ACHIEVING HEALTH EQUITY through

Law Policy

Marice Ashe, JD, MPH

Founder & CEO

Healthy communities

for all through better laws & policies

Disclaimer

The information provided in this discussion is for informational

purposes only, and does not constitute legal advice. ChangeLab

Solutions does not enter into attorney-client relationships.

ChangeLab Solutions is a non-partisan, nonprofit organization that

educates and informs the public through objective, non-partisan

analysis, study, and/or research. The primary purpose of this

discussion is to address legal and/or policy options to improve

public health. There is no intent to reflect a view on specific

legislation.

© 2016 ChangeLab Solutions

Legal HISTORY reveals both

the POWER & LIMITATIONS

of government authority

to protect the public’s

health

Let’s go back in time

The Mayflower Compact

…covenant & combine ourselves

together into a civil body politic;

for our better ordering, and

preservation and furtherance of

the ends aforesaid; and by virtue

hereof to enact, constitute, and

frame, such just and equal laws,

ordinances, acts, constitutions,

and offices, from time to time, as

shall be thought most meet and

convenient for the general good of the colony; unto which we

promise all due submission &

obedience.”

The Broad Street Pump

New York before sanitation reform

…and New York after the reform

The story of a

1902 smallpox

outbreak inMassachusetts

But the liberty secured by the

Constitution of the United States

to every person within its

jurisdiction does not import an

absolute right in each person to

be, at all times and in all

circumstances, wholly freed from

restraint. There are manifold

restraints to which every person is

necessarily subject for the

common good. On any other

basis, organized society could not

exist with safety to its members.”

The government

can regulate

individual

behavior to

protect health.

TRUE or

FALSE

The government can regulate

individual behavior to protect

health.

TRUE

As long as it is a

reasonable

regulation aimed

at protecting the

public’s health

and safety.

This history forms the

foundation for publichealth law today

Consider the history oftobacco control

Public policy

drove the decline of tobacco use

1900 20101930s 1960s

Sm

okin

g R

ate

s

WWII

Education

First Surgeon

General’s Report

Federal

Cigarette

Tax Doubles

Policy Change

Start Nonsmokers

Rights Movement

First Great

American

Smokeout

25% fewer tobacco-related

diseases (compared to the

rest of the nation)

California 1989-2008

$134 billion saved

6.79 billion fewer packs

Education

Clinical Interventions

Long-lastingProtective Interventions

Changing the Context to

Make Individuals’ Default

Decisions Easier

Socioeconomic Factors

Source: Friedman T.R. (2010). A Framework for Public Health Action: The Health Impact

Pyramid. American Journal of Public Health, 100(4), 590-595.

This story applies to other public health challenges

Create transportation infrastructure

Maintain healthy housing

Prevent drug overdose deaths

Ensure food safety

Provide accessto healthy foods

Prepare foremergencies

Who has the power

to shape public

policy to improvepublic health?

Look to the US Constitution

What are the public

health powers of thefederal government?

MULTIPLE

CHOICE

Which of the following

are examples of the

federal government’s

enumerated powers?

a) Taxing

b) Interstate commerce

c) Zoning

d) a and b

e) a and c

f) a, b, and c

MULTIPLE

CHOICE

Which of the following

are examples of the

federal government’s

enumerated powers?

a) Taxing

b) Interstate commerce

c) Zoning

d) a and b

e) a and c

f) a, b, and c

Federal regulations

can incentivizelocal action

Federal government

can also prohibit or

preempt action

The states have the primary responsibility for public health

“A county or city may make & enforce within its limits all

local, police, sanitary, & other ordinances and regulations not in

conflict with general laws.”

What about tribalsovereignty?

Police Power

Promotes the public health,

safety, & the general well-

being of the community

Enacts & enforces laws for

general welfare

Regulates private rights in

the public interest

Can’t violate state & federal

laws or constitutions

SomeREQUIREMENTS:

Can’t be arbitrary

or oppressive

Must be rationally related to

public health, safety, or general

welfare

Must be reasonably designed to

correct a condition adversely

affecting the public good

TRUE or

FALSE

1. Local governments have

legislative independence

apart from states.

2. The federal government

can control all aspects of

state and local laws.

FALSE

1. Local governments have legislative

independence apart from states.

Local governments generally

act within the authority

delegated to them by states.

2. The federal government can control all

aspects of state and local laws.

The Constitution divides control

between the federal and state

governments.

