Lawrence O. Gostin,
Lawrence O. Gostin, Scott Burris, Zita Lazzarini, the Law and the Public's Health: a Study of
Infectious Disease Law in The United States, 99 Columbia Law Review 59-118, 78-88 (January,
1999) (271 Footnotes)
Public health--as a social reform movement, as a professional discipline, and as a fixture of public
administration--has continuously adapted itself to new health threats, new methods of health
promotion and disease control, and changing expectations of government. Every health agency is
a creature of its past experience, "which goes far to determine how it shall set about its new
Nineteenth-century sanitarians focused on providing clean water, adequate sewers, pure food,
safe workplaces, and hygienic dwellings to the urban poor who were at greatest risk for the most
common communicable diseases.
Toward this end, boards of health were created and given
increasingly broad powers to investigate and abate nuisances endangering health, and an
administrative and legal infrastructure was built of food safety laws, building codes, social welfare
programs, and water bureaus. But as early as the turn of this century, the escalating success of
biomedical science was changing public health,
moving its center away from a broad social,
environmental focus to a more individualized, medical one based on germ theory.
like Surgeon General Thomas Parran pushed for the legal authority to deploy modern
"epidemiological methods" of disease control,
in which pathogens were to be identified through
individual testing or population screening and reporting, and then eliminated through vaccination,
treatment, isolation, or quarantine.
With good diagnostic tools and surveillance, disease
outbreaks could be spotted early. With quick and effective treatments, patients could be rendered
noninfectious with little disruption to their lives or society's business. The pathogen, not social
conditions, was thought to be the problem, and throughmodern methods like these, the pathogen
could be defeated. Health authorities sought the power to test suspected carriers, screen
populations (such as marriage license applicants and newborns), trace partners, and require
treatment. The social vision and reform agenda that had focused sanitary reformers on slums and
sewer lines was replaced with a concern for biomedical research, vaccination, and timely medical
treatment. n the early- to mid-twentieth century, the heyday of the microbial model of
disease, that communicable disease law assumed the form in which it largely exists to this day.
Health departments are influenced by this history, even as they try to adapt to changes in social
conditions and threats to health. Health departments today are generally organized to serve four
"core functions": health promotion and disease prevention; assessment, data collection, and data
analysis; medical services; and leadership and policy development. t canvasses the core
functions, and highlights how law supports them.
A. Health Promotion and Disease Prevention
The main job of health agencies is to directly promote good health and prevent illness. To this
end, modern public health practice deploys measures based on all three of the major models of
disease causation. Health departments continue to employ traditional measures aimed at finding
and controlling pathogens (e.g., testing, screening, reporting, contact tracing, vaccination,
compulsory treatment, and isolation). Health departments also oversee the purity of water
supplies and the hygienic conditions of food service establishments. ides both
jurisdiction over the problem and the authority to require compliance. the form of
privacy rules and due process requirements, also helps assure that measures involving the control
of individuals are, and are perceived to be, rational, fair, and as harmless to the individual as
possible. #160; Health departments also devote significant resources to changing behavior in the population. As
chronic, nonmicrobial diseases such as cancer and heart disease came to dominate the mortality
tables, public health focused its attention on risk-enhancing behavior such as smoking,
diets, and inactivity. Significant behavioral sources of traumatic injury and death, such as teen
violence and drunken driving, have also been treated as public health problems.
behavior has, of course, become crucial in controlling communicable diseases like HIV, as well.
ctor screening (for cholesterol or high blood pressure, for example), individualized
counseling, and health education are standard tools of behavior change, but so is the law. Law is
used to reduce unsafe behavior by both direct (e.g., helmet laws for motorcyclists and drunk
driving laws) and indirect (e.g., taxes and subsidies) means, the goals of which are to make
healthier behavior less costly and unhealthy behavior more expensive. #160; Influenced by ecological thinking about disease, public health workers have recognized the
importance of addressing the social causes of unhealthy individual behavior. Individual choices
depend in substantial part on the options provided by society and on the behavioral cues with
which individual decisionmakers are bombarded in any social setting. They also depend upon
material conditions, like the distribution of wealth and government policies. Health workers now
routinely design interventions that attempt to address social factors such as stigma, discrimination,
and sexism. ealth officials have become advocates of policies, such as the elimination of
legal barriers to sterile hypodermic syringes and needles, that make it possible for individuals to
make healthier choices. ols of economics and marketing, public health authorities have
begun to develop programs to influence individual behavior choices by changing the prevailing
social norms. #160; Ecological strategies address environmental problems, land use, patterns of commerce, and
medical and commercial use of antimicrobials,
as well as social, political, and economic
conditions that influence population movement and changes in standards of living.
broad targets, health measures aimed at ecological causes of disease quickly bring health agencies
to the outer bounds of their statutory jurisdiction.
