Course Overview
Bioterrorism was not a great societal concern for the U.S. before the Gulf War and through 1995. We were aware of the threat, but nothing had occurred to make us take special precautionary actions. Three events triggered the change in our countrys outlook toward bioterrorism: Aum Shinrikyo. Sarin gas kills 12, injures 5500. An apocalyptic cult tried to aerosolize anthrax throughout Tokyo, but they used an inappropriate strain. This cult is still in existence today, with a lot of money and an interest in killing a lot of people. Soviet Union. Defector Ken Alibek details the elaborate research on biological toxins that had begun during the Cold War era. Over 50,000 people were employed in over 50 labs, working to weaponize and develop antibiotic-resistant plague or strains of anthrax. We have no access to what is going on in such research on the military side, but civilian labs are still active today. Libya, Iran and Iraq are recruiting many of these scientists. Iraq. In 1995 Husseins son-in-law defected and surprised us with more biological weapons information about Iraq than we had expected. A huge amount of anthrax had been weaponized and placed in planes. Rolf Ekeus in 1996 claimed that the world was facing a catastrophic situation that was "unique in the history of mankind."
All of this knowledge led President Clinton to sign a decision directive in 1995, marking the official beginning of our countrys effort to develop plans for a response to biological terrorism.
We will explore public health law by examining an issue of overwhelming interest since Sept. 11, 2001: Bioterrorism.
excerpted from: Richard A. Goodman, Zita Lazzarini, Anthony D. Moulton, Scott Burris, Nanette R. Elster, Paul A. Locke, Lawrence O. Gostin , Other Branches of Science Are Necessary to Form a Lawyer: Teaching Public Health Law in Law School, 30 Journal of Law, Medicine and Ethics 298 (Summer, 2002)
Other branches of science, and especially history, are necessary to form a lawyer.
--Thomas Jefferson
Over two hundred years ago, Thomas Jefferson suggested the need for a broader legal curriculum. As the twenty-first century begins, the practice of law will increasingly demand interdisciplinary knowledge and collaboration -- between those trained in law and a broad range of scientific and technical fields, including engineering, biology, genetics, ethics, and the social sciences. The practice of public health law provides a model for both the substantive integration of law with science, and for the way its practitioners work. In addition, public health law also provides a model for interdisciplinary and integrative teaching.
This commentary provides a rationale for a policy that every U.S. law school offer course options on law and public health. Adherents to this position might even view public health law as so fundamental a subject that it be considered a "foundational" body, akin to, for example, tort, contract, constitutional, and criminal law. The tight intertwining of public health issues with existing core courses surely suggests no less a role for public health law than as a unifying, syncretic theme for law school education. Indeed, the companion commentary by Parmet and Robbins in this same issue of the Journal of Law, Medicine & Ethics more fully argues that public health provides a set of skills and perspectives that should be introduced to all law students as they examine critical cases in core law school subjects.
The case for including courses on public health law in the law school curriculum has deep roots which derive from a combination of trends in legal education, public health and health-care practice, and federal, state, and local government law. Foremost, and also as noted by Parmet and Robbins, the law and several foundational subjects in legal education increasingly intersect with the domains of public health and health law. For example, tort law broadly encompasses the interests and issues of the public health field in injury control, including the categories of intentional and unintentional injuries. Similarly, criminal law, in part, overlaps with injury issues by addressing the punishment and deterrence of not only intentional injuries, but, increasingly, the challenge of personal behaviors representing other serious health risks. The law of contracts now embodies issues of public health program management in a managed care legal framework, while property law has become a medium through which public health law can be applied to assure healthy and safe communities by way of zoning, nuisance abatement, and environmental law, among other means. Administrative law, a required course in some law schools, often deals with regulatory questions directly concerned with the population's health.
In addition to the evolving relations between public health law and tort, criminal, and contract law, many of the most compelling questions in modern public health law and practice involve constitutional issues that define the scope of state and federal power to protect the public's health. Nearly 100 years ago, the U.S. Supreme Court, in Jacobson v. Massachusetts, broadly endorsed the state's police power to include most reasonable acts taken by the legislature to combat disease, including mandatory vaccination. Since then, through a number of key cases, the Court has periodically addressed the public health paradigm, seeking to balance the *299 state's interest in the common goodwith the rights and liberties of the individual. The Court's efforts have included development of the doctrines of substantive and procedural due process in the areas of mental health and public health and the articulation of an individual's right to refuse medical treatment in the context of modern medicine.
In recent years, the federal courts have used "states rights," the long dormant Tenth Amendment, and the takings doctrine to significantly circumscribe what federal public health officials can mandate. Events continuing to unfold since September 11 may further reshape the contours of this paradigm. The emergent threats of biological and chemical terrorism intersect with constitutional law and its fundamental concerns with due process and other safeguards against infringement of personal liberties.
Public health law can play a valuable integrative function across the foundational subjects in at least four other ways. First, the interests and goals of public health law mesh with the basic social/legal theory that one primary role of government is to assure the health of the community's citizens -- otherwise there can be no community.
Second, the laws of public health and community safety are more than simply the embodiment of a state's police power -- they also compose a common thread that connects local, state, and federal governments. One implication of this proposition is that course work in public health law is highly relevant for those students pursuing careers in both health policy and government because the issues of public health policy embody the interactions between local, state, and federal governments.
Third, public health law provides a unique opportunity for integrative teaching: Because public health is so intertwined with the police power and other fundamental legal principles, public health law can be used to teach the basic tenets of constitutional law -- especially procedural and substantive due process, and the tension between individual rights and social well-being.
Finally, the focus in public health law on the importance of the community's health and welfare, including that of marginalized populations, could provide an opportunity to expand the public service commitment and raise the social consciousness of law students and future lawyers. The education and training of medical students emphasize that they incur some debt to society in the process of learning their profession. Perhaps through examples of the role of law and lawyers in protecting both the health and rights of the population, law students could also be encouraged to include public service in their professional role.
