Public Health Legal Preparedness Research Articles

Coronavirus, Civil Liberties, and the Courts: The Case Against 'Suspending' Judicial Review

Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are “extraconstitutional”), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances? In this essay, we argue that the mitigation strategies adopted in response to the coronavirus pandemic highlight three central problems with the “suspension” approach to judicial review of crisis powers. First, the suspension principle adopted by judges in some crisis powers cases is inextricably linked to the idea that the crisis is of finite — and limited — duration. In Smith v. Avino, for example, the underlying crisis (Hurricane Andrew) was over by the time the challenged county-wide curfew was put into effect; the restriction on civil liberties was meant as a stopgap measure while the government restored order. The Fifth Circuit’s decisions upholding Texas's coronavirus abortion ban likewise characterizes Texas’s order as effectuating a “temporary loss of constitutional rights.” But in a public health crisis like the coronavirus pandemic, when the restrictions are designed to slow the progress of the epidemic (and there might therefore be a relationship between the efficacy of the restrictions and the duration for which they will be needed), the stopgaps are potentially indefinite. Allowing for the suspension of more rigorous judicial review in such circumstances therefore risks allowing the exception to swallow the rule. Second, and relatedly, the suspension model presupposes that “ordinary” judicial review will judge government actions in a crisis too harshly — and, in the process, risks handicapping the government’s response. Here, too, the coronavirus pandemic provides a useful (if still-unfolding) counterexample: Even if curtailments of liberty — from business closures to shelter-in-place orders to quarantine orders for travelers — are subjected to the normal scrutiny arising from comparable government incursions into civil liberties, they are likely to be upheld. Every level of government has an unquestionably compelling interest in preventing the spread of a highly contagious (and often lethal) disease. To similar effect, if that compelling interest can be reasonably vindicated through less restrictive measures that are equally available to the government at the same time, it hardly undermines the government’s response to require it to pursue them. Finally, and perhaps most importantly, the suspension model wholly discounts the independent checking function of courts in a crisis — as perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches. By subjecting government incursions on civil liberties to meaningful judicial review, courts force the government to do its homework — to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes. In the process, a robust judicial role may be indispensable not only in minimizing the loss of our liberties, but also in facilitating the development of a sustainable, long-term response to this crisis — and a body of law to guide public health legal preparedness for the next one.

Lessons from Public Health Legal Preparedness to Operationalize Health in All Policies

The Health in All Policies (HiAP) approach aims to integrate health into decisions across sectors to address the social determinants of health and enhance health equity. Jurisdictions interested in implementing this approach may seek clarification about how to operationalize it. Public health legal preparedness provides useful lessons for HiAP. While there are important differences between these two areas, there are also critical similarities. These similarities are particularly important because HiAP and public health preparedness are complementary. Law has been essential in advancing public health preparedness by helping to: (1) prioritize planning; (2) allocate responsibility; (3) enhance collaboration and coordination; (4) establish responsive funding; and (5) emphasize the needs of vulnerable populations. Law can be used similarly to advance HiAP.

Legal Preparedness for Hurricane Sandy: Authority to Order Hospital Evacuation or Shelter-in-Place in the Mid-Atlantic Region.

Hospitals were once thought to be places of refuge during catastrophic hurricanes, but recent disasters such as Hurricanes Katrina and Sandy have demonstrated that some hospitals are unable to ensure the safety of patients and staff and the continuity of medical care at key times. The government has a duty to safeguard public health and a responsibility to ensure that appropriate protective action is taken when disasters threaten or impair the ability of hospitals to sustain essential services. The law can enable the government to fulfill this duty by providing necessary authority to order preventive or reactive responses--such as ordering evacuation of or sheltering-in-place in hospitals--when safety is imperiled. We systematically identified and analyzed state emergency preparedness laws that could have affected evacuation of and sheltering-in-place in hospitals in order to characterize the public health legal preparedness of 4 states (Delaware, Maryland, New Jersey, and New York) in the mid-Atlantic region during Hurricane Sandy in 2012. At that time, none of these 4 states had enacted statutes or regulations explicitly granting the government the authority to order hospitals to shelter-in-place. Whereas all 4 states had enacted laws explicitly enabling the government to order evacuation, the nature of this authority and the individuals empowered to execute it varied. We present empirical analyses intended to enhance public health legal preparedness and ensure these states and others are better able to respond to future natural disasters, which are predicted to be more severe and frequent as a result of climate change, as well as other hazards. States can further improve their readiness for catastrophic disasters by ensuring explicit statutory authority to order evacuation and to order sheltering-in-place, particularly of hospitals, where it does not currently exist.

Beyond Public Health Emergency Legal Preparedness: Rethinking Best Practices

The concept of public health legal preparedness grew out of the public health emergency preparedness movement, but was conceptualized more broadly to be utilized to achieve full public health legal preparedness for all types of public health threats. This article analyzes the need to refocus public health legal preparedness to include all areas of public health law and presents a new model for the fourth core element that will aid in the development of legal benchmarks so public health systems can more effectively work towards attaining public health legal preparedness in all areas of public health practice.

