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date: 29 November 2020

The Intersection of Law, Ethics, and Public Health in the United States

Abstract and Keywords

Law has played a critical role in the great public health achievements of the past century, including vaccination, seat belt use, water fluoridation, and tobacco control. Law continues to be an important tool in this century’s efforts to improve the public’s health, including efforts to prevent chronic illnesses related to obesity. Public health law specifies what must be done or what cannot be done, or law may authorize an array of options regarding what actions are permissible to improve the public’s health. Public health ethics can provide a structure for determining which of the permissible actions authorized by law should be taken. This chapter explores public health law, including its sources and its limits, as well as the relationship between public health law and ethics.

Keywords: public health law, law, communicable disease, chronic illness, vaccination, tobacco, seat belts, obesity, public health ethics

(p. 89) An Introduction to Public Health Law

The US Centers for Disease Control and Prevention’s list of the “10 Great Public Health Achievements, 1900–1999” highlights the law’s role in improving public health (CDC, 1999). Laws that, for example, mandated childhood vaccination, seat belt use, and municipal water fluoridation, and those that regulated workplace safety and inspection, made these achievements realizable (Moulton, Goodman, and Parmet, 2007). As these public health efforts continue and new public health challenges arise, law remains an important public health tool. This chapter explores public health law, including its sources and its limits, as well as its relationship with public health ethics from the US perspective.

Defining Public Health Law

Lawrence Gostin (2008, 4), a leading public health law scholar, defines public health law as “the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to ensure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population), and of the limitations on the power of the state to constrain for the common good the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals.”

(p. 90) A 2011 Institute of Medicine (IOM) report divides public health law into three categories: (1) laws establishing public health systems’ infrastructure and authority, (2) laws designed to improve specific health outcomes, and (3) laws with an incidental public health effect (IOM, 2011; Moulton et al., 2003). The latter two may involve government entities beyond public health departments. For example, public health strongly supports mandatory seat belt use laws because seat belt use demonstrably saves lives in motor vehicle crashes, but authority over those laws may rest with state transportation departments. At the same time, the federal government may influence states’ adoption of these laws through the conditions it imposes on highway fund distributions. These three categories are focused on government. While other stakeholders, such as research entities, nonprofits, and grassroots organizations, play important roles in advancing public health, the authority and extent of government action, balanced against individual rights, is the hallmark of public health law.

Health Care Law Compared to Public Health Law

Health care law and public health law are distinct but complementary fields. Legal issues common in health care delivery focus on the individual patient and on physician obligations to their patients; in contrast, public health law emphasizes population health (Tobey, 1926). To illustrate these different perspectives, imagine that an automobile driver is injured in a crash while not wearing a seat belt. Health care law is concerned with treating the driver’s injuries. The Emergency Medical Treatment and Active Labor Act (42 U.S.C. § 1395dd) requires the driver be evaluated and provided with emergency medical care, even if uninsured. In contrast, public health law concentrates on avoiding these kinds of injuries through laws that require seat belt use and fining people for failing to comply.

Using Law as a Tool to Improve Health

Public health laws can be directed at individuals, entities, or environments to promote change through education, incentives, or deterrence, or they can alter the physical, informational, or business environment. They can be characterized by the public health framework of primary, secondary, and tertiary interventions.1 Primary legal interventions include efforts designed to prevent illness or injury, such as mandating vaccination before school entry to control vaccine-preventable diseases (CDC, 2016c; Yang and Silverman, 2015).

Secondary legal interventions are intended to identify public health problems at an early stage to minimize their negative effects. For example, mandatory newborn blood testing seeks to identify infants with rare genetic, endocrine, or metabolic diseases, such as phenylketonuria, and to intervene to prevent death or mitigate disability (Network for Public Health Law, 2016).

Tertiary legal interventions are employed to reduce or remediate harm from illness or injury that has occurred. Examples include state laws that grant immunity from drug (p. 91) charges to opioid users who seek medical assistance for themselves or others experiencing an overdose (Public Health Law Research LawAtlas, 2016a), or laws that authorize first responders to administer naloxone to treat an overdose (Public Health Law Research LawAtlas, 2016b). Neither intervention addresses the underlying addiction, but both may prevent overdose deaths.

Government public health actions may be coercive. The government can mandate behavior that benefits population health, and it can penalize—through fines or imprisonment—individuals not willing to comply voluntarily. Examples include mandatory childhood vaccinations as a condition of school attendance, involuntary detention of people with certain infectious diseases, closure of restaurants with poor sanitation, and destruction of property that poses a toxic hazard. Government action may also incentivize decisions that promote public health. For example, federal and state governments tax cigarettes to discourage smoking. Similarly, the federal government conditions highway funds on states’ laws regarding the legal drinking age to prevent injuries from automobile crashes.

