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PUBLIC HEALTH LAW IN THE TIME OF AIDS: SYLLABUS 1997

Professor Scott Burris

Temple Law School
1719 N. Broad Street
Philadelphia, PA 19122

 The required materials are:

AIDS Law Today: A New Guide for the Public (Burris et al eds 1993) ["AIDS Law Today"]
Allen M. Brandt, No Magic Bullet ["Brandt"]
Xeroxed materials ["Course Pack"]

The following outline provides the topic, discussion questions and required reading for each of our fourteen meetings.

I & II. Introduction

What is public health?

What has the law got to do with it?

How can AIDS help us answer these questions?

Required reading: "Foundations of Public Health Law" (Course pack pp. 1-42); Larry Gostin, Traditional Public Health Strategies, in AIDS Law Today 59-82; begin reading Brandt.

III. History:

A. Science, Society and Law

B. The Emergence of "Traditional" Measures

As you read Brandt, note the legal measures that were an important part of the overall campaign against V.D. How were they received? What sorts of debates went on?

As you read Jacobson, pay attention to the underlying issue of the efficacy of vaccination. Does the Court take a position on this? How strongly does the opinion endorse the State's power to vaccinate under any and all circumstances? What do the exceptions say about the rule?

Required reading: Jacobson v. Massachusetts (Course Pack pp. 43-51); Brandt  

IV.

A. Communicable Disease in Social Context

1. The Social Construction of Disease and Health

2. Public Health as Politics

Required reading: Brandt; Dalton, "AIDS in Blackface"; Fee and Krieger, "Thinking and Rethinking AIDS: Implications for Health Policy" (Course Pack pp. 52-76).

In this class, we will consider how disease and health are defined -- how, that is, a culture gives significance to some phenomena and not to others, how people in a society learn to think about things that happen to them. And we will discuss the closely related issue of how ideas about ill-health -- what causes it, which threats are worse, why certain people are ill -- are translated into health policy and law.

 B. Public Health Today: Threats and Responses

1. What Are the Major Health Threats Today?

2. How Do We Make People Healthy?

i. The Role of Medicine in the Decline of Mortality Since 1700

ii. The Health of Individuals and the Health of Populations

Required reading: Pappas, et al., "The Increasing Disparity in Mortality Between Socioeconomic Groups in the United States, 1960 and 1986"; McGinnis & Foege, "Actual Causes of Death in the United States"; Link & Phelan, "Social Conditions as Fundamental Causes of Disease" (Course Pack pp. 82-110).

Think about:

What makes people get sick? What do people need to be healthy? Do people of different colors or classes get sick differently? Do any of your answers raise basic questions of social justice?

V. Public health: Government's Power and How It Is Used

Required reading: Pa Disease Control Law of 1955; New York v. New St. Marks Baths; New York Society of Surgeons v. Axelrod; Act-Up Triangle v. Cmmsn. for Health Services, 123 N.C. App. 256; Robins and Backstrom, "The Role of State Health Departments in Formulating Policy: A Survey on the Case of AIDS"; Centers for Disease Control and Prevention, "Estimated National Spending on Prevention - United States, 1988" (Course Pack pp. 111-141)

Where did "traditional" health powers come from? What is the vision of public health they embody? How do these powers relate to the health problems of today?

VI. The Public Health Response to AIDS

 Required reading: Gerald Friedland & Helena Brett-Smith, Transmission and Treatment, in AIDS Law Today 18-45; Scott Burris, Education to Reduce the Spread of HIV, in AIDS Law Today 82-114; Chandler Burr, "The AIDS Exception: Privacy v. Public Health"; Burris, "Public Health, 'AIDS Exceptionalism', and the Law (excerpt) (Course Pack pp. 142-163)

VII. The Limits of Coercion

Required reading: Turnock & Kelly, "Mandatory Premarital Testing for Human Immunodeficiency Virus: The Illinois Experience"; Gellert et al., "Managing the Non-Compliant HIV-Infected Individual: Experiences from a Local Health Department"; Bayer and Fairchild-Carrino, "AIDS and the Limits of Control: Public Health Orders, Quarantine, and Recalcitrant Behavior" (Course Pack pp. 164-180).

VIII. The Regulation of Social Meaning

Required reading: Lessig, The Regulation of Social Meaning (Course Pack pp 181-254)

IX. The Anti-Stigma Project: Discrimination

Required reading: Arthur Leonard, Discrimination, in AIDS Law Today 297-312 (excerpt); Troyen Brennan, Patients and Health Care Workers, in AIDS Law Today 377-403; Burris, Dental Discrimination Against the HIV-Infected (excerpts); School Board v. Arline; Chalk v. U.S. District Court; Abbott v. Bragdon; Boyle v. Gallagher; McNemar v. Disney; Carparts v. Automotive Wholesaler's Ass'n (Course Pack pp. 255-357). Also: Runnebaum v. NationsBank

 What's the connection, if any, between the "significant risk" standard of Arline and the "necessity" standard in cases like Jacobson?

How, if at all, does prohibiting discrimination against those with communicable diseases further the goals of public health? Take a look at what Brennan says about this in Arline. (Yes, the footnotes are very important.)

What evidence, if any, is there that discrimination law "works" as promised?

 X. The Antistigma Project: Privacy

Required reading: Scott Burris, Testing, Disclosure and the Right to Privacy, in AIDS Law Today 115-50; Belinda Ann Mason, A Seat on the Merry-Go-Round: A Consumer's View, in AIDS Law Today 54-56; Doe v. Borough of Barrington; Glover v. ENCOR; Doe v. Dyer-Goode; Stall, et al., Decision to Get HIV Tested... (Course Pack pp. 358-382).

XI. The Stigma Project

Required reading: Harlon L. Dalton, Criminal Law, in AIDS Law Today 242-62; Donald H.J. Hermann and Scott Burris, Torts, in AIDS Law Today 340-55 (excerpt); "Dornan Amendment"; Indiana v. Haines; Doe v. Johnson, 817 F.Supp. 1382; KAC v. Benson, 527 N.W.2d 553; Faya v. Almiraz, 620 A.2d 327(Course Pack pp. 383-445).

XII. Perennial problems in public health: Risk and the Agenda

Required reading: Frost, "Relative Risk in the News Media"; Doe v. District of Columbia; Scoles v. Mercy Health Corp.; Anonymous Fireman v. Willoughby; Schneiderman et al., "Fear of Dying and HIV Infection vs. Hepatitis B Infection"; Lowrance, "An Array of Considerations" from Of Acceptable Risk (Course Pack pp. 446-488)

XIII. Values and politics

Required Reading: O'Keefe, "Altering Public Policy on Needle Exchange: The Connecticut Experience"; People v. Bordowitz; Alfonso v. Fernandez (Course Pack pp. 489-508); Burris, et al., The Legal Strategies Used in Establishing Needle Exchange Programs in the United States (handout).

XIV. Putting It All Together: Public Health and State Power

The question all comes down to how to get masses of people to make changes in behavior, which raises big questions:

Whose behavior?
Who decides?
What is the nature of our obligation as citizens?
What can we demand in return for being safer?

Required Reading: Gostin et al., The Law and the Public's Health (draft); (Course Pack pp. 509-567).

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