© 2011 This material cannot be copied or reproduced without permission. Public Health Law: Improving Health Outcomes Marice Ashe, JD, MPH; Executive Director,
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© 2011This material cannot be copied or reproduced without permission.
Public Health Law: Improving Health Outcomes
Marice Ashe, JD, MPH; Executive Director, Public Health Law & Policy
Association of State & Territorial Public Health Nutrition Directors
June 13, 2011
© 2011
Public Health Law & Policy
We partner with state and local leaders to improve health in all communities, especially the underserved.
We do this by researching legal and policy questions, drafting policy language, and training community
leaders to put these ideas to work.
© 2011
Disclaimer
The information provided in this seminar is for informational purposes only, and does not constitute legal advice. Public Health Law & Policy does not enter into attorney-client relationships.
The primary purpose of this training is to address legal and/or policy options to improve public health. There is no intent to reflect a view on specific legislation. PHLP incorporates objective non-partisan analysis, study, and research in all our work.
What does the US Constitution have to
do with public health?
Land Use Redevelopment
Schools
Work in All Sectors
Transportation
Economic Development
Housing
LawEnforcement
Public Health
Hey Paul/CreativeCommons/Flickr
Clinton Steeds/CreativeCommons/Flickr
Dave_mcmt/CreativeCommons/Flickr
US Congress
Federalism and Police Power
State legislature
City Hall
Cooperative Federalism
Federal regulations incentivize
local action
Federal Government Can Prohibit or Preempt Action, too
PREEMPTION
…is the invalidation of local law by state law.
OR
…is the invalidation of state and local law by federal law.
www.flickr.com/photos/avlxyz/2523993770//
Types of Preemption
Ceiling Preemption
www.flickr.com/photos/johncarljohnson/153077991/
Floor Preempti
on
Individual Rights
and the
Common Good
Police Power
The powers not delegated to the
US by the Constitution, nor
prohibited to it by the States, are
reserved to the States respectively,
or to the people.
This is called the police power
Police Power
Police Power
The powers not delegated to the
US by the Constitution, nor
prohibited to it by the States, are
reserved to the States respectively,
or to the people.
This is called the police power
Police Power
Basic Requirements of Police Power
• Cannot be arbitrary or oppressive;
• Must be rationally related to public health, safety, or general welfare; and
• Must be reasonably designed to correct a condition adversely affecting the public good.
• Can not violate state and federal laws or constitutions
Examples
• Investigate infectious disease outbreaks
Image: http://sphtc.org/timeline/Mallon-Mary_01.jpge
Examples
• Investigate infectious disease outbreaks
• Ban cigarette samples near schools
Examples
• Investigate infectious disease outbreaks
• Ban cigarette samples near schools
• Zoning for farmers markets
Examples
• Investigate infectious disease outbreaks
• Ban cigarette samples near schools
• Zoning for farmers markets
• Require menu labeling
Public Health
Individual Rights
Constitutional Rights
1. Free Speech
2. Due Process
3. Equal Protection
Free Speech
Constitutional Right
Question
Why can’t government ban junk food billboards within 1,000 feet of urban schools – but can still ban junk food
advertisements in schools?
First Amendment
The government
“shall make no law . . . abridging the freedom of speech”
Regulating Products vs. Regulating Ads
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Commercial Speech Test
Key Question: Does the regulation prohibit a lot more speech than is necessary to address the problem?
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K – 12 Schools are Non-Public Forums
Advertising can generally be limited or prohibited without violating the First Amendment
Question
Why can’t government ban junk food billboards within 1,000 feet of urban schools – but can still ban junk food
advertisements in schools?
Answer
Under the commercial speech test, a ban on junk food advertisements near urban
schools is probably too broad.
A school is a non-public forum where the government has a lot of leeway to restrict
speech.
Requiring Point of Sale Health WarningsRequiring Point of Sale Health Warnings
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The Compelled Speech Test
• Reasonable relationship: Are the required factual disclosures reasonably related to the government’s interest in preventing consumer deception?– A warning has only indisputable facts
– Findings based on strong research
– Concluding that warning needed to protect health
– Consumers will be deceived if no warning
Questions?
Due Process
Constitutional Right
Question
Why is it easier for the government to regulate smoking in public, trans fats in
restaurants, and drunk driving than it is for the government to regulate contraception,
abortion, or consensual sex between adults of the same gender?
Due Process (5th and 14th Amendments)
The government cannot deprive individuals of life, liberty, or property without due process of law
Substantive Due Process
Does the government have an appropriate justification for depriving
someone of life, liberty, or property?
Fundamental LibertiesF
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Key Question:
Is the government action narrowly tailored or is it the least restrictive alternative to achieve a compelling goal?
Strict Scrutiny Test
Fundamental Liberties? No.
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Rational Basis Test
Key Question:Is the government action reasonably related to a legitimate government goal?
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Comparison
Individual’s interest is:
Government’s goal must be:
Fit between action and goal must be:
RATIONAL BASIS TEST
minimal legitimate reasonable
STRICT SCRUTINY TEST
fundamental compelling narrowly tailored or least restrictive alternative
Question
Why is it easier for the government to regulate smoking in public, trans fats in
restaurants, and drunk driving than it is for the government to regulate contraception,
abortion, or consensual sex between adults of the same gender?
Answer
Substantive due process requires that:
• a regulation of smoking, restaurants, or driving need only be reasonably related to a legitimate government goal
• a regulation of contraception, abortion, or same-sex intimacy must be narrowly tailored to achieve a compelling government goal
Questions?
Equal Protection
Constitutional Right
Question
Is it OK for the government to pass a law that imposes menu labeling requirements
on large chain restaurants but not on smaller chains or independents?
Equal Protection (5th & 14th Amendments)
The government shall not “deny to any person within its jurisdiction the equal protection of the laws”
Protected classifications
Strict Scrutiny Test
Key Question: Is the government action narrowly tailored to achieve a compelling government goal?
Non-protected classifications
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vs.vs.
Key question: Is the government action reasonably related to a legitimate government goal?
Rational Basis Test
Question
Is it OK for the government to pass a law that imposes menu labeling requirements
on large chain restaurants but not on smaller chains or independents?
Answer
Equal protection requires that:
A law that applies to bigger but not smaller businesses need only be reasonably related to
a legitimate government goal
510-302-3380
info@phlpnet.org www.phlpnet.org
Public Health Law & Policy
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