Health Law
Section Newsletter
Spring 2008

Spring 2008

Welcome to the reintroduction of the Health Law SPIG Newsletter.

Chair:

Ross D. Silverman, JD, MPH

rsilverman@siumed.edu

 

Editor:

Benjamin Mason Meier, JD, LLM, MPhil

bmm2102@columbia

 

To join the Health Law SPIG, please contact APHA Member Services by phone at (202) 777-2400 or e-mail (membership.mail@apha.org).

Message from the Chair

Welcome to the Spring 2008 issue of the APHA Health Law Special Primary Interest Group newsletter.  I write this note to you just hours after the Supreme Court issued its decision in Boumediene v. Bush (available at http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf), a landmark opinion supporting the protection of fundamental human rights and separation of powers under the U.S. Constitution.  As Justice Kennedy wrote for the majority, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” (p. 70)  The case also has significance for its application of Constitutional protections to those people who are under the control of the U.S. government in other parts of the world.

 

Human rights and the application of law in the international context are central concerns for many members of the Health Law SPIG, and this issue of the newsletter offers information about SPIG-related activities in both areas. 

 

As much of the public health community increasingly focuses attention on global concerns (see, for example, the Web site discussing the 2008 National Public Health Week theme of Climate Change at www.nphw.org/nphw08/default.htm),  countless legal, ethical, human rights and policy questions arise.  The theme for the 2008 APHA Annual Meeting, which will take place in San Diego from Oct.  25-29, is “Public Health Without Borders.”  The Health Law SPIG’s program at the Annual Meeting will feature outstanding presentations exploring international law, globalism and human rights concerns.  Notices concerning the acceptance of presentations recently have been sent out, and we will feature more information about the panels in the next issue of the newsletter.  Thank you to Heather McCabe of IUPUI School of Law for helping to bring our program for the Annual Meeting together.

 

The feature column in this issue of the newsletter also examines global health and the law.  “The Role of Law in Responding to Modern Global Health Challenges” is written by James G. Hodge, Jr., JD, LLM, associate professor at the Johns Hopkins Bloomberg School of Public Health and executive director of the Centers for Law and the Public's Health of Johns Hopkins and Georgetown Universities.  In his insightful essay, Professor Hodge explores the possibilities and myriad obstacles to using law to improve global health.

 

The newsletter also offers announcements, events, publications and other news either involving or of interest to our SPIG members.  One date and time I want to bring to our readers’ attention is that of the Health Law SPIG’s annual business meeting, which will take place at the APHA Annual Meeting on Monday, Oct. 27, at 6:30 p.m. (location to be determined).

 

Thank you as always to Benjamin Mason Meier, JD, LLM, MPhil, of Columbia University for his work as Health Law SPIG Newsletter editor. If you would like to submit for consideration a feature column to the newsletter, or have announcements you would like placed in the fall newsletter, please send them by early September to Ben at bmm2102@columbia.edu.  And, as always, if you have questions, comments or would like to discuss the Health Law SPIG in general, please feel free to contact me at rsilverman@siumed.edu.

 

Be well,

 

Ross

 

Ross D. Silverman, JD, MPH

Chair, Health Law Special Primary Interest Group

rsilverman@siumed.edu

(217) 545-4261

              217.545.4261       

2008 APHA Annual Meeting Preview

Health Law SPIG

Monday, Oct. 27, 2008

2:30 p.m.-4:00 p.m.

 

3326.0 - International Law and Public Health

4:30 p.m.-6:00 p.m.

 

3413.0 - Invitational Session in Public Health Law

6:30 p.m.-8:00 p.m.

 

328.0 - Health Law Forum Business Meeting

Tuesday, Oct. 28, 2008

8:30 a.m.-10:00 a.m.

 

4035.0 - Public Health Law Training and Education

12:30 p.m.-2:00 p.m.

 

4193.0 - Preparedness and the Law

4:30 p.m.-6:00 p.m.

