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Health Law
Section Newsletter
Spring 2009

Message from the Chair

Welcome to the Spring 2009 issue of the Health Law Special Primary Interest Group Newsletter.

 

The last few months have been busy for those working in the field of public health law.  The biggest news, of course, was the emergence of, and response to, the novel H1N1 influenza virus, which required that international, national, state and local public health authorities draw upon emergency preparedness and public health lessons, policies and relationships developed over the past few years.  Another significant development was the recent set of decisions by the U.S. Court of Federal Claims in the Autism Proceedings, in which the Special Masters determined that the claimants failed to demonstrate that MMR vaccines and thimerosal in vaccines could cause autism.  And, of course, the health care insurance coverage debate continues on, with the Obama administration pushing for significant reform before the end of the year.

 

The Health Law SPIG has been quite busy as well.  We had a tremendous response to our Call for Abstracts for the 137th APHA Annual Meeting, which will take place Nov. 7-11, 2009 in Philadelphia.  With so many outstanding proposals getting submitted, we were able to expand the number of Health Law-organized panels by 40 percent over last year. In fact, the number of Health Law SPIG-organized panels has grown by 75 percent in the past five years, and we still had more proposals than we had available presentation slots.  Details about the panels appear below.  Thank you to everyone who submitted abstracts, to the many dedicated Health Law SPIG members who volunteered to serve as reviewers, and especially to Program Chair Heather McCabe for all the hard work she has done in putting together an exciting and diverse roster of Health Law presentations.  I look forward to a great meeting in November.

 

Health Law SPIG members are leading the way in shaping the growing field of public health law.  The last few years have seen important new public health law texts authored or co-authored by Health Law SPIG members including Public Health Law: Power, Duty, Restraint by Larry Gostin (now in its greatly expanded second edition); Public Health Law, co-authored by Wendy Mariner and George Annas; and Law in Public Health Practice, with contributions from numerous Health Law SPIG members.  The latest Health Law SPIG member to make such a critical contribution to defining the scope and philosophy of the field is Wendy Parmet, the George J. and Kathleen Waters Matthews Distinguished University Professor of Law at Northeastern University, whose new book, Populations, Public Health and the Law was recently published by Georgetown University Press.  Professor Parmet also is the author of this issue’s feature article, “Public Health Emergencies: A Population-Based Perspective,” which outlines her central thesis in light of the recent H1N1 outbreak.

 

In addition to the Annual Meeting panel information and Professor Parmet’s article, the newsletter features recent announcements, events, publications, and other news about Health Law SPIG members or of potential interest to the membership.  Thanks again to Ben Meier for his work as Health Law SPIG Newsletter editor, and congratulations to him on his new position (effective July 2009) as Assistant Professor of Global Health Policy at the University of North Carolina - Chapel Hill.  If you have questions, comments, critiques or observations about the Health Law SPIG, please do not hesitate to contact me at rsilverman@siumed.edu.

 

Be well,

 

Ross D. Silverman, JD, MPH

Chair, Health Law SPIG

Professor and Chair

Department of Medical Humanities

Southern Illinois University School of Medicine

rsilverman@siumed.edu

Health Law at the 2009 APHA Annual Meeting

Monday, Nov. 9, 2009

 

10:30 a.m.-12:00 p.m.

3132.3

Alcohol, Tobacco, Firearms, and Food: Reigning in the Big Four

 

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

3329.0

Regulation of Food Marketing to Children

 

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

3419.0

Global Health Governance

 

Tuesday, Nov. 10, 2009

 

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

4037.0

Water and Law

 

10:30 a.m.-12:00 p.m.

4105.3

Public Health Preparedness and the Law

 

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

4207.0

Health Disparities: Law and Policy

 

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

4372.0

Law and Public Health: Late Breaking Panel

Health Law in the News

Public Health Emergencies: A Population-Based Perspective

Wendy E. Parmet

 

George J. and Kathleen Waters Matthews Distinguished University Professor of Law

Northeastern University

Populations, Public Health, and the Law (Georgetown Univ. Press, 2009).

 

            In recent years, public health law has responded to an epidemic of public health crises.   In 2001 there was anthrax; in 2003 SARS, which was shortly followed by fears of avian influenza. Today there is Type A, H1N1 influenza.  In between there have been other outbreaks (West Nile) and disasters (Hurricane Katrina).  Each has triggered a wave of legal analysis, debate, and law reform.  As a result, public health law has come to focus largely on emergencies and the emergency powers that public health officials wield.

