By Taleed El-Sabawi
The use of emergency public health powers by state and local governments during the first months of the COVID-19 pandemic led to intense public criticism followed by legislative attempts (include some successes) to strip state executives of this authority. This has led some to ask: is this the end of public health law? What does the future hold?
For public health law to survive, it needs a good defense. It needs passionate advocates. It needs a growing constituency that understands its utility and its importance in protecting the health of the population. But, let’s face it. I would wager a guess that the vast majority of law students, law professors, and law school administrators do not even know what public health law is.
In my experience, it is not unusual for schools to offer health care law or bioethics courses, but public health law courses are rarely on the books. Perhaps, it is in part because some assume that the difference between public health and health care is pure semantics. Though commonly confused in the U.S., health care and public health are not the same. Health care law focuses on laws governing the medical or health care industry.
Public health law is the use of the law to protect and promote population health. Teaching public health law involves in depth discussions about values, collectivism, and the balance between respecting individual liberties and protecting the public from visible and invisible threats to health.
For example, ending the spread of a novel, deadly, infectious disease requires swift governmental action that involves the sacrifice of some individual freedoms in order to protect the health of the collective. This premise was accepted as a given by many and codified into state and federal laws delegating broad powers to the executive branch during public health emergencies to achieve these ends. Such powers were used to control infectious disease outbreaks of smallpox, the Spanish flu, and others throughout history.
Because public health emergencies have become relatively fewer over time, a course in public health law can use historical and present-day examples to contextualize the need for public health authority and can help normalize its use. Further, teaching public health law can impassion future lawyers, legislators, regulators and judges to come to its defense, both now and in the future.
Offering a course in public health law is not going to save public health law from complete erosion overnight. However, it can help signal its importance and increase awareness about its existence by its sheer codification in the “list of offered classes” or course list.
For colleges that already regularly offer public health law, professors and administrators should seriously consider cross-listing the course at other graduate schools and even to allow senior undergraduates to take the course. To be practiced properly, public health law requires in the least cooperation, if not collaboration, between persons with broad and varied disciplinary training. So why not begin teaching optimal public health law practice by integrating students from various disciplines into the classroom? Doing so also increases awareness of public health law outside of the college of law.
In addition to offering introduction to public health law courses, we must train more public health lawyers, develop curriculum in advanced public health law, and encourage career services offices to help students broaden their job search prospects by including health law jobs that are legal in nature but are housed in policy divisions or regulatory enforcement agencies.
Though the U.S. Supreme Court and federal courts have shown unprecedented hostility to efforts by both state and federal government to stop the spread of COVID-19, the political attention on public health law triggered by governmental responses to COVID-19 have also reminded state and local governments and policymakers of the importance of public health law and the need to have lawyers trained in its formulation and administration. Public health law may have been eroded by the backlash, but it is far from obsolete. Now is the time to capitalize on the interest it has generated and use it as an opportunity to educate students on its importance and recruit the next generation of public health lawyers to ensure public health law’s continued longevity.
Taleed El-Sabawi, JD, PhD, is an assistant professor at Florida International University College of Law.