Following substantial success with controlling infectious disease, public health began to set loftier goals, as reflected in the IOM’s 1988 definition: “Public health is what we, as a society, do collectively to assure the conditions for people to be healthy” (IOM, 1988, 1). There has been a corresponding expansion of public health law to areas such as injury prevention and chronic disease. Moreover, public health law has explicitly embraced social justice as a goal. Gostin’s public health law definition reflects this aspect, stating that “the prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice” (Gostin, 2008, 4). Public health laws that seek to ameliorate inequities include zoning laws that limit the density of fast food restaurants and tax incentives to open grocery stores in low-income neighborhoods to expand healthy food choices for low-income families.

Sources and Scope of Public Health Law in the United States

In the United States, legal authority for public health action is generally derived from the following sources: federal and state constitutions, statutes, regulations, court decisions, and executive orders.

Which government entity has the authority to act depends on the power division between and within the federal and state governments. The federal government is separated into the executive, legislative, and judiciary branches, each with distinct authority and roles. The structure is designed to provide checks and balances among the branches of government. The president and his or her cabinet and agencies make up the executive branch, which enforces the law and further implements it by issuing executive orders and promulgating regulations. Congress (the Senate and House of Representatives) forms the legislative branch, which enacts legislation and authorizes funding. The judicial branch, comprising the Supreme Court and appellate and trial courts, is charged with interpreting the law and resolving disputes. Most states mimic this structure, with a governor leading the executive branch.

(p. 92) The federal government’s authority is limited to the “enumerated powers” explicitly granted to it in the US Constitution. The Constitution does not directly reference public health, and the federal government affects public health through its constitutional authority to tax and spend and to regulate interstate commerce (U.S. Const. Art. I, § VIII, Cl. 1.). All powers not explicitly given to the federal government are reserved to the states under the Tenth Amendment. Accordingly, states typically have broader authority to adopt laws to protect their citizen’s health, safety, and welfare. These “police powers” permit state governments to restrict liberty to promote the public good.

Preemption also plays an important role in distributing power between governments (Hodge and Corbett, 2016). There are many complexities to preemption law, but, in general, it provides that a higher level of government’s law may restrict a lower authority from acting on the same issue. Thus, federal laws can restrict state and local government actions, and state laws can restrict local government action (CDC, 2016b). The higher government may set a minimum standard (e.g., clean air standards) that must be met, but permit lower governments to adopt stricter standards (floor preemption). The higher government may set a standard, but not permit adoption of stricter standards (ceiling preemption). Sometimes a higher level of government does not set a standard but still prevents the lower level of government from acting (null preemption) (ChangeLab Solutions, 2013). Ceiling and null preemption generally take away local control and limit community innovation to address their needs.

Governments’ broad power to protect the public health is not unlimited. The US Supreme Court’s seminal 1905 decision in Jacobson v. Massachusetts (197 U.S. 11 [1905], hereafter Jacobson) supports state public health authority, while simultaneously requiring substantial justification to infringe on individual liberty interests. Henning Jacobson refused to be vaccinated against smallpox, as ordered by the Cambridge Board of Health and authorized by Massachusetts law, despite an ongoing epidemic and an effective vaccine (Jacobson, 13). The court upheld the state’s authority to mandate vaccination because (1) the serious threat of the smallpox epidemic created a public health necessity, (2) vaccination was a reasonable means to address the public health threat, and (3) the personal risk of vaccination was proportional to the threat posed by the disease (Jacobson, 27–28, 31, 38–39). The court also required the state to exempt people, such as the very sick or very young, for whom the risks of vaccination could be particularly dangerous (Jacobson, 29). The court also affirmed the delegation of state public health authority to local government and deferred to health officials’ determinations, a practice that has continued (Jacobson, 25, 27).

The principles enunciated in Jacobson remain at the heart of many public health law questions (Mariner, Annas, and Glantz, 2005; Gostin, 2005). Public health laws may implicate constitutionally protected interests—from the privacy (bodily integrity) interests at issue in Jacobson to First Amendment rights of free speech, freedom of assembly, and religion; to economic interests; to Fifth and Fourteenth Amendment rights to due process and equal protection. At this level, the law reflects the nation’s most important values and may draw on ethical principles and theories. Supreme Court Justice Oliver Wendell Holmes Jr. described the law as the “external deposit of our (p. 93) moral life” (Holmes, 1897).2 Accordingly, as Jacobson illustrates, courts will require strong justification when public health laws infringe upon constitutionally protected interests.