 

            Public health protection, however, requires a far broader array of public health tools and a far richer appreciation of public health law. During the current H1N1 outbreak, for example, officials quickly discovered that quarantine laws and border-closings could not contain the virus’s spread; rather they had to try to mitigate its impact.[i] To do so, they will need a public health law that looks beyond emergencies and adopts a broader perspective, integrating public health’s values, insights and methodologies into a wide range of laws that affect a community’s health. I call such an approach “population-based legal analysis.”[ii]  Rooted in the rich historic role that public health has played in American law, especially in the jurisprudence surrounding the states’ police power, population-based legal analysis utilizes public health’s population perspective to inform legal analysis and promote public health via law.

 

            The approach relies on three fundamental premises.  The first is that public health is an important legal norm, in effect a value, like equality and autonomy, that is internal to our legal system and which lawmakers can and should keep in mind as they render their decisions.  This does not mean that public health is the only or the highest value for law and should trump all other concerns. To the contrary, our legal system rightly recognizes a wide range of important values, such as respect for precedent and individual dignity, which also deserve deep fidelity.  But it does mean that legal decision-makers should generally consider the public health impact of their decisions.

 

            Second, the population perspective emphasizes the importance of populations.  To public health professionals, this seems obvious.  To lawyers, it is not.  American law (and culture) is characterized by its commitment to individualism.  As a result, the legal system often neglects the critical ways in which individual decisions, and risks, are influenced by population-wide factors.  Moreover, legal interventions frequently over-emphasize the responsibility or culpability of at-risk individuals, while slighting interventions that target broad populations. The population perspective corrects for this by emphasizing population-wide factors, including social determinants of health.  This perspective helps point to legal interventions that can have a broad and powerful impact (because they target conditions that affect many people), while discouraging laws that demonize or stigmatize individuals as if they were personally responsible for a broad public health problem. [iii]  In addition, the population perspective follows public health by recalling that humanity is comprised of multiple, overlapping, and varying populations.  Hence both public health professionals and lawyers are reminded to consider laws’ disparate impact on different populations. This means that broad claims of protecting “the public” must always be answered with “which groups are you referring to? Who are you leaving out?”

 

            The population perspective also borrows from public health’s reliance on epidemiology, empiricism, and probabilistic reasoning.  Eschewing bright lines and deductive reasoning, the population perspective insists that we consider a law’s impact “on the ground.” Laws that aim to protect public health, therefore, should be based, as much possible, on the best available scientific evidence.  But lawyers and judges also need to recognize that scientific evidence is often incomplete and changing.  Legal decisions must thus always be open to reassessment and reconsideration as the science changes.

 

            Perhaps most importantly, population-based legal analysis moves public health to the forefront of legal analysis in ordinary times. This is critical not only because most preventable illnesses and deaths arise from “ordinary” rather than “extraordinary” causes but also because a community’s ability to weather an emerging epidemic depends not only on the pathogen’s lethality but also the community’s preexisting health and resiliency.[iv]  Hence by focusing on how law can support health day in and day out, population-based legal analysis offers a critical legal tool for facing public health emergencies.

 

References



[i] Centers for Disease Control and Prevention, “Press Briefing Transcripts, CDC Media Availability on Swine Influenza Cases,” April 26, 2009.

[ii] For a fuller discussion, see Wendy E. Parmet, Populations, Public Health, and the Law (2009).

[iii] Wendy E. Parmet, Dangerous Perspectives: The Perils of Individualizing Public Health Problems, 30 J. Leg. Med. 83, 93-95 (2009).

[iv] Margaret Chan, World Health Organization, Power of Public Health Lies In Strong Public Health Systems (Mary 22, 2009), http://www.who.int/dg/speeches/2009/62nd_assembly_address_20090522/en/index.html; World Health Organization, Summary Report of a High Level Consultation, New Influenza A (H1N1), May 20, 2009, http://www.who.int/csr/resources/publications/swineflu/High_Level_Consultation_18_May_2009.pdf.

