Core public health—food and water sanitation, sewage and refuse disposal, vermin control, and the management of zoonosis and communicable diseases—depends on law as much as on science. From the Roman sewers and public water systems, and the Venetian 40-day interregnum for ships entering port, to the recent eradication of smallpox, public health depends on the power of the state. Public health authorities must seize property, close businesses, destroy animals, or involuntarily treat, or even lock away, individuals. Without the coercive power of the state, public health and modern society would be impossible.
With the exception of its higher rates of HIV infection, the United States is similar to other developed countries. For the past 30 years, communicable diseases have been relatively well controlled, shifting the public focus to the problems of chronic diseases. The September 11, 2001, terrorist attacks on the United States, which were followed by several deaths from anthrax spores carried through the mail, refocused public opinion on public health and its role in protecting the nation from bioterrorism. The specter of bioterrorism, especially an attack with smallpox, has forced a reappraisal of the balance between individual liberty and public health authority.
This chapter focuses on public health law in the United States. It reviews the constitutional basis for public health law, the routine practice of public health law as administrative law, and concludes with a discussion of the future of public health law, which includes the role of public health law in national security law.
PUBLIC HEALTH AND PRIMARY CARE
Public health law, as discussed in this chapter, deals with the role of the health department as a regulatory agency. If a health department also delivers primary care, it is a dual role department. When a health department provides health care to individuals, whether it is prenatal care, well-child checkups, or general primary care, the health department employees or contractors providing medical care must follow the same laws on privacy and patient autonomy as other health-care providers. As one example, a prenatal care clinic must comply with the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).1 HIPAA limits the transfer of personal medical information without the patient's consent, and sets out standards for how the privacy of that information must be protected. HIPAA does not apply to public health reporting or the handling of information for public health regulatory purposes.
Specialty public health treatment programs, such as tuberculosis control, mix the personal medical care and public health regulatory roles. The basic patient medical information that is not necessary for disease control (personal health information other than the diagnosis of the communicable disease) is treated the same as medical information in other clinical settings. Given the complexity of health-care privacy laws, it is critical that the disease control function be clearly separated from the medical services. In effect, the ...