The Interplay between Law and Ethics

Law establishes boundaries for what must be done (e.g., mandatory disease reporting) and what cannot be done (e.g., smoking in public spaces). But often it identifies a range of permissible actions, sometimes explicitly and sometimes by interpretation of existing law (CDC and NACCHO, 2012).3

When several legal options are permissible, public health ethics can help identify the most appropriate option (CDC and NACCHO, 2012). For example, during an emergency, laws may authorize the distribution of finite resources, but ethics can help determine who receives them first, such as medical professionals, first responders, and those who are most vulnerable.

Ethical and legal analyses are similar, as they both involve a deliberate consideration and articulation of facts, questions, and areas of conflict; an exploration of available options; a decision; and the reasons for the decision. This deliberative process helps in clarifying and justifying decisions, and its transparency can lead to an acceptance of decisions, even when there is disagreement about the outcome. When dilemmas impact constitutionally protected interests, the arguments in law or ethics are likely to be similar, although the specific terms used (e.g., “rights”) may differ. But it is also important to remember that law and ethics are different disciplines with different goals (Wolf, 2004).

Although the law can reflect our moral commitments, it may sometimes conflict with them. For example, the US Constitution originally allowed states to count a slave as three-fifths of a person for purposes of representation, and it was many years before blacks and, even later, women were given the right to vote. But even these constitutional rights fell short. During the civil rights movement, many individuals took personal risks to challenge laws that permitted continued legal discrimination against blacks. Their voices and actions served as an impetus for change, both in the law and its enforcement. Accordingly, knowing what the law says is only a starting point. It is important to question the underlying assumptions for any specific law, how it is used and enforced, and whom it impacts, as well as to amend laws, when necessary, to achieve ethical goals.

Public Health Law in Action

This section will illustrate how public health law works in specific examples. The examples of infectious disease, tobacco control, and obesity demonstrate the evolution of public health law and the challenges presented when the traditional justification for public health law—avoiding harm to others—is not clear.

(p. 94) Control of Infectious Diseases

There is a centuries-long history of governments around the world enacting laws to protect their citizenry and their states from infectious diseases such as smallpox, black plague, yellow fever, and cholera (Rothstein, 2015). These laws support quarantine, isolation, limits on travel, and other social distancing measures (CDC and Association of State and Territorial Health Officials, 2010),4 as well as vaccination and sanitation requirements. These are, as the Supreme Court explained in Jacobson, among the “manifold restraints to which every person is necessarily subject for the common good” (Jacobson, 26). States traditionally exercise this authority under their police powers, with the federal government having authority for persons entering the United States or crossing state lines.5

Tuberculosis (TB), a bacterial disease that usually attacks the lungs, is easily spread to others by air. A person who is infected but not experiencing symptoms has latent TB and is not contagious. However, if not properly treated, latent TB can develop into active TB—especially among those with weaker immune systems—which may be transmitted to other people (CDC, 2015g). Failure to complete treatment can lead to a recurring illness or even drug-resistant TB, which is transmissible. Antibiotic treatment often lasts at least six months and may last up to two years for drug-resistant TB (CDC, 2015h).

The majority of patients diagnosed with TB voluntarily agree to antibiotic treatment. However, some may resist, and some may be unable to comply with treatment. A patient usually has the right to refuse treatment for an illness. However, because TB—particularly drug-resistant TB—presents risks to others, public health officials may order directly observed therapy (DOT), which involves a public health representative or authorized family member observing the patient take the medication so that no dose is missed. Public health authorities may also compel treatment or isolate the patient when a patient fails to complete treatment, as specifically authorized by state statute or presumed under the state’s police powers. This power may be delegated to local government (CDC and Centers for Law and the Public’s Health, 2009, 16–17, 21–25).

