Thinking Clearly About Public
Health Law
American Association of Public Health
Physicians
APHA Annual Meeting
San Francisco, November 2003
http://biotech.law.lsu.edu/cphl/Talks.htm
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 70803-1000
richards@lsu.edu
http://biotech.law.lsu.edu
Phone: 225/578-7595
Fax: 225/578-5935
Déjà Vu All Over Again
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2000 Meeting in Boston
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Future of Public Health Law
Debate between Richards and Gostin
My Themes
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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
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Post 9/11 2003
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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
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Tested by the courts
Allows agency flexibility
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What is Wrong with the
MSEHPA?
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Flexibility
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Consistency
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It is much too detailed
It ignores the entire matrix of related
state laws
Integration
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Crisis management must be an extension
of day-to-day practices, not a special set
of laws that sit on the shelf
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What is the Alternative?
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Approach Public Health Law as Administrative Law
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Core Administrative Law Values
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The United States Supreme Court does
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
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Law is Not the Problem For
Bioterrorism and Epidemics
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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
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What is the Real Problem?
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Lack of Resources
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People
Expertise
Equipment
Lack of Political Will
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If you do your job, you get fired
After a while you either get gun-shy or get out
of public health
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The Example of Bad Plans
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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
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