State & local

government

can…

Investigate disease outbreaks

Ban smoking in multi-unit housing

Create zoning for farmers markets

Require kids to wear helmets

Limit portion sizes

What are the

limitations on thispower?

THE COMMONgood

INDIVIDUALrights

The

Bill of Rights

CONSTITUTIONALrights

Due process

Freedom of speech & religion

Right to bear arms

Search & seizure

Equal protection

According to the 5th & 14th

amendments, the government

cannot deprive individuals of

life, liberty, or property without

due process of law

ProceduralDue ProcessDid the government allow the

right to fair and impartial legal

proceedings before depriving

someone of life, liberty, or

property?

SubstantiveDue ProcessDoes the government have

an appropriate justification

for depriving someone of

life, liberty, or property?

Some things are more difficult

for the

government to

regulate than others

What are fundamental liberties?

The Strict Scrutiny TestIs the government action narrowly

tailored, or is it the least restrictive

alternative to achieve a

compelling goal?

Can the government

require parents to vaccinate their

children?

What about in order to attend public school?

What about in order to attend private school?

MULTIPLE

CHOICE

Which of the following is

required for the government

to prohibit unvaccinated

children from attending

public school?

a) A compelling

government interest

b) A public health

emergency

c) Exceptions for religious

or personal /

philosophical beliefs

d) a and b

e) b and c

f) a, b, and c

MULTIPLE

CHOICE

Which of the following is

required for the government

to prohibit unvaccinated

children from attending

public school?

a) A compelling

government

interestb) A public health

emergency

c) Exceptions for religious

or personal /

philosophical beliefs

d) a and b

e) b and c

f) a, b, and c

When fundamental liberties ARE NOT involved

The Rational Basis TestIs the government action

reasonably related to a

legitimate government goal?

The government

must tread carefully

if a regulation affects

fundamental liberties

Rational

Basis Test

Strict Scrutiny

Test

Individual’s

interest is:

Government’s

goal must be:

Fit between

action & goal

must be:

Minimal Fundamental

Legitimate Compelling

Reasonable

Narrowly

tailored or least

restrictive

alternative

MatchingMatch the government action (Column A)

to the corresponding test it must pass (Column B)

Column A

Prohibiting smoking in multi-unit

housing.

Removing a child from his/her

home because of a neglectful

or abusive parent.

Restricting K-12 students from

leaving campus during the

school day.

Requiring children to wear

bicycle helmets.

Column B

STRICT SCRUTINY

RATIONAL BASIS

According to the 5th & 14th

amendments,

the government

shall not “deny to

any person within

its jurisdiction the

equal protection

of the laws”

Protected Classes

The Strict Scrutiny TestIs the government action

narrowly tailored to achieve

a compelling goal?

Non-protected classifications

The Rational Basis TestIs the government acting

reasonably related to a legitimate

government goal?

Can the government pass a law

that imposes menu

labeling requirements

on large chain

restaurants, but not

on smaller chains or

independents?

A law that applies to

bigger but not smaller

businesses only needs to be reasonably relatedto a legitimate

government goal

Can the government

quarantine South Koreans

suspected of being exposed to MERS?

What about limiting the

number of fast food restaurants in certain parts of the city?

What about putting an

age restriction on buying harmful

products?

Questions to consider

Can the government

quarantine South Koreans

suspected of being exposed to MERS?

TRUE or

FALSE

Can the government quarantine

South Koreans suspected of being exposed to MERS?

FALSE

The government must have a

valid justification for

distinguishing between

members of certain protected

categories, such as race or

national origin.

TRUE or

FALSE

What about limiting the

number of fast food restaurants in certain parts of the city?

What about limiting the number of fast food restaurants in certain

parts of the city?

TRUE

Zoning codes can restrict the

number of fast food chains in

certain parts of the city as long

as those distinctions are not

based on the race, national

origin, or ethnicity of a

community.

TRUE or

FALSE

What about putting an age

restriction on buying harmful

products?

TRUE

Minors do not receive special

protection under the Equal

Protection Clause. Therefore,

laws that treat them differently

from adults need only be

reasonably related to a

legitimate government goal.

What about putting an age restriction on buying harmful products?

Recap

Can the government

quarantine South Koreans

suspected of being exposed to MERS?

What about limiting the

number of fast food restaurants in certain parts of the city?

What about putting an

age restriction on buying harmful

products?

Legal HISTORY reveals both

the POWER & LIMITATIONS

of government authorityto protect the public’s health

ACHIEVING HEALTH EQUITY through

Law Policy

Marice Ashe, JD, MPH

Founder & CEO