PUBLIC HEALTH LAW IN THE TIME OF AIDS:
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
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.
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
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
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).
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
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
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
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
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:
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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