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Public Health Goes to Court: The Good, the Bad and the Ugly

posted on Wed, Jul 23 2014 11:28 am by Andy Baker-White

Last month, several federal and state courts reached decisions that could end up impacting the way we practice public health. Most recently, the U.S. Supreme Court in Burwell v. Hobby Lobby ruled that closely held for-profit employers are entitled to the protections established by the federal Religious Freedom Restoration Act (RFRA) and employers with religious objections to certain forms of contraception covered by employee health insurance plans are to be exempt from providing such coverage.

The Hobby Lobby decision raises the question: Could an employer use RFRA to opt out of providing vaccination coverage? The majority opinion attempts to allay such concerns, but it’s possible that an employer invoke RFRA, arguing that mandating vaccination coverage is a substantial burden on its free exercise of religion and, while limiting the spread of infectious disease is a compelling governmental interest, there are less restrictive ways to achieve the government’s interest (e.g., the federal government could subsidize the vaccinations).

A second federal decision of note is from the U.S. District Court for the Eastern District of New York. In Phillips v. City of New York, the court consolidated three actions brought by parents of children who sought or received religious waivers for school immunization requirements. These cases challenged city and state law authorizing the exclusion of unvaccinated students from school during disease outbreaks. Among the parents’ many assertions were claims that the city and state vaccination program, including the school exclusion rule, violated their rights to free exercise of religion and equal protection under the U.S. Constitution. The District Court dismissed the parents’ claims. For more on the decision see this post on the Bill of Health blog by Ross Silverman, Professor at Fairbanks School of Public Health and McKinney School of Law, Indiana University, Indianapolis.

June also saw state court decisions limiting the authority of local boards of health. First, the New York Court of Appeals ruled in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, (i.e., the portion cap case,) that the New York City Board of Health exceeded its authority in limiting the size of beverage containers used for serving sugary drinks as a means to address the city’s obesity problem. In another post on the Bill of Health blog, Wendy Parmet, Professor at Northeastern University School of Law, wrote that the court failed to 1) give substantial weight to public health protections, 2) defer to public health evidence or the expertise of health professionals, and 3)recognize that broad public health powers are needed to address contemporary health issues. Professor Parmet asserts that courts should instead recognize public health as a legal norm, a legitimate goal of law, and something to rely upon when making judicial decisions.

A second state decision is from the Kentucky Supreme Court, which ruled in Bullitt Fiscal Court v. Bullitt County Board of Health that a county board of health is not authorized to ban smoking in public places under its statutory authority to adopt regulations protecting public health not in conflict with other laws and regulations. In the opinion, the Court examines the legislative history of the statute granting county boards of health their authority and explains that since the legislators who passed the law in 1954 were most likely smokers, they would not have intended board of health authority under the statute to extend to the regulation of smoking. One now has to wonder if a county board of health in Kentucky is limited in its general authority to addressing only those public health concerns that were known or popular in 1954. The Court then distinguishes its earlier decisions that upheld broad local board of health authority over issues such as lead paint and habitable housing. Most interesting is the Court’s analysis of the 1967 appellate decision in Barnes v. Jacobsen. The Barnes case involved a challenge to a county board of health’s regulation of private sewage systems. As in the Bullitt Fiscal Court case, the board of health in Barnes did not have specific authority to regulate sewage but was exercising the general powers granted to it under the 1954 statute. Unlike the recent case, however, the court in Barnes recognized sewage as a public health issue and asserted that the county board of health had the authority to regulate and protect.

The Kentucky Supreme Court distinguishes the Barnes from the Bullitt County case because the Barnes court relied on a line of cases that identified the importance of regulated sewage. Unable to point to a line of cases establishing the importance of tobacco control to public health and unwilling to issue what could have been the first case in a line of cases recognizing the protection from tobacco smoke as a legitimate goal of the law, the Court chose instead to limit the authority of the board of health to regulate smoking and failed to recognize public health as legal norm.

It is concerning how these court decisions fail to recognize the general power of boards of health to protect and maintain public health and seem to require specific authority to address contemporary health issues. With the addition of the continued constitutional and statutory challenges to immunization policy, June has proven to be an unsettling month for public health law.

This blog post was prepared by Andy Baker-White, J.D., M.P.H., associate director for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health. 

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. The views expressed in this post do not represent those of the Robert Wood Johnson Foundation.

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