B. Assessment, Data Collection, and Data Analysis
Public health work depends upon accurate information about the state of health of the
population. A primary task of public health agencies is to collect and to analyze relevant health
data, including indicators of health status, vital statistics and demographics, and epidemiological
information that track communicable and noncommunicable diseases. Collected data must then
be assessed and analyzed to identify suspicious or unusual outbreaks of disease, to evaluate the
success of interventions, and to forecast public health and medical resource needs. Complete,
timely, and accurate data on health indicators are vital to monitoring progress toward stated
health objectives eploying the most effective possible interventions. Law provides the
authorization for data collection and creates the duty of various professionals and institutions to
provide information. However, the law's most important roles are to guarantee privacy and to
ensure the careful use of data, both of which are necessary to ensure that people with socially
risky conditions do not avoid the public health and health care systems. #160; 1. Collection of Vital Statistics.--All states authorize the collection of vital statistics.
Comprehensive collection of basic data such as births, deaths, and marriages helps quantify
resource needs and track demographic changes in the population. Where vital statistics include
racial and ethnic breakdowns, geographic locations, and causes of death or risk factors for ill
health, such as low birth weight, researchers and policymakers can use them for complex analyses
of health needs or risks. Timely publication of such statistics facilitates prompt local, state, and
2. Surveillance.--Surveillance may be defined as the systematic observation of a population to
identify the causes, prevalence, incidence, and health effects of injury or disease. Surveillance
activities include disease reporting, anonymous serological surveys, and other epidemiological
investigations. Traditionally, health departments have collected information on both
communicable ommunicable diseases.
Both passive surveillance (collection of data
reported by health care providers) and active surveillance (collection of data by personnel trained
and equipped to investigate disease outbreaks) are important. Under a more expansive view of
epidemiology and disease causation, health departments not only collect information on reported
cases of disease, but also survey samples of the population to measure the prevalence of identified
behavioral and environmental risk factors for ill health. Examples of this approach are the
Behavioral Risk Factor Surveillance System (BRFSS) and Youth Behavioral Risk Factor
Surveillance System (YBRFSS), which track a number of identified risk factors using telephone
surveys. and functioning system in the U.S. and abroad requires investment and
support of the basic public health infrastructure involved in surveillance, including health
departments, laboratories, investigative and laboratory personnel, data collection and analysis
capabilities, and the ability to disseminate the information.
Health agencies generally have ample authority to conduct surveillance. Limits tend to be
imposed sporadically--through funding restrictions--upon research that becomes controversial.
Recent examples include a national survey of sexual behavior and blinded studies of HIV
seroprevalence among newborns. In the former case, opponents argued that government-funded
prying into sexual behavior constituted a breach of privacy.
In the latter, paradoxically, critics
objected that blinded procedures designed to protect privacy prevented doctors and patients from
reaping useful medical information from the research process.
3. Public Health Laboratories.--An important aspect of data collection and analysis is the
operation and maintenance of public health laboratories. These facilities provide highly technical
testing and pathological services and set the standards for quality assurance in private labs. They
represent a vital part of the public health infrastructure,
contributing to effective policymaking
and helping to ensure basic medical and preventive services. Moreover, public health laboratories
are critical to the core functions of assessment and surveillance. Health departments depend on
public health laboratories for the information necessary to detect, prevent, and control
communicable diseases. Effective tuberculosis control, for instance, requires prompt
identification of active cases of tuberculosis,
analysis of drug susceptibility,
DNA analysis for tracking probable routes of infection in institutional or community settings.
portant assessment and surveillance activities of public health laboratories include
detection and documentation of food- and water- borne infections, surveillance of antimicrobial
resistance, environmental testing, toxicologic screening of individuals potentially exposed to
hazardous substances, and epidemiologic and evaluative research on health problems and program
effectiveness. ing and expanding the capacity of public health labs to analyze
surveillance information and identify pathogens is critical to preserving public health's ability to
combat known diseases and to identify and investigate emerging or reemerging diseases.
or threats to public health laboratories are political and take the complementary forms of
underfunding and privatizing governmental functions.