 

4358.0 - Public Health Research and the Law

Health Law in the News

The Role of Law in Responding to Modern Global Health Challenges[1]

 

James G. Hodge, Jr., JD, LLM

Associate Professor, Johns Hopkins Bloomberg School of Public Health;

Executive Director, Centers for Law and the Public's Health: A Collaborative at Johns Hopkins and Georgetown Universities

 

Protecting the public’s health in the twenty-first century is a global objective[2] that governmental agencies,[3],[4] non-governmental organizations (including APHA),[5],[6] institutions,[7] and private sector companies[8], [9] recognize requires global approaches. The Institute of Medicine has defined global health as those “. . . health problems, issues, and concerns that transcend national boundaries, may be influenced by circumstances or experiences in other countries, and are best addressed by cooperative actions and solutions.”[10] Though broad and subject to criticism, this definition encompasses diverse global health conditions such as HIV/AIDS,[11] tuberculosis, cancer, obesity, tobacco-related illnesses, and health inequities,[12] especially among children and other vulnerable populations.[13] Entrenched rates of disease and widespread poverty, coupled with public and political apathy, inadequate resources, crumbling public health and health care infrastructures, rejection of basic human rights or ethical norms, and states of war, violence, and catastrophes disfavor easy triumphs on the global health front. Multifarious efforts are needed to respond to global health challenges within a human rights framework that supports basic public health services for all. 

 

Law can be a powerful tool for addressing global health threats. Laws can facilitate public or private sector involvement, authorize specific actions (or inactions) of persons and entities, assign and coordinate responsibilities among international and domestic partners, and secure essential funding for global health programs. Conversely, laws can impede global health goals by limiting access to essential public health services, discriminating against vulnerable populations, rejecting international aid, or supporting economic or political interests over population health and human rights. “Global health law” refers to those international and domestic laws that can be wielded to respond to health challenges that (1) transcend national boundaries, and (2) may only be addressed through transnational cooperation, action and solutions.[14] 

 

Global health legal theorists and practitioners seek collaborative, international efforts to resolve significant health injustices and disparities. International laws, such as treaties, conventions, human rights norms, or WHO’s International Health Regulations (IHRs),[15] may not be enforceable to the same extent as national laws within a sovereign state. However, they offer recognized legal instruments to stimulate cooperation among nations, set global expectations, and assign responsibility for global health initiatives. Domestic laws (e.g., constitutions, statutes, regulations) regulating public health, health care or other services are equally important to global health initiatives. Domestic public health laws may, for example, support a country’s ability to reach WHO’s Millennium Development Goals. They may also hinder global health objectives, such as by disallowing reporting of communicable conditions addressed in the IHRs or failing to abate pollution that contributes to global warming. 

 

Though responses to global health issues have historically been restricted largely to governmental health agencies and organizations like WHO, global health issues have increasingly become the domain of large foundations, companies, and public/private partnerships focused on trade, security, economics, business or defense. Changes in health governance have altered the global health agenda, sometimes even to the exclusion of national health infrastructures.[16] Effective health governance is essential for law to have a constructive role, but significant shortcomings of existing governance proposals[17] necessitate new approaches,[18] specifically those grounded in legal reforms.[19]

 

Innovative interpretations of comparative international or constitutional laws are needed. Statutory and regulatory reforms are essential. Litigation strategies may further lend to global health objectives. The goal is to orchestrate these and other legal routes to address global health challenges. To enhance international collaboration, legal practitioners must be prepared to consider multiple legal approaches in stages or in unison to ameliorate global health.  They must interpret the law, assess its limits and potential negative impacts on global health outcomes, and seek positive reforms that reflect principles of human rights, ethics and evidence-based public health practices. Competing interests in regulating trade or commerce, protecting national sovereignty, or abating security threats must be appropriately balanced, but not used as guises for depriving children and other vulnerable populations of essential public health services and functions.            

           

For sure the legal paths to improving global health are precarious. Reforming laws to effectuate change can be difficult, expensive, and full of compromises.  Results are not instantaneous. Even as specific efforts in global health law are undertaken, it may be years before public health outcomes actually improve. Demonstrating that legal reforms were catalysts for improvements in global health is complicated given the diversity of factors at interplay in determining health outcomes at the transnational level. Despite these challenges, recognition of the role of law domestically and internationally to respond to global health threats is expanding and quintessential to the improvement of health outcomes on a global scale.         



[1] This manuscript is based, in part, on the prior manuscript: James G. Hodge, Jr., and Jessica O’Connell, Global health law: Conceptions and challenges, 4 ABA Health eSource 4 (2008), available at http://www.abanet.org/health/esource/Volume4/04/hodge-oconnell.html (last visited June 2, 2008).

