Introduction to Public Health in the Constitutional Design

1. Introduction to Public Health in the Constitutional Design Samantha K. Graff, J.D. Staff Attorney Ventura County Health Department October 29, 2003 "The findings and conclusions in this presentation have not been formally disseminated by the Centers for Disease Control and Prevention and should not be construed to represent any agency determination or policy.”

2. Summary of Learning Objectives • Understand your power in relation to the other branches of government, the other levels of government, and the individuals you serve • Recognize when your actions might have legal implications so you can alert your supervisor or contact your county counsel

3. Constitution: Three Primary Functions • Divide power among three branches of government • Allocate power between levels of government • Limit the power of government over individuals

4. Constitution: Three Primary Functions • Divide power among three branches of government • Allocate power between levels of government • Limit the power of government over individuals

5. Three Branches of Government: Legislative • Creates statutes, which • Require or prohibit certain actions • Raise money • Spend and set conditions on spending

6. Three Branches of Government: Executive • Executive agencies execute and enforce the law • Implement statutes directly • Issue regulations to guide implementation * Health departments and employees are part of the executive branch

7. Legislative and Executive Branches in Action • Legislative statute (CA Health and Safety Code): • Sets safety and labeling standards for raw foods • Charges DHS and local health departments with executing and enforcing these standards • Problem: bacteria-laden Gulf oysters • DHS executive regulations and actions: • 1992-2002: consumer education and warning labels at point of sale • 2003: ban on sale of Gulf oysters unless oysters are subject to post-harvest treatment process

8. Three Branches of Government: Judicial • Resolves legal disputes • Interprets statutes, regulations, constitutional law • Develops case law precedent

9. Constitution: Three Primary Functions • Divide power among three branches of government • Allocate power between levels of government • Limit the power of government over individuals

10. Levels of Government • Allocation of power to make and enforce laws FEDERAL US CONSTITUTION STATE CA CONSTITUTION LOCAL

11. Overlapping Jurisdiction • Federal, state, and local governments share the power to make and enforce laws addressing many public health issues • E.g., injury prevention, clean air and water, infectious disease control and surveillance, tobacco control

12. Preemption • Higher levels of government sometimes “preempt” lower levels from making and enforcing laws in certain subject areas • E.g., federal preemption over labeling and advertising of cigarettes • E.g., state preemption over the legal age for purchasing tobacco products

13. Constitution: Three Primary Functions • Divide power among three branches of government • Allocate power between levels of government • Limit the power of government over individuals

14. Constitutional Limits of Government Power Over Individuals • Key constitutional limits on the ability of the government to pass and enforce laws that affect individual freedom: • Procedural due process • Substantive due process • Equal protection • Free exercise of religion • Freedom from unreasonable search and seizure • Free speech

15. Judicial Tests • Courts apply different tests when different constitutional rights are at stake • All of the tests involve weighing government interests against individual interests

16. Question • Why is a TB patient entitled to a lawyer when contesting a civil detention but a double-parker is not entitled to a lawyer when contesting a parking ticket?

17. The Due Process Clause: Procedural Due Process • 5th and 14th Amendments: the government cannot deprive individuals of life, liberty, or property without due process of law • Many government actions affect someone’s life, liberty, or property • Procedural due process: Does the government use a fair process before depriving someone of life, liberty, or property?

18. Procedural Due Process Requirements • Basic requirements: notice and means to object • Additional requirements depending on individual and government interests at stake: • Access to legal counsel • Hearing before an impartial decision-maker • Confrontation of witnesses • High standard of proof • Appeal

19. Procedural Due Process in Action • A nonadherent TB patient was involuntarily detained in a hospital without legal representation • Patient: procedural due process was lacking • Court: • Individual interest involves a huge deprivation of liberty • Government interest in expediency would not be undermined if patient had access to a lawyer • Patient is entitled to a hearing with a lawyer

20. Answer • Why is a TB patient entitled to a lawyer when contesting a civil detention but a double-parker is not entitled to a lawyer when contesting a parking ticket? • There are more rigorous procedural due process requirements when the government puts someone behind bars than when the government makes someone pay a small fine

21. Question • Why is it easier for the government to regulate smoking in public, unsanitary restaurants, and drunk driving, than it is for the government to regulate contraception and abortion?