City of Milwaukee v. Washington (304 Wis. 2d 98 [S. Ct. Wisc. 2007], hereafter Milwaukee) is illustrative. After Ruby Washington’s initial TB diagnosis in June 2005, the city health department assigned her to DOT because she lived in a homeless shelter and had other risk factors for noncompliance. The clinic provided Washington with bus passes to facilitate her travel to the clinic to take her medication under observation; however, she did not comply and could not be located. In August she was held involuntarily for one month for TB treatment after giving birth in a hospital. She was released on condition that she stay at her sister’s house and participate in treatment, but again she disappeared. When she was relocated, she was arrested, mistakenly released, and rearrested. At that point the health department ordered her jailed to complete her treatment (Milwaukee, 104–109). The court upheld the order because of her repeated failures to complete treatment, which put the community at risk of infection (Milwaukee, 117, 134). The court also upheld the decision to confine Washington to jail, rather than a hospital, because both institutions could provide equivalent medical care and enforce (p. 95) the isolation, but the cost to taxpayers for confining her to a hospital room under guard was significantly higher (Milwaukee, 131). This last point illustrates that the law does not require the best response, merely a reasonable one. Thus, what may be legally acceptable may not be ethically preferable.

Although Milwaukee may be a more extreme example, courts routinely uphold the use of infectious disease control measures like isolation and quarantine. However, such measures are not appropriate for diseases that are less easily transmitted, like HIV/AIDS, although some called for such restrictions early in the epidemic. Because HIV is not transmitted through casual contact and there were effective means to prevent transmission (e.g., universal precautions and safer sex), quarantine and isolation would infringe too greatly on individual autonomy when balanced against the threat to the public’s health, as required by Jacobson. However, the HIV/AIDS experience and the more recent Ebola outbreak (WHO, 2015) serve as reminders that misunderstandings and fear can lead to misuses of public health powers (Weiser and Goodman, 2014; Hickox, 2015).

The 2014–2016 outbreak of Ebola in West Africa fanned fears that the fatal disease would spread to the United States. After a Liberian man was diagnosed with the disease upon returning to Dallas, Texas, and died, some states decided to quarantine health care workers and other travelers returning from West Africa. In some places, children of returned workers were required to stay home from school (Gatter, 2014). In most of these cases, these responses were overly restrictive, not based on science, and may have been unconstitutional when applying the balancing test outlined in Jacobson and considering principles of due process. They also conflicted with CDC guidance for responding to suspected cases of Ebola (which was modified during the epidemic), but the guidance was not legally binding on states (CDC, 2016a). In contrast, some states used less restrictive options, such as asking returning health care workers to monitor and report their temperatures to public health officials (Hodge, 2015).

Public health officials often have to act with incomplete information. They may come to different conclusions than their counterparts in other states. However, as the Ebola epidemic response suggests, it is critical that government and public health officials exercise their authority wisely and implement restrictions equally and fairly, based on the best available scientific evidence. Inconsistency and overzealous approaches can undermine public trust and ultimately compromise public health efforts.


Whereas a century ago communicable diseases such as influenza and TB were the leading causes of death, chronic diseases, including heart disease and cancer, now account for 48 percent of all US deaths and represent seven of the top ten leading causes of death (CDC, 2015c). Laws responding to these public health threats may require different justifications than those used in the infectious disease context. Legal responses to the public health effects of tobacco use illustrate the challenges faced when the traditional justification of protecting harm to others is more attenuated.

(p. 96) Over fifty years ago, the Surgeon General issued a report confirming that smoking is hazardous to health (US Department of Health, Education, and Welfare, 1964; HHS, 2014). Smoking now accounts for nearly one-fifth of US deaths annually. Lung cancer is the leading cause of US cancer deaths, and yet it is the most preventable, with smoking responsible for 90 percent of lung cancer cases in men and 80 percent in women (CDC, 2015d). Other adverse health effects attributable to smoking include other cancers, stroke, aneurysm, diabetes, and pulmonary diseases (CDC, 2015d). However, until the 2009 enactment of the Family Smoking Prevention and Tobacco Control Act (21 U.S.C. § 387), the federal Food and Drug Administration had no authority to regulate tobacco products. Accordingly, public health authorities have relied on other legal tools to protect the public from the health effects of cigarettes and other tobacco products.

Public health efforts first focused on reducing nonsmokers’ exposure to secondhand smoke. Secondhand smoke exposure causes similar negative health effects in nonsmokers as in smokers and accounts for over 41,000 deaths annually from heart disease and lung cancer alone (CDC, 2015d; CDC, 2015e). Beginning in the 1970s, in response to accumulating evidence of these negative health effects, cities (CDC, 2012; Diller, 2014) and states (CDC, 2015f; American Lung Association, 2015) began adopting laws limiting and ultimately prohibiting indoor smoking in public spaces such as schools, health care facilities, restaurants, airports, and government offices, in an effort to protect employees and patrons who could not avoid secondhand smoke. The federal government similarly adopted smoke-free regulations for facilities it controls (41 C.F.R. § 102–74.315 [2008]). Lawsuits arguing for smokers’ rights have been unsuccessful, as courts have held that smokers can, for example, eat in a smoke-free restaurant, while nonsmokers cannot eat and avoid secondhand smoke exposure if the restaurant were not smoke-free. As of 2015, twenty-seven states have adopted comprehensive clean indoor air laws, and local ordinances exist in some communities without state laws or where they may adopt stricter laws (Tynan et al., 2016; Tobacco Control Legal Consortium, 2014). However, significant gaps remain: about half the US population is not covered by comprehensive clean air laws, and laws may contain exemptions, such as bars and restaurants serving only adult patrons (Tynan et al., 2016).

