No provision of the Patient Protection and Affordable Care Act (PPACA) has been more contentious than the so-called “individual mandate,” the constitutionality of which is now before several appellate courts. Critics claim that the mandate represents an unprecedented attempt by the federal government to compel individual action. Yet, states frequently employ similar mandates to protect the public's health. These public health mandates have also often aroused deep opposition. This essay situates PPACA's mandate, and the opposition to it, in that broader (...) context. The article reviews the arguments that public health's population perspective provides in support of mandates, as well as the reasons why mandates often ignite intense legal and political opposition. Most importantly, by holding individuals accountable for population-based problems, mandates may undercut the public health arguments that justify them. The article concludes by arguing that public health policymakers need to know more about the unintended political and legal costs of mandates. (shrink)

No provision of the Patient Protection and Affordable Care Act has proven to be more contentious than the so-called “individual mandate.” Starting in 2014, the mandate will impose a penalty on non-exempt individuals who lack health insurance. According to Congress, the mandate is essential to ensuring near universal coverage. Without it, PPACA’s insurance reforms will lead healthy individuals to delay purchasing health insurance until they require medical care, resulting in risk pools with a disproportionate share of high-risk people. The price (...) of insurance will then climb, causing more and more not-so-sick people to forego health insurance. The resulting “death spiral” will make insurance unaffordable to many more Americans. (shrink)

The practice of law has changed greatly since the days when judges based decisions on the maxim salus populi suprema lex, and Oliver Wendell Holmes disagreed, noting that “experience” has been the “life of the law.” In the intervening years, the profession has followed Holmes and the legal realists in recognizing that the law does not exist in a vacuum. It is a human endeavor, molded by experiences and filled with human consequences. Today, lawyers, jurists, and legal scholars everywhere on (...) the political spectrum recognize the importance of social context, history, and a variety of non-legal disciplines, and non-legal insights to the intelligent practice of the law Unfortunately, in rejecting the old maxims, the legal profession also lost sight of the fundamental truth of salus populi suprema lex, Latin for “the health of the people is the highest law” - namely, it has lost sight of the truth that a population’s health is a critical part of law’s social context. One of the consequences of this is that the profession has failed to include public health - the study of the causes and prevention of disease, disability, and death in populations - among the non-legal disciplines regularly incorporated into legal analysis and routinely taught to all would-be lawyers. It is time to correct this oversight. (shrink)

Northeastern University School of Law, 400 Huntington Avenue, Boston, MA 02115, USA. Tel.: 617 363 2019; Fax: 617 373 5056; Email: w.parmet{at}neu.edu ' + u + '@' + d + ' '//--> Abstract This paper looks at the American law of quarantine in light of the teachings of John Stuart Mill, whose harm principle has often been used to justify the practice of isolating and/or quarantining individuals to prevent the spread of an infectious disease. The paper shows that despite (...) important parallels between quarantine law and both the authorizing and prohibitive aspects of Mill's harm principle, the contemporary law of quarantine does not reflect either Mill's concern for the potential abuse of executive authority nor his recognition that quarantine is only ethically justified when the broader public health policy environment in which quarantine is applied is itself ethically sound. CiteULike Connotea Del.icio.us What's this? (shrink)

The practice of law has changed greatly since the days when judges based decisions on the maxim salus populi suprema lex, and Oliver Wendell Holmes disagreed, noting that “experience” has been the “life of the law.” In the intervening years, the profession has followed Holmes and the legal realists in recognizing that the law does not exist in a vacuum. It is a human endeavor, molded by experiences and filled with human consequences. Today, lawyers, jurists, and legal scholars everywhere on (...) the political spectrum recognize the importance of social context, history, and a variety of non-legal disciplines, and non-legal insights to the intelligent practice of the law Unfortunately, in rejecting the old maxims, the legal profession also lost sight of the fundamental truth of salus populi suprema lex, Latin for “the health of the people is the highest law” - namely, it has lost sight of the truth that a population’s health is a critical part of law’s social context. One of the consequences of this is that the profession has failed to include public health - the study of the causes and prevention of disease, disability, and death in populations - among the non-legal disciplines regularly incorporated into legal analysis and routinely taught to all would-be lawyers. It is time to correct this oversight. (shrink)