22. The Due Process Clause:Substantive Due Process • 5th and 14th Amendments: the government cannot deprive individuals of life, liberty, or property without due process of law • Substantive due process: Does the government have an appropriate justification for depriving someone of life, liberty, or property? • To decide if a government action is justified, courts look at the worthiness of the government’s goal and the fit between the action and the goal

23. Heightened Scrutiny Test • Heightened scrutiny test applies when a special constitutionally protected right is at stake • e.g., the right to privacy around procreation, contraception, and marriage • e.g., the right to privacy in one’s medical records • e.g., the right to travel and move about • e.g., the right to refuse medical treatment • Test: government action must be narrowly tailored or must be the least restrictive alternative to achieve an important or compelling government goal

24. Heightened Scrutiny in Action • In 1900, SF Health Department quarantined 12 blocks of Chinatown because 9 residents had died of plague in a 7-8 block radius • Resident: the quarantine violates my right to travel • Court: • The right to travel is specially protected, so the heightened scrutiny test applies • Containing the plague is a compelling goal for the city • The quarantine is unconstitutional because the deaths occurred within 7 or 8 blocks, so 12 block radius was not narrowly tailored

25. Rational Basis Test • Rational basis test applies when most liberty or property interests are at stake • e.g., the ability to smoke in public • e.g., the ability to run a dirty restaurant • e.g., the ability to drink and drive • Test: government action must be reasonably related to a legitimate government goal

26. Rational Basis Test in Action • City ordinance: no keeping pot-bellied pigs on lots that are less than an acre • Pig owner: this law violates my liberty and property interests in keeping my pigs • Court: • There is no special constitutionally protected right to possess pigs, so the rational basis test applies • The city has a legitimate goal: preventing stench and spread of disease • The law has a reasonable relationship to that goal

27. Comparison

28. Answer • Why is it easier for the government to regulate smoking in public, unsanitary restaurants, and drunk driving, than it is for the government to regulate contraception and abortion? • Substantive due process requires that a regulation of smoking, restaurants, or driving need only be reasonably related to a legitimate government goal • Substantive due process requires that a regulation of contraception or abortion must be narrowly tailored to achieve a compelling government goal

29. Question • Why is it easy for the government pass a law that bans minors from entering a store that sells drug paraphernalia, but it is difficult for the government to pass a law that bans a particular racial or ethnic minority from entering such a store?

30. Equal Protection • 5th and 14th Amendments: the government shall not “deny to any person within its jurisdiction the equal protection of the laws” • Equal protection: Does the government have an appropriate justification for discriminating against someone just because that person belongs to a particular group?

31. Heightened Scrutiny Test • Heightened scrutiny test applies if the “protected class” of race or ethnicity is affected • Test: government action must be narrowly tailored to achieve a compelling government goal

32. Heightened Scrutiny Test in Action • 1900 SF Health Department quarantine of Chinatown: ethnic Chinese but not other residents • Resident: this violates my right to equal protection • Court: • The quarantine is based on a protected class, so heightened scrutiny applies • Containing the plague is a compelling goal for the city • The quarantine is not narrowly tailored because it treats similarly situated neighbors differently only because of their race/ethnicity

33. Rational Basis Test • Rational basis test applies when no “protected class” is affected • e.g., ban on sale of alcohol or tobacco to minors but not adults • e.g., Medi-Cal for lower income people but not higher income people • Test: government action must be reasonably related to a legitimate government goal

34. Answer • Why is it easy for the government pass a law that bans minors from entering a store that sells drug paraphernalia, but it is difficult for the government to pass a law that bans a particular racial or ethnic minority from entering such a store? • Equal protection requires that a law discriminating against minors need only be reasonably related to a legitimate government goal • Equal protection requires that a law discriminating against a racial or ethnic minority must be narrowly tailored to achieve a compelling government goal

35. Question • Why is it constitutional for the government to require people to be vaccinated even if vaccination violates their religious beliefs?