More recent efforts seek to prohibit smoking in outdoor public places (CDC and NACCHO, 2012; Americans for Nonsmokers’ Rights, 2015). There is some evidence that outdoor secondhand smoke at restaurant patios and porches, public parks, and beaches can negatively impact nonsmokers, but it is weaker than the evidence documenting the health hazards of indoor secondhand smoke exposure (Colgrove, Bayer, and Bachynski, 2011). Accordingly, other arguments, such as the pollution of water and soil and accidental fires caused by cigarette butts, have been used to support these efforts. Nevertheless, without strong evidence that outdoor exposure poses significant harm, there has been resistance to these efforts, which would further restrict individuals’ ability to engage in a legal activity. Efforts to prohibit smoking in private spaces, such as apartments and cars with children in them, have similarly met resistance as unduly infringing on individual liberty, despite some evidence that secondhand smoke can affect people in adjacent apartments (King, Peck, and Babb, 2014). In 2015 the US Department of Housing and Urban (p. 97) Development announced a proposed rule to require all public housing to implement smoke-free policies (Instituting Smoke-Free Public Housing, 80 FR 71762). Such bans could disproportionately affect low-income people who have fewer housing choices.

Other legal tools have been used to address the health effects of smoking. Efforts to prevent children from becoming smokers include conditioning federal funds on the adoption of state laws that prohibit the sale or distribution of products to youth under age eighteen and require inspections of sales outlets for compliance (42 U.S.C.A. § 300x-26 [1992]; SAMHSA, 2015). In addition, states attorneys general brought lawsuits against the major tobacco companies to compensate for Medicaid costs associated with smoking, resulting in the 1998 Master Settlement Agreement, with substantial payments to participating states and limitations on advertising, particularly toward children.6


Obesity rates more than doubled between 1980 and 2006, and now almost 35 percent of American adults and 17 percent of children are considered obese (Trust for America’s Health, 2015). Leading causes of preventable death for adults associated with obesity include heart disease, stroke, type 2 diabetes, and certain cancers (CDC, 2015a). Obese children may experience adult diseases such as type 2 diabetes, heart disease, and sleep apnea; suffer from low self-esteem and depression; and experience difficulty in school (CDC, 2015b).

A number of public health actions have been taken in the fight against obesity. Twenty states impose higher taxes (known as “sin” taxes because of their use to limit tobacco and alcohol consumption) on soda or other sugary drinks than on general groceries; thirty states tax sodas and sugary drinks in vending machines at a rate higher than for general groceries (Bridging the Gap, 2016). The cities of Berkeley, California, and Philadelphia, Pennsylvania, have also imposed additional taxes on sodas (Sahadi and Smith, 2016). Arizona has banned all vending machines from school (Ryan et al., 2006), and federal regulations limit school vending machines to healthy options (7 C.F.R. § 210.11). Some cities and states required calorie counts on menus (Hodge et al., 20112012; National Council of State Legislatures, 2016), a local innovation that was incorporated into the federal Patient Protection and Affordable Care Act (Pub. L. No. 111-148, 124 Stat. 119 [2010]), in addition to the menu and labeling requirements of the Food and Drug Administration (FDA, 2016). Recent research demonstrates that the public supports initiatives aimed at obesity that provide information and help promote healthier environments and options, such as menu labeling, but is less supportive of actions that restrict choice (Morain and Mello, 2013).

This resistance was evident in the public reaction to the New York City health department’s 2012 “Portion Cap Rule,” which the media and public viewed as coercive (Pratt, 2015). The rule limited the size of sodas sold in restaurants, movie theaters, food carts, and stadiums to less than 16 ounces. Negative references to the “nanny state,” meaning the state’s judgment being substituted for individual choice, were common, although (p. 98) under the law consumers could still purchase multiple drinks, and some locations, like convenient stores, were excluded (Harned, 2013). Despite data showing that sugary drink consumption contributes to being overweight, diabetes, and heart disease, the public reacted negatively to these limits on what they perceived as purely self-regarding behavior (New York Times, 2013). In Matter of New York Statewide Coalition of Hispanic Chamber of Commerce v. New York City Department of Health and Mental Hygiene (23 N.Y. 3d 681, 690 [2014]), the court reviewing the rule held the department’s adoption of the rule overstepped its regulatory authority, because the elected City Council had not addressed the issue. Although in dicta, the court also noted that the law infringed on personal autonomy, had numerous exceptions undermining its potential public health effectiveness, and could negatively impact business.