The most remarkable thing about the U.S. Supreme Court's 1998 decision in Bragdon v. Abbott was that it was necessary at all. Seventeen years into the epidemic of the acquired immunodeficiency syndrome, the Supreme Court, by a mere 5-4 majority, finally affirmed what most public health officials, health providers, and lawyers working with people with human immunodeficiency virus believed all along: that individuals with HIV infection are entitled to the protections of antidiscrimination law, and that health care providers must respond (...) to a patient's infection based on reason and science, not fear and prejudice. For individuals with HIV, and for those with other disabilities, the Court's ruling was a critical victory. But the very fact that the issues had to be decided by the Supreme Court and that only five justices joined the majority, shows the fragility of legal rights pertaining to HIV as well as the wide gulf between the perspectives of public health and those of public law. (shrink)

The most remarkable thing about the U.S. Supreme Court's 1998 decision in Bragdon v. Abbott was that it was necessary at all. Seventeen years into the epidemic of the acquired immunodeficiency syndrome, the Supreme Court, by a mere 5-4 majority, finally affirmed what most public health officials, health providers, and lawyers working with people with human immunodeficiency virus believed all along: that individuals with HIV infection are entitled to the protections of antidiscrimination law, and that health care providers must respond (...) to a patient's infection based on reason and science, not fear and prejudice. For individuals with HIV, and for those with other disabilities, the Court's ruling was a critical victory. But the very fact that the issues had to be decided by the Supreme Court and that only five justices joined the majority, shows the fragility of legal rights pertaining to HIV as well as the wide gulf between the perspectives of public health and those of public law. (shrink)

Although the right to health is universal, many nations that honor it fail to do so in the case of non-citizen immigrants. In this essay, we argue that the reasons typically given for not extending the right to health to immigrants are without merit and that there are good reasons for nations to protect, respect and fulfill the health right of all immigrants. Contrary to the standard view, we argue that health can be understood as a global public good. Two (...) important points follow: because health is non-excludable and non-rivalrous, it is in the health interests of nations to respect, protect and fulfill immigrants’ right to health. Furthermore, meeting the health needs of immigrants is an important way for receiving nations to meet the duties that may be generated by the benefits they incur as a result of health’s global public good dimension, thus ensuring that receiving nations are not free riders. We then argue that because citizens and immigrants dwell together, nations have duties of solidarity to immigrants with respect to health. Using the insights of social psychology, we show that solidarity among diverse people is both a reasonable expectation and a morally desirable one. (shrink)

In the fall of 2001, the need for a vigorous and effective public health system became more apparent than it had been for many decades. With the advent of the first widescale bioterrorist attack on the United States, the government's obligation to respond and take steps to protect the public health became self-evident.Also obvious was the need for of an effective partnership between federal, state, and local officials. Local officials are almost always on the front lines of the struggle against (...) bioterrorism. They are the first to recognize a suspicious case and to provide testing and treatment for the affected population. At the same time, state officials are needed to support and coordinate local efforts, providing an expertise that may be lacking in many communities, especially smaller ones.But few would doubt that the federal government has a key role to play. The Centers for Disease Control and Prevention is expected to lead the epidemiological investigation and provide expertise on how to cope with diseases that remain unfamiliar to most physicians. (shrink)

In the fall of 2001, the need for a vigorous and effective public health system became more apparent than it had been for many decades. With the advent of the first widescale bioterrorist attack on the United States, the government's obligation to respond and take steps to protect the public health became self-evident.Also obvious was the need for of an effective partnership between federal, state, and local officials. Local officials are almost always on the front lines of the struggle against (...) bioterrorism. They are the first to recognize a suspicious case and to provide testing and treatment for the affected population. At the same time, state officials are needed to support and coordinate local efforts, providing an expertise that may be lacking in many communities, especially smaller ones.But few would doubt that the federal government has a key role to play. The Centers for Disease Control and Prevention is expected to lead the epidemiological investigation and provide expertise on how to cope with diseases that remain unfamiliar to most physicians. (shrink)

Public health professionals recognize the critical role the law plays in determining the success of public health measures. Even before September 11, 2001, public health experience with tobacco use, HIV, industrial pollution and other potent threats to the health of the public demonstrated that laws can assist or thwart public health efforts. The new focus on infectious threats and bioterrorism, starting with the anthrax attacks through the mail and continuing with SARS, has highlighted the important role of law.For lawyers to (...) serve as effective partners in public health, they should have a basic familiarity with public health: how public health professionals see the world and the key issues they tackle. A practical grasp of public health can be acquired, and often is acquired, “on the job.”. (shrink)

