The Laws that Change America’s Health
April 2023 | Kira Kramer (Staff Writer & Editor)
One of the purposes of law in civil society is, arguably, to protect the general safety and welfare of all people. Laws that protect human safety may be associated with those that prevent bodily harm or wrongdoings such as robbery or murder. Bodily harm, however, can also be a result of unsafe practices such as the unsanitary handling of food. In that case, laws are developed and implemented to promote food safety. While associations with the law are not often correlated to healthcare, nearly all commonplace civilian protections towards health and safety are guaranteed to society through a specific area of the law – health law. As described by Harvard Law, “health lawyers work on cases and policy relating to access to care, insurance coverage, difficult ethical choices, providers of care, the safety of our drugs and food supply, disease prevention and treatment” and many other complex healthcare-related issues. [1] As a result of health law and policies implemented over the last century, people can enjoy longer, healthier lives. The history surrounding this type of law has not always been constructive. In today’s world, there exist many laws and policies that govern the healthcare world that threaten to discriminate against members of society, subsequently worsening healthcare outcomes.
One aspect of health law that is incredibly fascinating is the overlap between this type of law and other areas of law that are utilized to craft health legislation. Some of the types of law that are utilized within health law include: “contract law, tax law, insurance and pension law, employment and labor law, public benefits law, torts, ethics, criminal law, administrative law, privacy, civil rights, reproductive rights, constitutional law, and statutory drafting and interpretation—even First Amendment religious liberty and freedom of speech concepts can be implicated in the field.” [2] Health law is practiced at every governmental level, from local government up to the national level, and even into the private sector. Different types of groups, from nonprofit organizations, private or public interest law firms, can practice health law. Some of the major issues that health law aims to address include access to healthcare, insurance, public benefits, provider behavior, cost containment, public health, bioethics, food policy and regulation, medical malpractice, and many more. While health law may seem like a very niche area of the law, it is deeply associated with the everyday lived experiences of many people. Everything – from access to clean drinking water to laws requiring that you wear a helmet while riding a motorcycle – has been regulated by the health law.
While health law incorporates vast specialties within the law, it also protects the health and well-being of citizens. Some of the most incredible accomplishments of health law include the Pure Food and Drug Act of 1906 and the subsequent legislative accomplishments that allowed for the regulation of “foods and prescription drugs; mandated folic acid fortification of cereal grain products; limits on chemical contamination of crops; food stamps; the Women, Infants, and Children program; and school meals” are measures that have improved the health and safety of Americans. After the publication of Upton Sinclair’s, The Jungle – which exposed the horrific working conditions in the meat-packing industry – laws and regulations were introduced to protect consumers from unsanitary food manufacturing practices. As a result of The Jungle, President Theodore Roosevelt passed a law regulating food and drugs on June 30, 1906. That same day, he also signed the Meat Inspection Act. This would eventually lead to the Pure Food and Drug Act, which regulates food additives and prohibits misleading labeling of food and drugs, as well as the formation of the Food and Drug Administration (FDA). Today, the FDA is responsible for “protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation's food supply, cosmetics, and products that emit radiation.” [3]
Health law, however, has not always been as forthcoming or upstanding. Sometimes the law has been downright atrocious. At times, the purveyors of the legal system have enacted laws that actively harm the health and well-being of citizens. One of the most heinous examples takes place in 1927 when the Supreme Court decided to uphold a state's right to forcibly sterilize a person they considered unfit to procreate in a 8 to 1 vote. In Buck v. Bell (1927), a young woman named Carrie Buck, whom the state of Virginia had deemed to be "feebleminded” was forcibly sterilized against her will. [4] This ruling would lead to the forced sterilization of over 70,000 people in the 20th century. [5] Justice Holmes was able to rule using compulsory vaccination, validated under Jacobson v. Massachusetts (1905), to support the justification of forced sterilization. [6] He then verbally justified his decision saying that “three generations of imbeciles are enough.” [7] This was a major violation of human rights and a horrific failure of the public health law to protect the health of citizens.
The degree to which the government can intervene in the health of a person or community has not always been straightforward. The recent COVID-19 pandemic and subsequent vaccination requirements have spurred constitutional discourse about whether or not the federal and state governments are permitted to pass public safety policies that may or may not violate constitutional rights. There are two Supreme Court decisions that guide state and local authorities to issue vaccine mandates. In 1905, the Supreme Court ruled in Jacobson that “under a state law local health authorities could compel adults to receive the smallpox vaccine.” [8] The Court justified this decision by saying that under the state’s general police power there exists the ability to enact laws that protect the health, safety, morals, and general welfare of the public.
In 1922, the second decision on vaccine mandates came as a result of Zucht v. King,where the Court reached a similar conclusion. Henning Jacobson and Rosalyn Zucht argued that the vaccine policy violated their 14th Amendment due process rights. Similar lawsuits that occurred during the pandemic still ruled in favor of vaccination mandates, stating that there is not enough evidence to support the argument that their constitutional rights are being violated by having to observe vaccine mandates. These mandates are made possible through Section 361 of the Public Health Service Act (PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” [9] However, federal laws provide protections to employees based on religious beliefs or disability status. Enacting a federal vaccine mandate would provoke legal challenges because the 10th Amendment prohibits commandeering or forcing states to use their own resources to carry out our federal policies.