The New York City ruling highlights the challenges of public health law approaches to preventing obesity and related chronic diseases. Taking a lesson from tobacco, efforts focusing on children, such as promoting nutrition in schools and increasing opportunities for physical activity, may be more successful than limiting adults’ choices (Ashe et al., 2009). Laws that change the physical environment to promote physical exercise, provide access to healthy foods, and limit fast foods, such as through zoning, may also receive more support (Ashe et al., 2009). Evidence of economic burden could provide a potential justification for public health law action. In 2008, the medical costs of treating obesity-related diseases were estimated at $147 billion, roughly twice as much as only ten years earlier (Trust for America’s Health, 2015). Also, as with tobacco, restrictions may become more acceptable to the public and courts as they become more used to public health efforts at reducing obesity and obesity-related diseases.


As this chapter demonstrates, governments have substantial legal authority to act to improve public health. Traditional powers are coercive and may infringe significantly on individual rights. However, that authority is limited, requires strong justification, and must limit infringement on individual rights. As society confronts public health issues that may not directly harm others, new approaches may be necessary, and public health officials may need to consider the full range of legal options available to them. Public health ethics can be useful in deciding among legal options and whether to exercise legal authority.


Americans for Nonsmokers’ Rights. 2015. U.S. Tobacco Control Laws Database.

American Lung Association. 2015. “State of Tobacco Control: Did Your State Make the Grade?” Accessed December 26.

Ashe, M., Bennett, G., Economos, C., Goodman, E., Schilling, J., Quintillani, L., et al. 2009. “Assessing Coordination of Legal-Based Efforts across Jurisdictions and Sectors for Obesity Control.” Journal of Law, Medicine & Ethics 37(Suppl. 1): 45–54.Find this resource:

Bridging the Gap. 2016. “Beverage and Snack Taxes.”

CDC (Centers for Disease Control and Prevention). 1999. “10 Great Public Health Achievements—United States, 1900–1999.” Morbidity and Mortality Weekly Report 48: 241–243. this resource:

CDC (Centers for Disease Control and Prevention). 2012. “Comprehensive Smoke-Free Laws—50 Largest US Cities, 2000 and 2012.” Morbidity and Mortality Weekly Report 61: 914–915.Find this resource:

CDC (Centers for Disease Control and Prevention). 2015a. “Adult Obesity Causes and Consequences.”

(p. 100) CDC (Centers for Disease Control and Prevention). 2015b. “Childhood Obesity Causes and Consequences.”

CDC (Centers for Disease Control and Prevention). 2015c. “Chronic Disease Prevention and Health Promotion: Chronic Disease Overview.”

CDC (Centers for Disease Control and Prevention). 2015d. “Smoking and Tobacco Use: Health Effects of Cigarette Smoking.”

CDC (Centers for Disease Control and Prevention). 2015e. “Smoking and Tobacco Use: Health Effects of Secondhand Smoke.”

CDC (Centers for Disease Control and Prevention). 2015f. “State Tobacco Activities Tracking and Evaluation (STATE) System.”

CDC (Centers for Disease Control and Prevention). 2015g. “Tuberculosis (TB): Basic TB Facts.” Accessed December 22.

CDC (Centers for Disease Control and Prevention). 2015h. “Tuberculosis (TB): Treatment.” Accessed December 22.

CDC (Centers for Disease Control and Prevention). 2016a. “Notes on the Interim US Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure.”

CDC (Centers for Disease Control and Prevention). 2016b. “Preemption of Local Public Health Laws.”

CDC (Centers for Disease Control and Prevention). 2016c. “State School and Childcare Vaccination Laws.”

CDC (Centers for Disease Control and Prevention) and Association of State and Territorial Health Officials. 2010. Social Distancing Law Assessment Project. this resource:

CDC (Centers for Disease Control and Prevention) and Centers for Law and the Public’s Health. 2009. Tuberculosis Control Laws and Policies: A Handbook for Public Health and Legal Practitioners. this resource:

CDC (Centers for Disease Control and Prevention) and NACCHO (National Association of County and City Health Officials). 2012. “Facilitator’s Manual.” In Good Decision Making in Real Time: Public Health Ethics Training for Local Health Departments. Facilitator’s Manual available upon request, student materials available online. this resource:

ChangeLab Solutions. 2013. “Preemption and Public Health Advocacy: A Frequent Concern with Far-Reaching Consequences.”

