being and private interests in freedom from governmental interference. Thus far, the private interests examined involve personal freedoms: autonomy, privacy, bodily integrity, and liberty. A great deal of the history and regulatory content of public health, however, involves private economic interests: freedom to enter legally binding agreements, own and use property, and engage in businesses and professions without undue government interference.

      Commercial regulation creates a tension between individual and collective goods. In a well-regulated society, public health officials set clear, enforceable rules to protect the health and...

  12. PART FOUR The Future of the Public’s Health
    • CHAPTER 13 Concluding Reflections on the Field (pp. 491-514)

      Public health typically is regarded as a positivistic pursuit, and undoubtedly, our understanding of the etiology and response to disease is heavily influenced by scientific inquiry. Nonetheless, this book has been devoted to the core idea that law is essential for creating the conditions for people to lead healthier and safer lives. Law creates a mission for public health agencies, assigns their functions, and specifies the manner in which they may exercise their authority. The law is a tool in public health work, used to influence norms for healthy behavior, identify and respond to health threats, and set and enforce...

  13. Notes (pp. 515-720)
  14. Selected Bibliography (pp. 721-740)
  15. Table of Cases (pp. 741-756)
  16. Index (pp. 757-767)
  17. About the Author (pp. 768-768)