Institutional Changes

Arizona State University Sandra Day O’Connor College of Law is pleased to announce that James G. Hodge, Jr., JD, LLM, is joining the faculty as the Lincoln Professor of Health Law and Ethics on August l5, 2009.  Professor Hodge will also serve as a Faculty Fellow of the Center for Law, Science, and Technology at the College of Law and on the Professors Council of the Lincoln Center for Applied Ethics at the University.  His academic course work will include classes in health law and policy, public health law and ethics, and global health law and policy.

 

Jessica Berg was awarded the Health Policy Researcher of the Year Award from the Health Policy Institute of Ohio for her work on tax-exempt hospitals and the community benefit standard. She argues that community benefit activities should shift to focus on population health benefits, rather than primarily individual charity care. In addition, Ms. Berg received an MPH degree from Case Western Reserve University in May 2009, where she has been a professor of law and a professor of medicine since 1999.

 

Professor Lance Gable was named a member of Wayne State University Stem Cell Ethics Research Oversight Committee and a member of the Project Advisory Group for the Legal and Ethical Assessments Concerning Mental and Behavioral Health Preparedness Project, sponsored by the Centers for Disease Control and Prevention and the Preparedness and Emergency Response Research Center at the Johns Hopkins Bloomberg School of Public Health.

 

The Robert Wood Johnson Foundation has selected Temple University’s James E. Beasley School of Law in Philadelphia to manage a new program called Public Health Law Research. The program, directed by Temple law professor Scott Burris, JD, will fund research that explores legal and regulatory solutions to pressing health challenges such as infectious and chronic diseases, and health emergencies such as floods, bioterrorism and epidemics. Applications received through the first call for proposals are currently under review.  For more information, visit www.publichealthlawresearch.org.

 

The Robert Wood Johnson Foundation's Public Health Law Research  program has appointed APHA Health Law SPIG member Michelle Mello, JD, PhD, of Harvard University, to join a Methods Core that will advise the program on research topics and methodologies.  Other members of the Methods Core are Alexander C. Wagenaar, PhD, University of Florida College of Medicine; Jeffrey Swanson, PhD, Duke University School of Medicine; and Temple professors Jennifer K. Ibrahim, PhD, and Jennifer Wood, PhD.

 

Robert Field is moving to Drexel University, where he will be professor of law and professor of health management and policy.  He will be teaching in the Law School’s health law program and directing a JD/MPH program between the law and public health schools.

 

What does the First Amendment have to do with menu labeling? How can land use regulations promote farmers’ markets and community gardens? What liability considerations must be addressed when opening school playgrounds for neighborhood use? If your community wants to promote childhood obesity prevention through policy change, these are the kinds of questions the team at the National Policy and Legal Analysis Network to Prevent Childhood Obesity can help you answer. Visit www.nplanonline.org for information about our work and free materials. NPLAN is a new program funded by the Robert Wood Johnson Foundation.

 

Phyllis Borzi, JD, MA, research professor at George Washington University, was nominated by President Obama on March 25 to be Assistant Secretary of Labor for Employee Benefits Security.  EBSA, which is located in the Department of Labor, is responsible for educating and assisting the 150 million Americans covered by private retirement plans, health plans, and other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

 

Julianna S. Gonen, PhD, JD, has recently become Of Counsel to Benton Potter & Murdock, P.C., where she will focus on health care and general commercial litigation. Prior to joining BPM, Ms. Gonen was an Associate in the Health Care and Life Sciences practice at Epstein Becker & Green, P.C.  From 2004-2007, Ms. Gonen served on a task force of the American Health Lawyers Association that focused on legal preparedness for public health and other emergencies and published two guides for health care clients to assist in their legal emergency preparedness planning.

New Publications

APHA has created the Public Health CareerMart to be the online career resource center in the field of public health.  Here, you’ll find only qualified, industry professionals.

 

Job seekers, instead of searching through hundreds of sites looking for the perfect jobs in public health, you will find it all at the Public Health CareerMart, Career Development Center at www.apha.org/about/careers . 

 

Employers, instead of being inundated with stacks of unrelated, irrelevant resumes, you’re much more likely to find the candidates with the skills and experience you’re looking for — and spend less time doing it!  After all, where better to find the best public health professionals than the association that represents them?