Colgrove, J., Bayer, R., and Bachynski, K. E. 2011. “No Where Left to Hide? The Banishment of Smoking from Public Places.” New England Journal of Medicine 364: 2375–2377.Find this resource:

Diller, P. A. 2014. “Why Do Cities Innovate in Public Health? Implications of Scale and Structure.” Washington University Law Review 91: 1219–1292.Find this resource:

FDA (Food and Drug Administration). 2016. “Menu and Vending Machines Labeling Requirements.”

(p. 101) Gatter, R. 2014. “Science over Fear Is the Lesson of Nurse’s Ebola Story.” New York: Network for Public Health Law, December 14. Accessed December 23, 2015.

Gostin, L. O. 2005. “Jacobson v. Massachusetts at 100 Years: Police Powers and Civil Liberties in Tension.” American Journal of Public Health 95: 576–581.Find this resource:

Gostin, L. O. 2008. Public Health Law: Power, Duty, Restraint (Berkeley: University of California Press).Find this resource:

Harned, K. 2013. “The Michael Bloomberg Nanny State: A Cautionary Tale.” Forbes, May 10. this resource:

HHS (US Department of Health and Human Services). 2014. The Health Consequences of Smoking—50 Years of Progress: A Report of the Surgeon General. this resource:

Hickox, K. 2015. “Caught between Civil Liberties and Public Safety: Personal Reflections from a Healthcare Provider Treating Ebola.” Journal of Health and Biomedical Law 11: 9–23.Find this resource:

Hodge, J. G. 2015. “Legal Myths of Ebola Preparedness and Response.” Notre Dame Journal of Law, Ethics and Public Policy 29: 355–374.Find this resource:

Hodge, J. G., and Corbett, A. 2016. “Legal Preemption and the Prevention of Chronic Conditions.” Preventing Chronic Diseases 13: 160121.Find this resource:

Hodge, J. G. Orenstein, D. G., Millea C., White L. C., and Sorensen, A. 2011–2012. “Alternative Models to Supplement Menu Labeling.” Nexus: Chapman’s Journal of Law and Policy 17: 79–96.Find this resource:

Holmes, O. W. 1897. “The Path of the Law.” Harvard Law Review 10: 457–478.Find this resource:

IOM (Institute of Medicine). 1988. The Future of Public Health (Washington, D.C.: National Academies Press). this resource:

IOM (Institute of Medicine). 2011. For the Public’s Health: Revitalizing Law and Policy to Meet New Challenges (Washington, D.C.: National Academies Press). this resource:

King, B. A., Peck, R. M., and Babb, S. D. 2014. “National and State Cost Savings Associated with Prohibiting Smoking in Subsidized and Public Housing in the United States.” Preventing Chronic Disease 11: E171.Find this resource:

Lombardo, P. A. 2010. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Baltimore, Md.: Johns Hopkins University Press).Find this resource:

Mariner, W. K., Annas, G. J., and Glantz, L. H. 2005. “Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law.” American Journal of Public Health 95: 581–590.Find this resource:

Master Settlement Agreement. 1998.

Morain, S., and Mello, M. M. 2013. “Survey Finds Public Support for Legal Intervention Directed at Health Behavior to Fight Noncommunicable Disease.” Health Affairs 3: 486–96.Find this resource:

Moulton, A. D., Goodman, R. A., and Parmet, W. E. 2007. “Perspective: Law and Great Public Health Achievements.” In Law in Public Health Practice, edited by Richard A. Goodman (New York: Oxford University Press).Find this resource:

(p. 102) Moulton, A. D., Gottfried R. N., Goodman, R. A., Murphy, A. M., and Rawson, R. D. 2003. “What Is Public Health Legal Preparedness?” Journal of Law, Medicine & Ethics 31: 672–83.Find this resource:

National Council of State Legislatures. 2016. “Trans Fat and Menu Labeling Legislation.”

Network for Public Health Law. 2016. “Legal Toolkit for Newborn Screening DBS.”