Achieving public health legal preparedness: how dissonant views on public health law threaten emergency preparedness and response

Effective management of modern public health emergencies requires the coordinated efforts of multiple agencies representing various disciplines. Organizational culture differences between public health (PH) and emergency management (EM) entities may hinder inter-agency collaboration. We examine how PH and EM differ in their approach to PH law and how such differences affect their collaboration towards PH preparedness. We conducted 144 semi-structured interviews with local and state PH and EM officials between April 2008 and November 2009. Thematic qualitative analysis in ATLAS.ti was used to extract characteristics of each agency's approach to PH legal preparedness. Two conflicting approaches to the law emerge. The PH approach is characterized by perceived uncertainty regarding legal authority over preparedness planning tasks; expectation for guidance on interpretation of existing laws; and concern about individual and organizational liability. The EM approach reveals perception of broad legal authority; flexible interpretation of existing laws; and ethical concerns over infringement of individual freedoms and privacy. Distinct interpretations of preparedness law impede effective collaboration for PH preparedness. Clarification of legal authority mandates, designation within laws of scope of preparedness activities and guidance on interpretation of current federal and state laws are needed.

Public Health Legal Preparedness in Indian Country

American Indian/Alaska Native tribal governments are sovereign entities with inherent authority to create laws and enact health regulations. Laws are an essential tool for ensuring effective public health responses to emerging threats. To analyze how tribal laws support public health practice in tribal communities, we reviewed tribal legal documentation available through online databases and talked with subject-matter experts in tribal public health law. Of the 70 tribal codes we found, 14 (20%) had no clearly identifiable public health provisions. The public health-related statutes within the remaining codes were rarely well integrated or comprehensive. Our findings provide an evidence base to help tribal leaders strengthen public health legal foundations in tribal communities.

Assessing Laws and Legal Authorities for Obesity Prevention and Control

Law is an essential tool for public health practice, and the use of a systematic legal framework can assist with preventing chronic diseases and addressing the growing epidemic of obesity.The action options available to government at the federal, state, local, and tribal levels and its partners can help make the population healthier by preventing obesity and decreasing the growing burden of associated chronic diseases such as cardiovascular disease and Type 2 diabetes. The Centers for Disease Control and Prevention (CDC) uses the four-part systematic legal framework commonly referred to as “public health legal preparedness” to demonstrate the essential role law can play for any public health issue. This paper uses the “laws and legal authorities” component of the framework and should be considered in combination with the competencies, coordination, and information-best practices components of the framework.

Assessing Information on Public Health Law Best Practices for Obesity Prevention and Control

In 2008, Representative John Read of Mississippi recently co-sponsored state legislation that would ban restaurants from serving obese customers. He later admitted that the bill was a publicity stunt,meant to “shed a little light on the number one problem in Mississippi.” Although controversial, Read’s bill exemplifies both the current perception of obesity as a national public health problem and the general sentiment underlying the types of interventions that are being considered to address this issue. The proposed legislation also demonstrates how policymakers can use or, in this case misuse, information about obesity to generate significant discussion on an issue along with ill-conceived legal interventions.Information sharing and the methods used to share best practices are components of the fourth core element of public health legal preparedness.

Improving Information on Public Health Law Best Practices for Obesity Prevention and Control

This paper is the companion to “Assessment of Information on Public Health Law Best Practices for Obesity Prevention and Control,” and the fourth of four action papers produced as part of the National Summit on Legal Preparedness for Obesity Prevention and Control, convened June 2008 by the Centers for Disease Control and Prevention, the Robert Wood Johnson Foundation, and the American Society for Law, Medicine Ethics. The four action papers present options to address gaps in the four core elements of public health legal preparedness as outlined in the relevant companion papers. The four core elements are: (1) laws and legal authorities; (2) legal competencies for public health professionals to apply those laws and authorities; (3) coordination of law-based efforts across jurisdictions and sectors, and (4) information on public health law best practices.

The Practice of Biosecurity in Canada: Public Health Legal Preparedness and Toronto's SARS Crisis

The experience of the 2003 Severe Acute Respiratory Syndrome outbreak in Toronto, Canada provides an important example for understanding how the relationship between national security and public health is being defined in the contemporary context of emerging infectious diseases and the globalization of public health. This paper argues that Canada's public health legal framework is a critical part of Canada's practice of ‘biosecurity’ through which an unpredictable and continually emergent ‘new reality’, is mobilized to justify an ongoing state of emergency. Norms about state power and human rights are suspended in the interest of global capitalism and at the expense of those most vulnerable to the short-term and long-term effects of infectious disease.

Improving Laws and Legal Authorities for Public Health Emergency Legal Preparedness

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness (Summit) convened in June 2007 by the Centers for Disease Control and Prevention and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration by policymakers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.One expert's framing of the mission of public health may help improve understanding of the range of hazards for which to be legally prepared. These hazards include urgent realities — such as chronic disease, injury, disabilities, conventional communicable diseases, and an aging and obese population — and urgent threats, such as pandemic influenza, natural disasters, and terrorism.