36. Free Exercise of Religion • 1st Amendment: the government “shall make no law . . . prohibiting the free exercise [of religion]” • Test: a law does not violate the Free Exercise Clause if it is a valid and neutral law of general applicability • A valid and neutral law of general applicability does not specifically target religious conduct • A valid and neutral law of general applicability may have an incidental impact on religion

37. Free Exercise Test in Action • Arkansas law: all students must be immunized against Hepatitis B • Parent: this law violates the Free Exercise Clause because vaccination is against my religious beliefs • Court: • This is a valid and neutral law of general applicability because it targets public health, not religion • The law is constitutional even though it has an incidental impact on some people’s religious practices

38. Answer • Why is it constitutional for the government to require people to be vaccinated even if vaccination violates their religious beliefs? • A vaccination law does not violate the Free Exercise Clause because it is a valid and neutral law of general applicability that is based on public health goals and that does not directly target religious conduct

39. Questions • Why is it constitutional for the government to subject workers in certain industries to random drug and alcohol testing without getting permission from the people being searched and without first obtaining a warrant? • Why is it constitutional for the government to conduct a nursing home inspection without getting permission from the organization being searched and without first obtaining a warrant?

40. Search and Seizure • 4th Amendment: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause . . .” (emphasis added) • Two 4th Amendment principles • No unreasonable searches and seizures • A warrant based on probable cause is required to search or seize

41. Balancing Test for Reasonableness • Balancing test to determine whether a search is “reasonable:”

42. Balancing Test in Action • Federal regulation: railroad workers are subject to random drug and alcohol testing • Employee: this is an unreasonable search • Court: • It is a weighty government goal to try to prevent train accidents and casualties • Railroad workers have a minimal expectation of privacy around blood, breath, and urine tests • The regulation is not unreasonable

43. Special Need Exception to Warrant Rule • In a non-criminal context, no warrant is necessary so long as there is a “special need” for the government to conduct the search • “Special need” means the warrant requirement is impractical • E.g., random drug and alcohol testing for railroad workers, random drunk driving checkpoints, certain health and safety inspections

44. The Warrant Rule Applied to Inspections • Search warrants are required except: • If there is consent • If there is an immediate threat to health or safety • If the business being inspected is part of a heavily regulated industry • If the inspection occurs in open air

45. Answer • Why is it constitutional for the government to subject workers in certain industries to random drug and alcohol testing without getting permission from the people being searched and without first obtaining a warrant? • Why is it constitutional for the government to conduct a nursing home inspection without getting permission from the organization being searched and without first obtaining a warrant? • It does not violate the 4th Amendment to conduct a search without obtaining permission or a warrant, so long as the search is “reasonable” and there is a “special need” for the search

46. Question • Why can’t the government ban smokeless tobacco advertisements within 1,000 feet of schools in urban areas?

47. Free Speech • 1st Amendment: the government “shall make no law . . . abridging the freedom of speech” • Key question: Is the government restriction targeted at the time, place, or method of the speech or is it targeted at the content of the speech?

48. Content-Neutral Restrictions • In public places, the government can generally make content-neutral restrictions on speech • Examples of valid content-neutral regulations: • CA state law: no more than 33% of the windows of alcohol retailers may be covered with signs • Ventura city ordinance: in M-2 zone, billboards larger than 300 square feet are prohibited

49. Content-Based Restrictions • It is very difficult for the government to make content-based restrictions on speech unless the speech is deemed unprotected or commercial • Unprotected speech: calling “fire” in a crowded theater, child pornography, some types of defamation • Commercial speech: advertising

50. Commercial Speech Test • A government restriction on truthful advertising of lawful activity will be upheld if the restriction directly advances a substantial government goal and there is a reasonable fit between the restriction and the goal