New York Times. “New Yorkers’ Views on their Mayor and His Program.” 2013. New York Times, August 16. this resource:

Pratt, K. 2015. “Lessons from the Demise of the Sugary Drink Portion Cap Rule.” Wake Forest Journal of Law and Policy 5: 39–104.Find this resource:

Public Health Law Research LawAtlas. 2016a. “Good Samaritan Overdose Prevention Laws.”

Public Health Law Research LawAtlas. 2016b. “Naloxone Overdose Prevention Laws.”

Rothstein, M. A. 2015. “From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine.” Indiana Health Law Review 12: 229–280.Find this resource:

Runyan, C. 1998. “Using the Haddon Matrix: Introducing the Third Dimension.” Injury Prevention 4: 302–307.Find this resource:

Ryan, K. W., Card-Higginson P., McCarthy S. G., Justus, M. B., and Thompson, J. W. 2006. “Arkansas Fights Fat: Translating Research into Policy to Combat Childhood and Adolescent Obesity.” Health Affairs 25: 992–1004.Find this resource:

Sahadi, J., and Smith, A. 2016. “Philadelphia Passes a Soda Tax.” CNN Money, June 16. this resource:

SAMHSA (Substance Abuse and Mental Health Services Administration). 2015. “About the Synar Amendment and Program.”

Tobacco Control Legal Consortium. 2014. “Preemption: The Biggest Challenge to Tobacco Control.”

Tobey, J. A. 1926. Public Health Law: A Manual of Law for Sanitarians (Baltimore, Md.: Williams and Wilkins). this resource:

Trust for America’s Health. 2015. The State of Obesity: Better Policies for a Healthier America 2015.

Tynan, M., Holmes, C. B., Promoff, G., Hallett, C., Hopkins, M., and Frick, B. 2016. “State and Local Comprehensive Smoke-Free Laws for Worksites, Restaurants, and Bars—United States, 2015.” Morbidity and Mortality Weekly Report 65: 623–626.Find this resource:

US Department of Health, Education, and Welfare. 1964. Smoking and Health: Report of the Advisory Committee to the Surgeon General of the United States. this resource:

US Department of Housing and Urban Development. 2015. Proposed Rule: Instituting Smoke-Free Public Housing, 80 FR 71762.

Weiser, B., and Goodman, J. D. 2014. “The Flu, TB and Now Ebola: A Rare Legal Remedy Returns.” New York Times, October 26. this resource:

(p. 103) Wolf, S. M. 2004. “Law and Bioethics: From Value to Violence.” Journal of Law, Medicine & Ethics 32: 293–306.Find this resource:

WHO (World Health Organization). 2015. “Ebola Virus Disease.”

Yang, Y. T., and Silverman, R. D. 2015. “Legislative Prescriptions for Controlling Nonmedical Vaccine Exemptions.” Journal of the American Medical Association 313: 247–248.Find this resource:


(1.) The Haddon Matrix, originally used to analyze motor vehicle accidents and now extended to other injury prevention efforts, is another framework that can be used to examine public health problems and make decisions, including law and policy. The matrix looks at the pre-event, event, and post-event phases and the characteristics of the host (persons involved), vehicle (instrument), physical environment, and social environment (Runyan, 1998).

(2.) Of course, Justice Holmes also (in)famously upheld Virginia’s forced sterilization of Carrie Buck, declaring, “Three generations of imbeciles are enough.” The decision, the eugenics principles reflected in it (and in the state’s sterilization law), and the assessment of Carrie Buck’s mental capacities have since been criticized (Lombardo, 2010).

(3.) Author Leslie E. Wolf was involved in the development of this resource as a public health law consultant.

(4.) Social distancing measures vary depending on the severity of the disease and how easily it is spread. They include isolation, quarantine, quarantine of neighborhoods (known as cordon sanitaire), shelter-in-place, closing of schools, canceling of events, prohibiting public gatherings, and closing private businesses. Voluntary measures are preferred; however, mandatory measures may be needed. Note that author Stacie P. Kershner was involved in the editing and implementation of the 2010 version of this resource as an ORISE fellow with the CDC.

(5.) Federal quarantine and isolation are used sparingly, and there are few cases challenging federal authority. U.S. ex rel Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) is the most recent case where a federal quarantine or isolation measure was at issue. In Speaker v. U.S. Department of Health and Human Services Centers for Disease Control and Prevention, 623 F.3d 1371 (11th Cir. 2010), Andrew Speaker sued the CDC over alleged Privacy Act violations; however, the tuberculosis isolation order was not in question.

(6.) All states except Mississippi, Florida, Texas, and Minnesota are parties to the Master Settlement Agreement (MSA). These four states had individually settled with the tobacco industry prior to the MSA.