[2] Supinda Bunyavavich and Ruth B. Walkup, U.S. Public Health Leaders Shift Toward a New Paradigm of Global Health, 91 Am. J. Public Health 1556 (2001).

[3] See http://www.hhs.gov/ogha/ and http://www.globalhealth.gov (last visited June 2, 2008).

[4] See http://www.cdc.gov/cogh/ (last visited June 2, 2008).

[5] See http://www.who.int/en/ (last visited June 2, 2008).

[7] See http://www.gatesfoundation.org/GlobalHealth/ (last visited June 2, 2008).

[10] Institute of Medicine, America’s Vital Interest in Global Health (National Academy Press 1997), available at http://www.nap.edu/readingroom/books/avi/ (last visited June 2, 2008).

[11] Craig Timberg, Rethinking AIDS Strategy After a String of Failures, Wash. Post, Nov. 1, 2007, at A12.

[12] Vicente Navarro. Health and Equity in the World in the Era of “Globalization, 29 Int’l. J. Health Serv. 215-226 (1999).

[13] Lawrence O. Gostin, Why Rich Countries Should Care About the World’s Least Healthy People, 298 J. Am. Medical Ass’n. 89-92 (2007).

[14] James G. Hodge, Jr., and Jessica O’Connell, Global health law: Conceptions and challenges, 4 ABA Health eSource 4 (2008), available at http://www.abanet.org/health/esource/Volume4/04/hodge-oconnell.html (last visited June 2, 2008).

[15] David P. Fidler. From International Sanitary Conventions to Global Health Security: The New International Health Regulations. 4 Chinese J. of Int’l. Law 325-92 (2005).

[16] Scott Burris, Governance, Microgovernance and Health, 77 Temple L. Rev. 335-61 (2004).

[17] David P. Fidler, Architecture Amidst Anarchy: Global Health’s Quest for Governance, 1 J. of Global Health Governance 1-17 (2007), available at http://diplomacy.shu.edu/academics/global_health/journal/PDF/Fidler-article.pdf (last accessed Sept. 7, 2007).

[18] Lawrence O. Gostin, Why Rich Countries Should Care About the World’s Least Healthy People, 298 J. Am. Medical Ass’n. 89-92 (2007).

[19] David P. Fidler, International Law and Global Public Health, 48 U. Kan. L Rev 1 (1999).

New Publications

The Centers for Law and the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities is pleased to announce a new and revised Web site:  http://www.publichealthlaw.net/index.php.  Among the information and features on the newly-organized site are:

* Complete listing of Centers’ Directors, Scholars, Fellows, and others;

* A new “Google-based” Web site search engine;

* Reorganized data about the Centers’ Initiatives and Projects;

* Extensive information about existing and forthcoming model state public health laws; and

* An array of course syllabi in public health law and other subjects.

Please also check for regular updates to the site in the weeks to come.  

 

Lance Gable, JD, MPH, assistant professor of Law at Wayne State University Law School, has recently co-authored the article "Global Mental Health: Changing Norms, Constant Rights"  (with Lawrence O. Gostin) in the Georgetown Journal of International Affairs. He also made presentations at the Law and Society Association's Annual Meeting ("Ethics, Human Rights and Mental Disability" and "Human More or Less? Human Rights, Transformative Technologies, and Human Bodies"), the UCLA Conference on Public Health and Disasters ("Closing Borders during Public Health Emergencies"), the Turkish Pharmaceutical Law conference in Kayseri, Turkey ("Clinical Trials in the United States: What Role for Criminal Law?"), and the annual ASLME Health Law Professors Conference ("Protecting Populations at Risk").

 

The Centers for Disease Control and Prevention’s Public Health Law Program announces the availability of eight new and improved legal preparedness tools:  

1. Public Health Emergency Law, v. 3.0

2. Forensic Epidemiology, v. 3.0

3. Model Memorandum of Understanding for Joint Public Health-Law Enforcement Investigations

4. Coordinated Implementation of Community Response Measures to Control the Spread of Pandemic Respiratory Disease: A Guide for Developing an MOU for Public Health, Law Enforcement, Corrections, and the Judiciary

5. A Framework for Improving Cross-Sector Coordination for Emergency Preparedness and Response: Action Steps for Public Health, Law Enforcement, the Judiciary and Corrections

6. Public Health Law: A Judicial Reference Guide for Arizona Courts

7. Menu of Suggested Provisions for Public Health Mutual Aid Agreements and an Inventory of Mutual Aid Agreements and Related Resources

8. The Social Distancing Law Project Methodology

CDC’s PHLP invites you to visit our Web site, www.cdc.gov/phlp and explore ways in which each of these tools might be useful in your jurisdictions’ preparedness efforts!   

