Lawrence O. Gostin’s seminal Public Health Law is widely acclaimed as the definitive statement on public health law at the turn of the twenty-first century. In this bold third edition, Gostin is joined by Lindsay F. Wiley to analyze major health threats of our time such as chronic diseases, emerging infectious diseases, antimicrobial resistance, bioterrorism, natural disasters, opiod overdose, and gun violence. The authors draw on constitutional law, administrative law, local government law, and tort law to develop their conception of law as a tool for protecting the public’s health.
The book creates an intellectual framework for modern public health law and supports that framework with illustrations of the scientific, political, and ethical issues involved. In proposing innovative solutions for the future of the public’s health, Gostin and Wiley’s essential study provides a blueprint for public and political debates to come.
New issues covered in this edition:
• Corporate personhood rights raised in response to regulations of tobacco, food and beverages, alcohol, firearms, prescription drugs, and marijuana.
• Local government authority to protect the public’s health.
• Deregulation and harm reduction as modes of public health law intervention.
• Taxation, spending, and alteration of the socioeconomic environment as modes of public health law intervention.
• Access to health care as a strategy for protecting the public’s health.
• Taxation, spending, licensing, zoning, and shared-use strategies for chronic disease prevention.
• The public health law perspective on violence and injury prevention.
• Health justice as a framework for reducing health disparities and protecting the public’s health.
List of Illustrations
List of Tables
List of Boxes
Foreword by Daniel M. Fox, Samuel L. Milbank, and Carmen Hooker Odom
Preface to the Second Edition
PART ONE: Conceptual Foundations of Public Health Law
1. A Theory and Definition of Public Health Law
Public Health Law: A Definition and Core Values
Public Health Statutes: Legal Foundations of Public Health Agencies
Law as a Tool for the Public’s Health: Models of Legal Intervention
The Legitimate Scope of Public Health and the Law
2. Public Health Regulation: A Systematic Evaluation
General Justifications for Public Health Regulation
Step 1: Is the Risk Significant? Risk Assessments
Step 2: Is the Regulation Effective? The “Means/Ends” Test
Step 3: Is the Regulation Cost-Effective?
Step 4: Is the Regulation the Least Restrictive Alternative? Personal Burdens
Step 5: Is the Regulation Fair? Just Distribution of Benefits, Burdens, and Costs
“Transparency”: A Principle of Good Public Health Governance
The “Precautionary Principle”: Acting under Conditions of Scientific Uncertainty
PART TWO: Law and the Public’s Health
3. Public Health Law in the Constitutional Design: Public Health Powers and Duties
Constitutional Functions and Their Application to Public Health
The Negative Constitution: The Absence of Government’s Duty to Protect Health and Safety
State and Local Power to Ensure the Conditions for the Public’s Health: Salus Populi Est Suprema Lex
Federal Power to Safeguard the Public’s Health
New Federalism and the Public’s Health
4. Constitutional Limits on the Exercise of Public Health Powers: Safeguarding Individual Rights and Freedoms
Public Health and the Bill of Rights: The Incorporation Doctrine
Jacobson v. Massachusetts: Police Power and Civil Liberties in Tension
The Enduring Meaning of Jacobson
Public Health Powers in the Modern Constitutional Era
5. Public Health Governance: Direct Regulation for the Public’s Health and Safety
A Brief History of Public Health Regulation
Public Health Agencies and the Rise of the Administrative State
Administrative Law: Powers and Limits of Executive Agencies
New Governance: Theory and Practice
6. Tort Law and the Public’s Health: Indirect Regulation
Major Theories of Tort Liability
Scientific Conundrums in Mass Tort Litigation: Epidemiology in the Courtroom
The Public Health Value of Tort Litigation
“The Tobacco Wars”: A Case Study
Tort Litigation to Prevent Firearm Injuries: A Case Study
The Limitations of Tort Law: Social and Economic Costs
7. Global Health Law: Health in a Global Community
Globalization and the Spread of Infectious Disease, Man-Made and Controllable
The Epidemiologic Transition from Infectious to Noncommunicable Diseases: A Double Burden in Resource-Poor Countries
International Health Regulations: A Historic Development in Global Governance
Framework Convention on Tobacco Control: Global Strategies to Reduce Smoking
World Trade and World Health
Human Rights: Advancing Dignity, Justice, and Security in Health
PART THREE: Public Health and Civil Liberties in Conflict
8. Surveillance and Public Health Research: Personal Privacy and the “Right to Know”
Public Health Surveillance
Mandatory Reporting of Diseases and Other Health Conditions
Physician and Community Resistance to Notification Laws: Case Studies on HIV and Diabetes Surveillance
Partner Notification: Contact Tracing, Duty to Warn, and Right to Know
Public Health Research
Privacy, Confidentiality, and Security: Defining Concepts
Health Information Privacy: Ethical Underpinnings
Health Information Privacy: Legal Status
Toward a Model Public Health Information Privacy Law
9. Health, Communication, and Behavior: Freedom of Expression
Two Antithetical Theories of Health Communication
Government Speech: Public Health Communications
When Government Speaks: A Constitutional Perspective
Compelled Commercial Speech: Health and Safety Disclosure Requirements
Food Marketing to Children: A Case Study
10. Medical Countermeasures for Epidemic Disease: Bodily Integrity
Compulsory Vaccination: Immunizing the Population against Disease
Testing and Screening
A Case Study on HIV Screening: Public Health and Civil Liberties in Conflict?
Compulsory Physical Examination and Medical Treatment
11. Public Health Strategies for Epidemic Disease: Association, Travel, and Liberty
A Brief History of the Ancient Power of Quarantine
Isolation and Quarantine: Law, Ethics, and Public Policy
Community Containment Strategies
Pandemic Influenza: A Case Study on Medical Countermeasures and Public Health Interventions
12. Economic Liberty and the Pursuit of Public Health
The Regulatory Tools of Public Health Agencies
Economic Liberty: Contracts, Property Uses, and “Takings”
The Normative Value of Economic Liberty
PART FOUR: The Future of the Public’s Health
13. Concluding Reflections on the Field
Public Health, Politics, and Money
Leadership and Jurisdiction
Legitimacy and Trust
Powers and Limits in Public Health: A Case Study on Obesity and Chronic Disease
The Future of Public Health Law
Table of Cases
About the Author
Lawrence O. Gostin is University Professor, the Founding O’Neill Chair in Global Health Law, and Director of the O’Neill Institute for National and Global Health Law and the World Health Organization Collaborating Center on Public Health Law and Human Rights at Georgetown University, and Professor of Public Health at Johns Hopkins University
Lindsay F. Wiley is Associate Professor at American University’s Washington College of Law. She serves on the Board of Directors of the American Society for Law, Medicine, and Ethics and on the National Conference of Lawyers and Scientists.
Thomas R. Frieden is the Director of the U.S. Centers for Disease Control and Prevention and Acting Administrator of the Agency for Toxic Substances and Disease Registry.
“Public Health Law: Power, Duty, Restraint does not disappoint. It presents not only a comprehensive overview of public health law but also a compelling case for why it is more vital than ever in our modern world.”—Margaret Hamburg, former U.S. Commissioner of Food and Drugs
“No one has done more than Lawrence Gostin to map the conceptual and practical issues that must be engaged to translate a vision of public health into workable principles and strategies. Since its first edition, Public Health Law has brought defining clarity and insight to the field. In this third edition, Gostin and Wiley together add to the texture, context, and guidance for securing the legal foundation of policies that will enhance our health futures.”—J. Michael McGinnis, MD, MPP, and Senior Scholar at the Institute of Medicine of the National Academies