Populations, Public Health, and the Law

1. Public Health and the Population Perspective

C H A P T E R 1 Public Health and the Population Perspective The condition of perfect public health requires such laws and regulations, as will secure to man associated in society, the same sanitary enjoyments that he would have as an isolated individual. —Lemuel Shattuck et al., Report of the Sanitary Commission of Massachusetts, 1850 P ublic health issues are pervasive in the law. Every day in courtrooms throughout the United States, and indeed across the globe, courts hear cases that relate directly or indirectly to the public’s health. Judges in constitutional law cases ponder the state’s power to protect public health and the impact of that power on the rights of individuals. Administrative tribunals contemplate the meaning of statutes empowering them to regulate in the name of public health. Private parties contest the liability of individuals and firms that act in ways that endanger the health of others. Yet, despite the ubiquity of public health issues in law, surprisingly little attention has been paid to public health’s importance to law. Indeed, in field after field of American law, the centrality of public health issues has been overlooked by both courts and theorists. Cases are analyzed and decisions are made without a full appreciation of either the central role that public health has in the relevant legal field or the insights that public 5 6 chapter 1 health, as a field, may bring to the legal question at hand. As a result, law’s ability to serve as a positive force for public health is diminished. So, too, is legal discourse. This book seeks to remedy the law’s neglect of public health by offering an approach to legal analysis that I term population-based legal analysis. This approach affirms public health’s importance as an appropriate goal or value to law and incorporates the perspectives and methodologies of public health into legal analysis. Most critical, population-based legal analysis validates the importance of populations as both subjects and objects of law. As an approach to law, population-based legal analysis offers a powerful way of analyzing legal issues and critiquing contemporary legal discourse. It is not, however, and does not purport to be, either comprehensive or exclusive. It cannot resolve all legal issues or provide that elusive quest for determinacy. Nor do I claim that population-based legal analysis is the only appropriate way to think about and analyze legal questions . But I do claim and will demonstrate that it provides a valuable additional perspective on a wide range of legal issues. The chapters that follow develop population-based legal analysis and apply its insight to myriad legal questions. The legal fields explored raise issues important to public health, but my analysis is neither organized by nor limited to traditional areas of public health law. Although populationbased legal analysis is inspired by public health, and demonstrates public health’s centrality to law, it is not applicable solely to public health issues. Nor is it an exposition of public health law.1 Population-based legal analysis is instead an approach to legal reasoning that can be applied and offer insights to a wide range of legal issues. To appreciate population-based legal analysis, however, it is first essential to understand what is meant by public health and why it is important to social organization and the law. Likewise, it is critical to consider the insights and methodologies of public health that form the building blocks of population-based legal analysis. Most essential is understanding public health’s population perspective. This chapter reviews all these issues, thereby laying the groundwork for the subsequent discussion of population -based legal analysis. public health and the population perspective 7 The Myriad Meanings of Public Health Issues of public health abound. When an emerging infection such as human immunodeficiency virus (HIV) or pandemic influenza appears, we know it is a public health threat. Likewise, most, but not all, observers would agree that smoking is a public health problem. But what about domestic violence? Global warming? Obesity? Drug abuse? Are they public health problems? What does it mean to call them as such? Indeed, what is public health? Despite the frequent use of the term public health, the phrase is surprisingly difficult to define. According to The Oxford English Dictionary (OED) public health is ‘‘the health of the population as a whole, especially as...