Improving Cross-Sectoral and Cross-Jurisdictional Coordination for Public Health Emergency Legal Preparedness

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness (Summit) convened in June 2007 by the Centers for Disease Control and Prevention (CDC) and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of public health legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration by policy makers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.Advancing and protecting the public's health depends upon the coordination of actions by many, diverse partners. For effective public health preparedness, there must be effective coordination of legal tools and law-based strategies across local, state, tribal, and federal jurisdictions, and also across sectors such as public health, health care, emergency management, education, law enforcement, community design, and academia.

Improving Information and Best Practices for Public Health Emergency Legal Preparedness

This is one of four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness convened in June 2007 by the Centers for Disease Control and Prevention and nineteen multi-disciplinary partner organizations. Each of the action agenda papers deals with one of the four core elements of public health legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration by policymakers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.This paper focuses on the fourth core element: information that can be used in shaping and applying law as a public health tool, specifically in the context of public health emergencies.

Assessing Laws and Legal Authorities for Public Health Emergency Legal Preparedness

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines the systems and relationships within which public health practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system.

Public Health Legal Preparedness: A Framework for Action

Public health emergencies have occurred throughout history, encompassing such events as plagues and famines arising from natural causes, disease pandemics interrelated with wars (such as the influenza pandemic of 1918-1919), and industrial accidents such as the 1986 Chernobyl disaster, among others. Law and legal tools have played an important role in addressing such emergencies. Three prime U.S. examples are Congressional authorization of quarantine as early as 1796, legally mandated smallpox vaccination upheld in a landmark 1905 U.S. Supreme Court ruling, and the President's 2003 executive order adding SARS to the federal government's list of “quarantinable communicable diseases.”The public health emergencies of the present — both actual and potential — pose equally serious threats but do so in the context of greatly magnified expectations that stem directly from the attacks of September 11, 2001, and the immediately following anthrax attacks.

Improving Competencies for Public Health Emergency Legal Preparedness

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness (Summit) convened in June 2007 by the Centers for Disease Control and Prevention, and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of legal preparedness: laws and legal authorities; competency in using those laws; and coordination of law-based public health actions; and information.This action agenda offers options for consideration by those responsible for or interested in ensuring that public health professionals, their legal counsels, and relevant partners understand the legal framework in which they operate and are competent in applying legal authorities to public health emergency preparedness.Competencies are critical to an individual's ability to make effective legal response to all-hazards public emergencies.

Public Health Emergency Legal Preparedness: Legal Practitioner Perspectives

This paper provides an overview of recent US Department of Health and Human Services (HHS) initiatives and efforts — under the leadership of the General Counsel, the Secretary, and the President — regarding legal preparedness for public health emergencies. In addressing this topic, the paper focuses on four core elements comprising public health legal preparedness:(1)effective legal authorities to support necessary public health activities;(2)competencies of public health professionals to know and then to apply those laws;(3)coordination of the application of laws across jurisdictions (local, state, tribal, federal, and international) and across multiple sectors; and(4)information and best practices in public health law.

The National Action Agenda for Public Health Legal Preparedness: Summit Planning Committee

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Assessing Information and Best Practices for Public Health Emergency Legal Preparedness

Information is the fourth core element of public health legal preparedness and of legal preparedness for public health emergencies specifically. Clearly, the creation, transmittal, and application of information are vital to all public health endeavors. The critical significance of information grows exponentially as the complexity and scale of public threats increase.Only a small body of organized information on public health law existed before the 21st century: a series of landmark books published beginning in 1926 by Tobey, Grad (1965), and Wing (1974); model public health laws published as early as 1907; systematic reviews of original research studies published in the 1990s; and a small but growing number of articles published in public health journals and law reviews.With the new century came new public health law programs and activities at the Centers for Disease Control and Prevention (CDC), in public health professional associations, and in numerous non-profit and academic organizations.

Assessing Cross-Sectoral and Cross-Jurisdictional Coordination for Public Health Emergency Legal Preparedness

A community's abilities to promote health and maximize its response to public health threats require fulfillment of one of the four elements of public health legal preparedness, the capacity to effectively coordinate law-based efforts across different governmental jurisdictions, as well as across multiple sectors and disciplines. Government jurisdictions can be viewed “vertically” in that response efforts may entail coordination in the application of laws across multiple levels, including local, state, tribal, and federal governments, and even with international organizations. Coordination of legal responses to public health emergencies also may involve a horizontal dimension comprising numerous and diverse sectors, such as public health, public and private health care, emergency management, education, law enforcement, the judiciary, and the military.Although responses to many acute health threats can implicate multiple jurisdictions and sectors, the jurisdictional and sectoral dimensions of legal preparedness are complex and may vary substantially by the nature of a threat, its geographic and geopolitical extent, and the operational response demanded.