Public Health Law: Improving Health Outcomes

1. Public Health Law: Improving Health Outcomes Marice Ashe, JD, MPH; Executive Director, Public Health Law & Policy Association of State & Territorial Public Health Nutrition Directors June 13, 2011

2. Public Health Law & Policy We partner with state and local leaders to improve health in all communities, especially the underserved. We do this by researching legal and policy questions,drafting policy language, and training community leaders to put these ideas to work.

3. Disclaimer The information provided in this seminar is for informational purposes only, and does not constitute legal advice. Public Health Law & Policy does not enter into attorney-client relationships. The primary purpose of this training is to address legal and/or policy options to improve public health. There is no intent to reflect a view on specific legislation. PHLP incorporates objective non-partisan analysis, study, and research in all our work.

4. What does the US Constitution have to do with public health?

8. Work in All Sectors Land Use Redevelopment Economic Development Public Health Housing Transportation Schools Law Enforcement

9. Federalism and Police Power US Congress State legislature Hey Paul/CreativeCommons/Flickr Clinton Steeds/CreativeCommons/Flickr City Hall Dave_mcmt/CreativeCommons/Flickr

10. Cooperative Federalism

11. Federal regulations incentivize local action

12. Federal Government Can Prohibit or Preempt Action, too

13. PREEMPTION …is the invalidation of local law by state law. OR …is the invalidation of state and local law by federal law. www.flickr.com/photos/avlxyz/2523993770//

14. Types of Preemption • Ceiling Preemption • Floor Preemption www.flickr.com/photos/johncarljohnson/153077991/

15. Individual Rights and the Common Good

16. Police Power Police Power The powers not delegated to the US by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people. This is called the police power

17. Police Power Police Power The powers not delegated to the US by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people. This is called the police power

18. Basic Requirements of Police Power Cannot be arbitrary or oppressive; Must be rationally related to public health, safety, or general welfare; and Must be reasonably designed to correct a condition adversely affecting the public good. Can not violate state and federallaws orconstitutions

19. Investigate infectious disease outbreaks Examples Image: http://sphtc.org/timeline/Mallon-Mary_01.jpge

20. Investigate infectious disease outbreaks Ban cigarette samples near schools Examples

21. Investigate infectious disease outbreaks Ban cigarette samples near schools Zoning for farmers markets Examples

22. Investigate infectious disease outbreaks Ban cigarette samples near schools Zoning for farmers markets Require menu labeling Examples

23. Public Health Individual Rights

24. Constitutional Rights 1. Free Speech 2. Due Process 3. Equal Protection

25. Constitutional Right Free Speech

26. Question Why can’t government ban junk food billboards within 1,000 feet of urban schools – but can still ban junk food advertisements in schools?

29. First Amendment The government “shall make no law . . . abridgingthe freedom of speech”

31. Regulating Products vs. Regulating Ads

32. Commercial Speech Test http://www.flickr.com/photos/13802839@N05/3201341679/ Key Question: Does the regulation prohibit a lot more speech than is necessary to address the problem? FlickrCC_3733115397_bobster855

33. K – 12 Schools are Non-Public Forums Advertising can generally be limited or prohibited without violating the First Amendment

34. Question Why can’t government ban junk food billboards within 1,000 feet of urban schools – but can still ban junk food advertisements in schools?

35. Answer Under the commercial speech test, a ban on junk food advertisements near urban schools is probably too broad. A school is a non-public forum where the government has a lot of leeway to restrict speech.

36. Requiring Point of Sale Health Warnings www.diseaseproof.com/AFPsmoke.jpg

37. The Compelled Speech Test • Reasonable relationship: Are the required factual disclosures reasonably related to the government’s interest in preventing consumer deception? • A warning has only indisputable facts • Findings based on strong research • Concluding that warning needed to protect health • Consumers will be deceived if no warning

38. Questions?

39. Constitutional Right Due Process

40. Question Why is it easier for the government to regulate smoking in public, trans fats in restaurants, and drunk driving than it is for the government to regulate contraception, abortion, or consensual sex between adults of the same gender?

41. Due Process (5th and 14th Amendments) The government cannot deprive individuals of life, liberty, or property without due process of law

42. Substantive Due Process Does the government have an appropriate justification for depriving someone of life, liberty, or property?

43. Fundamental Liberties Flickr CC bestphoto Flickr CC Jenny Lee Silver http://www.myweddingfavorsetc.com/product/CR+707552.html

44. Key Question: Is the government action narrowly tailoredor is it theleastrestrictive alternativeto achieve a compellinggoal? Strict Scrutiny Test

45. Fundamental Liberties? No. Flickr CC Simone_Ramella

46. Rational Basis Test Key Question: Is the government action reasonably relatedto a legitimate government goal? http://farm2.static.flickr.com/1103/537788851_f0b13b7528.jpg

47. Comparison

48. Question Why is it easier for the government to regulate smoking in public, trans fats in restaurants, and drunk driving than it is for the government to regulate contraception, abortion, or consensual sex between adults of the same gender?

49. Answer Substantive due process requires that: • a regulation of smoking, restaurants, or driving need only be reasonably related to a legitimate government goal • a regulation of contraception, abortion, or same-sex intimacy must be narrowly tailored to achieve a compelling government goal

50. Questions?