Even though there are limitations to the extent to which the government can enact health policy, there are opportunities at the state level to enact laws that change the health of communities. There does not exist a universal healthcare system in the United States, therefore, each state is able to dictate different types of health and safety laws. There exists a handful of laws and policies in the world of healthcare that are enacted and enforced by the federal government. Some examples of these would be the enforcement of the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Patient Safety and Quality Improvement Act of 2005 (PSQIA), and fraud and abuse laws to name a few. [10] Despite these federal regulations, much of the public health law that governs peoples’ daily lives come from state legislators. Even though Medicare, Medicaid, Children's Health Insurance Program (CHIP), and other federal programs were created by the federal government, the benefits and eligibility pertaining to each are decided differently by each state. This causes significant discrepancies and disparities between health access and coverage. Therefore, Health law advocates are siloed by the law and policy that exists in their state.
Despite the challenges that the fragmented system presents, it is still possible for individuals to influence policies that change the health outcomes of their communities for the better. Some of these changes can be sought out through the presentation of bills at the local, state, and national levels. Legislators can develop their bills from several different sources. These sources include constituents, legislative hearings, and personal experience as well as research on the idea (current Nevada law or other states). [11] There could also be a request for a bill draft resolution (BDR) or they have the option to have the Legal Division prepare the bill draft and deliver it to a sponsor (requestor). [12] This means that people personally affected by a health issue in the community can seek out their representatives and propose a bill that addresses a concern in their community. David Bandbaz did just that.
Bandbaz is a fourth-year medical student at the Kirk Kerkorian School of Medicine. In the spring of 2023, he matched with the University of Utah to attend their general surgery residency program. While on rotations in UMC’s trauma center, he would observe the grotesque injuries that patients would present as a result of motorcycle accidents. After becoming seriously injured in a motorcycle accident himself and researching the incidence and severity of motorcycle-related death and injury, he knew something needed to be done. Through collaborating with community partners and staff at the Kirk Kerkorian School of Medicine, he was able to work with Nevada State Senator, Dallas Harris, to propose a bill in the 2023 legislative session that aims to reduce the risk of death and injury in motorcycle vehicle accidents – SB 423.
One of the components of this bill calls for riders who were found riding without a motorcycle endorsement to undergo rider safety training within nine months of the date of the final order of the court in lieu of assessing the fine for the violation. [13] The bill also requests that motorcycle endorsements be renewed by retesting via taking a safety course, to prove that riders are still capable of riding a motorcycle. [14]Another component of the bill is that riders under 30 years old must complete a course of motorcycle safety in order to renew their endorsement at least once every 8 years after the initial issuance of the endorsement. [15] For riders over 30 years of age, this would be at least once every 12 years after initial issuance. SB 423 passed through the Senate Committee on Growth and Infrastructure and Assembly Growth and Infrastructure Growth Committee. It has also passed both the Assembly and State Senate as of May 25, 2023. Bandbaz has been working with legislators and community members on this bill for three years, and his dedication is a testimony to how individual community members can enact change.
Many public health laws are being presented at the 2023 Nevada Legislative Session. This is likely due to the fact that this is the state’s entire in-person session since the COVID-19 pandemic. The pandemic shined a spotlight on the deficiencies of healthcare systems across the country, and through law and policy, legislators and public health professionals can hope to improve access to healthcare, quality of care, and ultimately, health outcomes for all people. It is imperative to public health objectives that these initiatives continue to be prioritized and given adequate attention as time goes on, and as the memory of the pandemic fades from view. Due to global warming, overcrowding, and other modern-day issues, it is likely that pandemics and other infectious diseases will arise. Creating robust public health systems supported by law and policy will allow societies to be prepared for what the future holds.
Sources
Pattanayak, Catherine, Joan Ruttenberg, and Annelise Eaton. “Health Law: A Career Guide.” Bernard Koteen Office of Public Interest Advising. Harvard Law, 2012.
Ibid.
“Food and Drug Administration.” USAGov.
Buck v. Bell. 274 US 200 (1927).
The Petrie-Flom Center Staff. “Why Buck V. Bell Still Matters.” Bill of Health. Harvard Law Petrie-Flom Center, October 15, 2020.
Buck v. Bell. 274 US 200 (1927).
Ibid.
Bomboy, Scott. “Current Constitutional Issues Related to Vaccine Mandates.” National Constitution Center. August 6, 2021.
“42 U.S. Code § 264 - Regulations to Control Communicable Diseases.” Legal Information Institute. Cornell Law.
Kalantar, Art. “6 Key Laws That Regulate the Healthcare Industry?” Law Offices of Art Kalantar, June 12, 2020.
Malkiewich, Lorne, and Allison Combs. “The Nevada Legislative Process Lorne Malkiewich.” Nevada Legislature. Accessed April 20, 2023.
Ibid.
Nevada Legislature. Senate Bill NO. 423–Committee on Growth and Infrastructure. 82nd Leg. sess. Introduced in Senate March 27, 2023.
Ibid.
Ibid.