© 2011 This material cannot be copied or reproduced without permission. Public Health Law: Improving Health Outcomes Marice Ashe, JD, MPH; Executive Director,

© 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

FlickrCC_3733115397_bobster855

Commercial Speech Test

Key Question: Does the regulation prohibit a lot more speech than is necessary to address the problem?

htt

p:/

/ww

w.f

lickr

.co

m/p

ho

tos/

13

80

28

39

@N

05

/32

01

34

16

79

/

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

ww

w.d

isea

sepr

oof.

com

/AF

Psm

oke.

jpg

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

lickr CC

bestphotoF

lickr CC

Jenny Lee Silver

http://ww

w.m

yweddingfavorsetc.com

/product/CR

+707552.htm

l

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.

Flickr C

C Sim

one_Ramella

Rational Basis Test

Key Question:Is the government action reasonably related to a legitimate government goal?

http

://fa

rm2.

stat

ic.fl

ickr

.com

/110

3/53

7788

851_

f0b1

3b75

28.jp

g

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

vs.vs.

AdamL212/CreativeCommons/Flickr daisybush/CreativeCommons/Flickr

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

[email protected] www.phlpnet.org

Public Health Law & Policy