(Reprinted from: The Law Teacher)
By Edward P. Richards
Last spring semester, I taught a new course entitled The Constitution and the Public's Health. This essay reports what I learned in doing this, and what I hope students can learn from a public health law course.
Public health is the specialty of taking care of all the little things that make modern civilization possible: food sanitation, the control of rats and vermin, communicable diseases, nuisances, dogs, dangerous buildings, general environmental problems, and about everything else that can make you sick, fall on your head, or otherwise interfere with the health and safety of the community. Public health initiatives were responsible for nearly tripling the life expectancy in the U.S. between 1850 and 1990.
Prior to the emergence of AIDS/HIV in 1981, few law professors were interested in public health. It was seen as an intellectual backwater, limited to bad dogs, septic tanks, and other unromantic topics. While every state and big city health department had a lawyer who did public health law, this lawyer usually worked for the city legal department or the state attorney general's office. Public health law was the bottom rung on the career ladder in these departments. The most junior person would do public health law until the next new hire came on board. Pre-AIDS, there was little institutional expertise in public health law in either law schools or state and local agencies.
When AIDS came along, it caught the imagination of constitutional and civil rights lawyers in law schools and in public interest law practice. Persons who knew nothing about disease control or general public health were suddenly seen as public health law experts because they were working on the only "sexy" public health topic. Public health was a civil rights issue, and the interests of the individual were put before those of society. The result was questionable policy on AIDS/HIV, and the belief among most law students and lawyers that some court somewhere had struck down all the laws that gave public health agencies the right to protect the public health.
I am a pre-AIDS public health person. I was working with public health issues as an undergraduate in biology and environmental engineering, long before I thought of becoming a lawyer. Before I finished law school, I was already doing public health law: my wife had become the director of one of the largest sexually transmitted disease clinic systems in the country and I was her de facto counsel. By the time she left public health practice some 15 years later, I had worked on most of the problems that arise in public health. I also had the opportunity to be a special advisor to the Colorado Department of Health on the drafting and passage of the first comprehensive state HIV control bill. In the process, I began to see how little most persons, including lawyers, legislators, and physicians, actually know about public health.
A telling example was that the members of the Colorado legislative committee reviewing the HIV control bill did not know that health departments require the reporting of approximately 50 communicable and occupational diseases: If your kid gets the measles, your physician must report this to the health department. The same with syphilis, tuberculosis, meningitis, and a long list of other diseases. This allows the department to investigate the spread of the disease and take measures to control it.
Not knowing that disease reporting was a core health department function, many of the legislators were opposed to reporting, believing that it was intended to harass gay men. Once they understood that the bill treated HIV the same as other communicable diseases, while strengthening the privacy protections on all public health records, they passed the bill with only minimal amendments.
These experiences convinced me of two things: whether you are teaching public health law to lawyers, doctors, or even law students, you must teach them first what public health is and how it is practiced, and you should use a disease such as tuberculosis to explain disease control, only discussing AIDS/HIV after the background information has been presented.
The idea for teaching this course came from Terry O'Brien, an assistant attorney general for Minnesota. Terry is one of the few attorneys who has made a career in public health and is one of the most knowledgeable public health attorneys.
Terry was invited to be a visiting professor at the University of Minnesota School of Law, to teach a one-semester course in public health law. He called me to brainstorm on how to structure a course for law students, since there is no useful public health law text for law school use. We decided that the objective in teaching public health law should not be to make students into public health attorneys, but to make them better citizen participants in the critical debates over public health resources and decision making. We also realized that the students would come into the course with preconceived notions about public health that would be informed only by the issues surrounding AIDS/HIV. We would have to get their attention in such a way as to make them see public health as more than just AIDS law.
We designed a course that started with articles from the Journal of Emerging Infectious Diseases introducing the problem of fighting new epidemics. Terry then discussed a frightening outbreak of meningitis that had been written up extensively in the Minnesota papers. This was especially effective because he had been involved with investigating the epidemic and could provide the sort of detail that gives a story life.
The strategy worked. The students were so engrossed in the story of the outbreak and the horror that it spread throughout the community - one that was not that far from the law school - that they were able to put aside their preconceived notions about public health law. The course then lead them through the constitutional law cases on the police powers and articles on balancing community and individual rights. It concluded with a discussion of AIDS and other unresolved issues. (I have put the syllabus on my WWW site: Public Health Law Syllabus .)
For my course, I wanted to expand on the idea of teaching the students enough public health practice that they really understand what the law must accomplish. I use this approach in my torts and products liability classes, explaining the underlying engineering or medicine or other technical area in detail, then asking the students to figure out how the accident happened and how to prevent it, in some cases by designing labels or writing instructions.
I began with a reading of the first chapter of the Hot Zone, by Richard Preston. It is very powerful. (I censor some of the more graphic parts because law students tend to have weak stomachs.) Next, I told the story of Ebola, which rivets the students' attention on the social and medical impact of a serious disease outbreak. The students then read most of an introductory text on public health practice and administration that was written for Masters of Public Health students, as well as part of the Public Health Law Manual by Frank Grad, a book on public health practice. I supplemented these with key constitutional law cases on the police power. The students were also required to find out how the health departments were organized in surrounding communities.
The class was a success, although not everything worked. The readings in the public health text were too foreign for the students to follow without extensive explanation in class. They loved the police power cases, especially the more modern ones such as Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973), since these are generally ignored in constitutional law. It was useful for them to talk to people at the various health departments and see what they do. The students' lack of detailed public health knowledge, plus the limited time available to investigate the agencies, made it difficult for them to evaluate how effectively the departments were providing public health services.
By the end of the course, I was impressed with how much more sophisticated the students had become in evaluating public health policy. They began to see that protecting individual privacy sometimes comes at the cost of societal safety. More fundamentally, they began to understand how the political process drives all public health policy decision making. They saw how much more difficult it is for a local government agency to resist political manipulation than it is for the large and powerful federal agencies that law students usually study.
Public health law is a useful vehicle for introducing law students to several areas that are absent from most law school curriculums: 1) the difference between a local government agency and a federal agency; 2) the broad scope of the police powers; and 3) the legal dilemmas posed by innocent persons who pose a threat to the public health and whose freedom must be restricted. Public health law requires the professor to spend quite a lot of class time teaching non-legal materials. The reward is that you can change the way students see a very important area of law.
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