Many observers have argued that the US health care system could be more efficient, and achieve better outcomes if providers focused more on improving the community's health, not just the welfare of individual patients. The passage of the Affordable Care Act in 2010 seemed to herald the promise of such reforms, and greater integration of the health care and public systems. In this article, we reassess the quest for integration, a quest we call the “integration project.” After examining the modest (...) steps taken so far toward integration, we consider some conceptual barriers to integration as well as some of the risks it might portend for the public health system. Our assessment contributes to wide-ranging debates among public health advocates, practitioners, and policymakers as to the health care system's role in protecting public health, and how the public health system can best be organized to meet expected population health challenges. (shrink)

The relationship between law and a population’s health is complex and poorly understood. To the extent that scholarship exists on the subject, it has usually focused on epidemics that are concentrated in relatively vulnerable, marginalized communities. Often, individual behaviors are assumed to play a major role in the epidemiology of these diseases. Perhaps, as a result, these illnesses become stigmatized and the object of coercive laws, which in turn become the subject of litigation, legal debate, and ultimately scholarly analysis. Thus, (...) to the extent that U.S. legal scholars have thought about public health in the last 30 years, they have generally done so in the context of tuberculosis, intravenous drug abuse, and a handful of similar conditions. Likewise, Jonathan Mann’s own appreciation of the importance of human rights to public health emerged in the wake of his work with HIV, which is perhaps the prototypical stigmatized disease. (shrink)

The relationship between law and a population’s health is complex and poorly understood. To the extent that scholarship exists on the subject, it has usually focused on epidemics that are concentrated in relatively vulnerable, marginalized communities. Often, individual behaviors are assumed to play a major role in the epidemiology of these diseases. Perhaps, as a result, these illnesses become stigmatized and the object of coercive laws, which in turn become the subject of litigation, legal debate, and ultimately scholarly analysis. Thus, (...) to the extent that U.S. legal scholars have thought about public health in the last 30 years, they have generally done so in the context of tuberculosis, intravenous drug abuse, and a handful of similar conditions. Likewise, Jonathan Mann’s own appreciation of the importance of human rights to public health emerged in the wake of his work with HIV, which is perhaps the prototypical stigmatized disease. (shrink)

Immigration poses numerous challenges for health professionals and public health lawyers. This article reviews these challenges. We begin by offering some background on immigration and health and then explain some of the reasons why immigrants are less likely than natives to have health insurance. Next we turn to a discussion of some of the particular challenges relating to the health care of refugees. We conclude by analyzing and rejecting some of the arguments that are made for discriminating against immigrants with (...) respect to the provision of public health benefits and services. (shrink)

This is a tale of two social structures, health care and education. Both systems are undeniably critical to our social fabric, and even to our national prosperity. Both systems also provide services that are uniquely personal and vital to individual well-being. And both systems are now widely perceived as being in “crisis,” as needing “fundamental reform.”At the same time, there are fundamental differences in the ways the two sectors are organized and understood. Health care is essentially a system of private (...) relationships; education a system of public responsibilities. Although each system is extraordinarily complex and contains elements that defy neat categorization, by highlighting the contrasting visions and structures of the two, one gleans useful insights both into the distinctive failings of each and into potential directions for reform. (shrink)

This article analyzes the Supreme Court’s “shadow docket” Free Exercise cases relating to COVID-19. The paper highlights the decline of deference, the impact of exemptions, and the implications of the new doctrine for vaccine and other public health laws.

Public health professionals recognize the critical role the law plays in determining the success of public health measures. Even before September 11, 2001, public health experience with tobacco use, HIV, industrial pollution and other potent threats to the health of the public demonstrated that laws can assist or thwart public health efforts. The new focus on infectious threats and bioterrorism, starting with the anthrax attacks through the mail and continuing with SARS, has highlighted the important role of law.For lawyers to (...) serve as effective partners in public health, they should have a basic familiarity with public health: how public health professionals see the world and the key issues they tackle. A practical grasp of public health can be acquired, and often is acquired, “on the job.”. (shrink)