4. Program Evaluation.--Thorough and effective public health programs can be expensive.
scally constrained system, those responsible for public health programs must be able to
demonstrate that they are accomplishing their stated goals.
If a program actually increases early
detection of an environmental health risk or identification of a disabling disease, it may improve
the public health (and therefore be justifiable) even if it does not save money in the short term.
For this purpose, public health departments must be able to collect or receive from other agencies
a wide variety of data, including health status, disease outbreaks, morbidity and mortality rates,
environmental and behavioral risks, as well as the number of individuals served and the proportion
of populations reached by preventive health services. This sort of interagency data sharing and
cooperation could be built into the legal structure of state and local governments, as it is to some
degree at the federal level, but has rarely happened to date.
C. Medical Services
Traditionally, public health agencies have provided individual health care services in addition to
population-based disease prevention and health promotion activities. Public health clinics function
as a provider of last resort for some of those who lack health coverage, a portion of the American
population that seems destined to grow.
Although provision of individual medical services is
not the public health department's primary activity, it will remain an important aspect of public
health work as long as a segment of the population lacks other means of access to health care.
Ideally, health care would be provided through the health care system, and public health
departments would provide individual patient care only in cases where the special training,
expertise, and resources of public health workers were required to control health threats to the
population. There are, in fact, many such cases. For example, health departments can assist
private health care providers and institutions in a variety of ways. In the area of HIV (or STDs),
health departments can provide partner notification services for HIV- infected patients and
prevention services for high-risk, yet uninfected, patients.
Health departments can also provide
technical assistance and training for hospital staff in HIV counseling and testing.
clinics often provide vital care to individual patients, their goal is not so much the delivery of
individual treatment as it is the interruption of transmission of communicable and sexually
transmitted diseases. ld of limited health care access, health departments must struggle
to meet the needs of the un- and underinsured without losing sight of their distinct mission of
disease control. . Leadership and Policy Development
Effective public health policymaking does not exist in a vacuum, nor is it purely a scientific
pursuit. It is necessarily influenced not only by biomedical and social science, but also by fiscal
concerns, culture, and politics. It depends upon planning, collaboration with nonhealth entities,
building popular support, and the capacity to exercise political leadership.
Public health policy development requires prioritizing health problems, identifying solutions, and
determining who can best implement them. Ideally, public health policy should include long-range
planning that forecasts resource needs, maintains the public health infrastructure,
new health threats. long-range planning, health departments may find crises--such as
an environmental accident, a disease outbreak, or a new or perceived health risk--driving their
priority setting and policymaking.
From the leadership point of view, a planning process that
includes communities in identifying priorities andfashioning responses is an excellent way to
create political support for health programs, quite apart from its benefits in making better
programs in the first place.
Unfortunately, only a minority of states consistently engage in
community planning for public health,
and only a handful of health departments are required to
do so by law. #160; Since many of the determinants of health are outside the jurisdiction of health departments,
public health officials, in developing policy, must collaborate with other state departments and
public agencies (e.g., environmental protection, agriculture, highway safety, housing, welfare,
social services, and law enforcement agencies), community-based organizations (e.g.,
nongovernmental entities, activists, and persons with disease), the private sector (e.g., business
and labor), and academic institutions (e.g., schools of public health, nursing, dentistry, and
medicine). Public health agencies can often only accomplish their goals by instigating and
coordinating health- enhancing activities in these other spheres.
The IOM Report on the future of public health recognized that building public understanding of
and support for public health programs was an essential duty of any public health agency.
ately, the need for renewed support for public health efforts comes at a time when
prevailing political winds favor the private sector and carry a strong suspicion of anything in the
way of governmental "interference" with the Panglossian machine of the market.
Effective public health work requires leaders who can win battles in the halls of government.
Programs have to be approved by executives and funded by legislators in an environment of
scarcity and, often, political polarization. Effective public health leaders appreciate the process of
developing public health initiatives, including the legislative process, as an opportunity to define
important health issues and take the lead in solving them. Drafting legislation or regulations
provides a chance to gather and build relationships among important stakeholders, and any
interaction with legislators is an occasion to get their attention and educate them about public
health needs and methods.
The IOM has criticized health agencies for failing generally to exercise strong leadership in
health matters. some health department leaders are extremely astute politically and
have managed to establish their credibility in government and the community,
ir to say
there is a crisis in public health leadership in America.