Social Risk and the Transformation of Public Health Law: Lessons from the Plague Years

Acquired Immune Deficiency Syndrome (AIDS) was the wake-up call that disturbed America from its mid-twentieth century slumber concerning the dangers of communicable diseases. Until AIDS was identified in 1981, most Americans felt largely impervious to health threats posed by viruses or bacteria. Polio, smallpox, and tuberculosis had been brought under control by the magic bullets of antibiotics and vaccines. We felt more susceptible to the ravages of cancer or the debilitation of heart disease. But, over the last twenty years, the (re)emergence of serious or life-threatening microbial- based conditions such as Ebola, hantavirus, Lyme disease, West Nile virus, and even newly-recognized strains of hepatitis have underscored our vulnerability. History teaches that new plagues will continue to emerge. What does this mean for the development of public health law and policy? Each epidemic provokes legal and political challenges that raise basic questions about our conceptions of social justice and that shape the development of our public health jurisprudence. How do we identify those at risk or those in need of care? Is it ethical to force people to learn they are ill if no cure exists for their underlying disease? How do we protect those who are healthy from becoming ill? In a world of limited resources, how do we distribute available or emerging treatment? How do we protect those who have fallen ill from inappropriate discrimination or other harms? It is an enormous challenge to determine how these decisions should be made and who should make them. To address these and other problems in the current state of public health law, I propose a Harm Assessment Protocol that will aid legislators and policymakers as they tackle the challenge of modernizing this area of law. This Protocol will allow them to avoid-or at least mitigate-the harms that otherwise might derive from implementing a health-based statutory proposal that may be attractive to or popular with the general public, but which is not, in reality, likely to benefit the public health. The Harm Assessment Protocol proposed in this Article is designed to bring the voices of the disempowered-if not literally, then at least conceptually-to the halls of the legislature and the offices of policymakers, and it relies on these cogent critiques of the primacy of autonomy. Instead of relegating social risk considerations to the end of the process, when they often are ignored or overlooked, my multi-prong analysis begins with an inquiry into such factors. This Article begins by reviewing historical and modem approaches to disease control, emphasizing the fact that, despite growing medical breakthroughs, we continue to face profound challenges to our national health and well-being. Part I also identifies the various governmental and political actors who currently are responsible for the development of public health law and policy and explores the limits of their power. This historical and structural background provides a context for the modern questions of public health law and policy addressed later in this Article. Part II examines in greater detail the model public health statute described earlier. Building on Part II\u27s observations, Part III introduces the Harm Assessment Protocol as a means of evaluating public health law and policy, including existing dominant public health law, the model public health statute, and possible future proposals