 

Professor Edward P Richards, Professor of law and Director, Program in Law, Science, and Public Health at Louisiana State University Law Center, has just published the beta version of an online Public Health Law Map: http://biotech.law.lsu.edu/map/index.htm. The Map currently has about 1,000 pages of information. It will be updated and expanded through time, taking advantage of the online format to incorporate new information. The next version of the Map will also provide the information in PDF form for individuals who prefer a traditional printed format. This is a public service project and will be available free of charge.

 

Culminating a two-year Robert Wood Johnson Foundation study on the political processes of public health law reform, Benjamin Mason Meier, James G. Hodge, Jr., and Kristine M. Gebbie have summarized their conclusions in a new article in the American Journal of Public Health, “Transitions in State Public Health Law: Comparative Analysis of State Public Health Law Reform Efforts Following the Turning Point Model State Public Health Act” (http://www.ajph.org/cgi/content/full/99/3/423).  Building from prior articles in Public Health Reports and the Journal of Health Politics, Policy & Law, this article examines how the Turning Point Model State Public Health Act affects state public health laws, their reform, and subsequent changes in public health regulations, organizations, or programs.

 

The Tobacco Control Legal Consortium has released its latest publication in its series of overviews on key legal issues affecting the tobacco control community — Pick Your Poison: Responses to the Marketing and Sale of Flavored Tobacco Products.  This law synopsis explores legal approaches for addressing the marketing and sale of fruit-, alcohol- and candy-flavored tobacco products to youth.  The synopsis was written by Kathleen Dachille, a public health law attorney and professor, and director of the Legal Resource Center for Tobacco Regulation, Litigation and Advocacy at the University of Maryland School of Law.  The synopsis can be found online at http://tclconline.org/Tclc.asp.

 

Professor Lance Gable authored or co-authored three chapters in the recently released book "Research With High-Risk Populations: Balancing Science, Ethics, and Law." He is also an editor of the book along with David Buchanan and Celia B. Fisher. The book examines both the challenges of conducting research designed to responsibly gain a better understanding of the origins of serious health problems, and the moral and legal obligations of researchers who learn of threats of violence in the course of pursuing the primary objectives of the research.  He also published an article entitled "A Global Assessment of the Role of Law in the HIV/AIDS Pandemic" in the March 2009 issue of the journal Public Health with co-authors Lawrence O. Gostin and James G. Hodge, Jr. The article examines the dynamic role of law as a tool, and potential barrier, to public health interventions designed to ameliorate the negative impacts of HIV/AIDS globally.

 

In the past decade, many states have turned to providing care to low-income people with managed care through state public insurance or Medicaid programs.  The Community Service Society (CSS) is the first to examine this effort in the context of racial and ethnic disparities, and has released two briefs on the subject: Promoting Equity & Quality in New York’s Public Insurance Programs, and Promoting Equity & Coverage in New York’s Public Insurance Programs.   CSS makes recommendations on how New York can better leverage existing public resources to improve health equity through increased quality and retention in its public insurance programs. http://www.cssny.org/userimages/downloads/Promoting_Equity_May2009.pdf)

 

Boston University Schools of Public Health and Law have recently published George Annas, American Bioethics, Oxford University Press paperback edition (2009); Wendy Mariner, George Annas & Wendy Parmet, “Pandemic Preparedness: A Return to the Rule of Law,” 1 Drexel Law Review 341 (2009); Wendy Mariner, “Toward an Architecture of Health Law, “35 American Journal of Law & Medicine 67 (2009); Leonard Glantz & George Annas, “Handguns, Health, and the Second Amendment,” 360 New England Journal of Medicine 2360 (2009); and George Annas, “Globalized Clinical Trials and Informed Consent,” 360 New England Journal of Medicine 2050 (2009).

 

 

Upcoming Events

The Robert Wood Johnson Foundation is making new investments in public health law by developing a new program that will provide training, legal analyses, and technical assistance to state and local public health practitioners and their counsel and build the field of public health law.  The program will launch in late 2009. Concurrently, the Foundation will support a national conference on public health law in 2010, which will be planned and organized by the American Society of Law, Medicine and Ethics.

 

Boston University Schools of Public Health and Law will present a conference on “Electronic Health Records: Law and Policy” on Oct. 24, 2009. Their March 2009 Conference examined “Autism: Science, Law and Public Policy.”