Thinking Clearly About Public Health Law American Association of Public Health Physicians APHA Annual Meeting San Francisco, November

Edward P. Richards, JD, MPH Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University Law Center Baton Rouge, LA Phone: 225/ Fax: 225/

3 Déjà Vu All Over Again 2000 Meeting in Boston Future of Public Health Law Debate between Richards and Gostin My Themes Public health law has lost sight of the its police power origins Public health law must have strong enforcement roots Old laws and powers are important, do not give them up for new individual liberties laws

4 Post 9/ Professor Gostin wrote the Model State Emergency Health Powers Act I am in the same place, with the same argument - keep traditional core powers and laws Tested by the courts Allows agency flexibility

5 What is Wrong with the MSEHPA? Flexibility It is much too detailed Consistency It ignores the entire matrix of related state laws Integration Crisis management must be an extension of day-to-day practices, not a special set of laws that sit on the shelf

6 What is the Alternative? Approach Public Health Law as Administrative Law The United States Supreme Court does Core Administrative Law Values Judicial Respect for Agency Expertise Broad powers to Act with general grant of authority General laws allow flexibility in a crisis The MSEPHPA and Most Public Health Law Scholarship and Teaching Ignores Administrative Law Jurisprudence

7 Law is Not the Problem For Bioterrorism and Epidemics Law is mostly irreverent to public health crisis management, unless it gets in the way with too many restrictions Judges do not stop emergency actions MSEHPA will get in the way

8 What is the Real Problem? Lack of Resources People Expertise Equipment Lack of Political Will If you do your job, you get fired After a while you either get gun-shy or get out of public health

9 The Example of Bad Plans Every health department in the US is part of detailed bioterrorism plans or SARS plans that are impossible to carry out The feds fund plans, not the resources to carry them out The police are in the same position No one wants to hear no, we cannot do that, so we accept impossible plans