Offering a format that is significantly different than that offered by other books, Ethical Health Care beings by asking what is meant by health and how it is achieved. The book then proceeds to explore with care and context the nature of the relationship between patients and clinicians, health care providers and the societies in which they inhabit, and finally the relationship between the health care enterprise and the international community. By emphasizing the ethical issues that arise in the broad (...) quest to foster human health, and appreciating that health is not primarily a function of medical interventions, Ethical Health Care introduces students to problems such as the international distribution of pharmaceuticals and the dangers of reemerging infections. To a far greater extent than is done traditionally, Ethical Health Care provides an interdisciplinary perspective to bioethics, relying heavily upon the teachings of economics, law, and public health. (shrink)

This comment on Professor ter Meulen's paper, "Solidarity and Justice in Health Care," offers additional perspectives on solidarity's importance for health. Noting the findings of social epidemiology, the paper explains that health has important public good dimensions. It is both non-rivlalrous because one person's health does not diminish another's, and it is largely determined by non-excludable access goods, including social networks, social determinants, and public health efforts. The public good dimension of health underscores the mutual dependence and shared stake that (...) people have with respect to health, and highlights the importance of coming together in solidarity for the sake of health. This is not to say that solidarity cannot also foster exclusionary tendencies; however, the recognition of mutual dependency with respect to health can foster an inclusive solidarity for the health of all people. (shrink)

The second of five commentaries on “Bloomberg's Health Legacy: Urban Innovator or Meddling Nanny?” from the September‐October 2013.

This is a tale of two social structures, health care and education. Both systems are undeniably critical to our social fabric, and even to our national prosperity. Both systems also provide services that are uniquely personal and vital to individual well-being. And both systems are now widely perceived as being in “crisis,” as needing “fundamental reform.”At the same time, there are fundamental differences in the ways the two sectors are organized and understood. Health care is essentially a system of private (...) relationships; education a system of public responsibilities. Although each system is extraordinarily complex and contains elements that defy neat categorization, by highlighting the contrasting visions and structures of the two, one gleans useful insights both into the distinctive failings of each and into potential directions for reform. (shrink)

Each of us has written about the importance of reframing the debate over public health paternalism. Our individual explorations of the many and varied paths forward from libertarian “nanny state” objections to the “new public health” have been intimately informed by collaboration. This article represents a summary of our current thinking — reflecting the ground gained through many fruitful exchanges and charting future collaborative efforts.Our starting point is that law is a vitally important determinant of population health, and the interplay (...) among law, social norms, cultural beliefs, health behaviors, and healthy living conditions is complex. Anti-paternalists’ efforts to limit the scope of public health law to controlling only the proximal determinants of infectious diseases are utterly unjustifiable in the face of so much preventable death, disability, and disparity. Equally important, the anti-paternalism push is deeply counter-majoritarian and undemocratic, threatening to disable communities from undertaking measures to improve their own well-being. (shrink)

Following the confirmation of U.S. Supreme Court Justice Brett Kavanaugh in one of the most sensational jurisprudence events of the modern era, we examine potential repercussions across multiple themes in public health, law, and policy stemming from his ideology and the confirmation process.

This article discusses how advocacy can be taught to both law and public health students, as well as the role that public health law faculty can play in advocating for public health. Despite the central role that advocacy plans in translating public health research into law, policy advocacy skills are rarely explicitly taught in either law schools or schools of public health, leaving those engaged in public health practice unclear about whether and how to advocate for effective policies. The article (...) explains how courses in public health law and health justice provide ideal opportunities to teach advocacy skills, and it discusses the work of the George Consortium, which seeks to engage public health law faculty in advocacy efforts. (shrink)

After reading the research of Mexican anthropologists concerning the possible retention of traditional indigenous African beliefs in contemporary Mexican communities of African descent, I interviewed women of the region who migrated to Atlanta, Georgia about their spiritual beliefs and practices. I was surprised by the similarities in their reports to those recorded by Gonzalo Aguirre Beltran, who worked in Mexico over 60 years ago. I traveled to the town of Chautengo in coastal Guerrero state in 2005 to talk with women (...) about their beliefs, especially those that relate to the existence of a relationship between humans and animal-tonos. The human–animal-tono relationship exemplifies a belief in an intimate relationship between humans and totem animals. The well-being of the human partner depends upon the well-being of the animal. Keeping the human–animal relationship balanced is key in the conceptualization of illness and informs related healing practices. I present an interview with a woman from Chautengo with an interpretation that exemplifies the persistence of ideas related to human–animal relationships that are possibly informed by traditional indigenous African cosmologies, brought by enslaved Africans over 500 years ago, and have been archetypally preserved in isolated communities along the Pacific coast of Mexico. (shrink)