 

The National Economic and Social Rights Initiative announces the publication of its latest issue brief entitled: "Betraying an American Tradition: The Killing of Charity Hospital."  The issue brief examines the post Hurricane Katrina policy reasons for the closing of the second largest public hospital in the United States and details the adverse health impacts former patients of Charity Hospital have consequently suffered.  Moreover, the issue brief critiques the decision to close this vital institution and discusses the closing's human right to health and health care implications.  To access the issue brief, visit http://www.nesri.org/Killing_Charity_Hospital.pdf.

 

The George Washington University Department of Health Policy provided an updated analysis of new regulations affecting the methodology used by the federal government to prioritize the distribution of federal and state funds to under-served communities. Using more recent national data, the analysis found almost one-third of federally funded health centers were in jeopardy of losing priority funding. Based on such adverse effects to the safety net, the authors recommended withdrawal of the proposed rule. The brief, “Analysis of the Proposed Rule on Designation of Medically Under-Served Populations and Health Professional Shortage Areas,” is available at:
http://www.gwumc.edu/sphhs/departments/healthpolicy/chsrp/new_publications.c
fm
.

 

Wendy Mariner has published an article on public health surveillance: Mission Creep: Public Health Surveillance and Medical Privacy, 87 Boston University Law Review 347-395 (2007).

 

The Center for Health Policy at Columbia University has prepared a gap analysis for the New York State Bar Association’s Health Law Section, Public Health Committee, comparing the Model State Emergency Health Powers Act (MSEHPA) to existing New York State and New York City statutes and regulations related to public health emergency preparedness.  While not endorsing any specific reforms in public health law, this gap analysis analyzes the differences and facilitates comparisons between the MSEHPA and the two bodies of state and city law.  This gap analysis can be found at: http://www.nursing.columbia.edu/chphsr/projects/law/pdf/MSEHPAGapAnalysisTableBMM05-05-08.doc. 

Upcoming Events

European Public Health Law Network - Registration for Membership

The European Public Health Law Network www.ephln.org arises from the European Union co-funded PHLawFlu project. The Web site has been designed to facilitate the exchange of expertise on the use of law as a tool for public health protection and promotion across the European Union and beyond. Membership of the Web site is free, and open to anyone with a professional interest in public health law. We particularly welcome legal academics whose work involves public health, and public health professionals whose work involves issues of law. As a member of the Web site you will have access to a repository of public health legislative texts from around the world, more than 500 links to publications covering a broad spectrum of current public health issues, and the possibility of exchanging expertise and information with other members.

 

The first International Tobacco Control and Human Rights Meeting will be in Lausanne, Switzerland on August 1-2, 2008 to bring together experts from tobacco control human rights to develop a common working agenda of cross-cutting issues.  Many people involved with tobacco control already address many health and human rights issues but do it often without recognizing the very direct link to colleagues working in health and human rights environments.  This meeting will start the discussion, with the intent to more fully develop the relationship at the World Conference on Tobacco Control in Mumbai in 2009. (Information: carolyn_dresler@ksg03.harvard.edu)

 

Health Law at Boston University 50th Anniversary Celebration - From Forensic Medicine to Global Human Rights

Human Rights and Health - Wednesday, Sept. 24

Health Law: Past and Future - Thursday, Sept. 25

Election 2008 — A Health Reform Agenda - Friday, Sept. 26

Voices of Experience - Saturday, Sept. 27

Featuring distinguished experts in the field, including Boston University alumni and visiting scholars, and full-time health law faculty in the Schools of Law, Medicine and Public Health:  Professors George Annas, Leonard Glantz, Michael Grodin, Wendy Mariner, Fran Miller, Kevin Outterson, and Patricia Roche.

Free and open to the public

For program details, see www.sph.bu.edu/hi/events