© 2011 This 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 UseRedevelopment Schools Work in All Sectors Transportation Economic Development Housing Law Enforcement 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.

Types of Preemption Ceiling Preemption 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

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:

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_ _bobster855 Commercial Speech Test Key Question: Does the regulation prohibit a lot more speech than is necessary to address the problem?

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 Warnings

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 (5 th and 14 th 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 Liberties Flickr CC bestphoto Flickr CC Jenny Lee Silver

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 CC Simone_Ramella

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

Comparison Individual’s interest is: Government’s goal must be: Fit between action and goal must be: RATIONAL BASIS TEST minimallegitimatereasonable STRICT SCRUTINY TEST fundamentalcompellingnarrowly 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 (5 th & 14 th 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. AdamL212/CreativeCommons/Flickr daisybush/CreativeCommons/Flickr 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

Public Health Law & Policy