Legal Literacy for Public Health Practitioners

Public health and law are inextricably intertwined. Law is the foundation of governmental public health practice, delineating the duties and authority to protect and promote conditions necessary for population health. ¹ Law is also a social and structural determinant of health, because laws shape the physical, social, and economic environments that directly impact population health. ² Public health laws at all levels of government enshrine public health strategies, are critical to addressing emerging issues, and are the means through which interventions are implemented and enforced.

For public health practice in the United States, laws can establish authority for public health agencies, outline public health functions, and appropriate funding for such public health activities. ³ Public health laws help agencies analyze and address issues and achieve the 10 Essential Public Health Services. ^4,5 Understanding the entirety of the realm of law is not practicable, but learning the language of law allows practitioners to strategically address public health issues.

The greatest needs for professional development reported among the governmental public health workforce are in the realm of law and policy. ⁶ Many schools and programs of public health focus their public health policy curricula on concepts of federal policymaking and reimbursement, but public health practitioners entering the workforce from master of public health programs report being unprepared to work in state and local public health law and policy. The top 2 training needs among practitioners in government agencies are (1) influencing policy development and (2) understanding the effect that law and policy have on health. ⁶ To meet these needs, we call on practitioners to build their public health legal literacy, defined herein as the ability to understand the meaning, context, structure, and relationships of legal terms and principles foundational to the use of law in public health research and practice.

Principles of Public Health Legal Literacy

Understanding the connections between public health and law is vital for public health professionals in research and practice. Public health practitioners require a basic level of legal understanding to address contemporary public health challenges and improve the social and structural determinants of health. Although a complete and comprehensive understanding of the law and its implications requires years of study, public health legal literacy can bring alive concepts that are relevant to public health practice.

The aim of this article is to increase understanding of the language of law as it applies to public health research and practice. As such, not all legal topics are included in this article; processes for developing legislation and rulemaking that differ across jurisdictions and many constitutional law topics are beyond the scope of this article. We also note that government structures, legal systems, and languages differ by country; therefore, sources of law, their hierarchy, and legal terminology will also vary in meaning in the global context. Here, we focus on the terms and principles of public health legal literacy required for US governmental practice that fall into 2 broad categories: (1) the structures and sources of law that influence policy development and (2) studies that build an understanding of the effect of law on health.

Structures and Sources of US Law

Law has historically played a substantial role in public health efforts, and this role continues today. Law is used to address a multitude of public health issues, from controlling infectious disease outbreaks and addressing childhood obesity, to responding to and recovering from disasters. ¹ Modern law and policy solutions have helped achieve substantial progress in combating the opioid epidemic, such as the enactment of state naloxone access laws, which are associated with a significant reduction in opioid-related overdose deaths. ⁷ The underpinnings of these interventions are legal authorities, or powers, that describe what government can or cannot do and which legal structures and processes apply.

Defining these authorities is vital to public health legal literacy. They establish and describe the functions of legal structures, such as government agencies, and determine which level of government is responsible for certain activities. In the United States, laws are created and implemented at the federal, state, territorial, and local levels and by 574 federally recognized American Indian/Alaska Native tribes, which are sovereign nations. ⁸ Federal law creates a framework to govern relationships among states, the federal government, and tribes, and tribes have the power to create and promote their own public health laws. In public health, state and local laws, as well as tribal and territorial laws, are the main sources of public health action, or intervention, but these laws cannot conflict with laws created by higher levels of government.

The 5 primary sources of law are constitutions, treaties, statutes, regulations, and case law (Box). We focus on these sources of law and their relevance to public health practice in the United States. Constitutions establish the basic structure of the government, primarily at the federal and state levels. For example, the federal and state constitutions create the 3 branches of government—legislative, executive, and judicial—and give them authority to undertake certain activities. The US Constitution also creates federalism, defined as the relationship and distribution of power among national, state, and local governments. ^9,10 This key concept lies at the heart of the constitutional system in the United States and drives the implementation of public health law. ¹⁰ The US Constitution provides specific powers for the federal government and reserves all remaining power for the states and the people, including the police powers under which most public health authority resides. Police powers refer to the states’ authority to enact and enforce laws that protect the public’s health, safety, and general welfare, or to delegate this right to local governments. States are recognized as laboratories of democracy because of their ability to create and test laws for particular population needs.

Box. Key legal terms for public health practitioners in the US context.

Term	Definition
Constitution a	The fundamental and organic law of a country or state; establishes many of the institutions of government, defines the scope of sovereign powers, and guarantees individual civil rights and liberties. The US Constitution distributes power among the various levels of government.
Treaty a	An agreement formally signed, ratified, or adhered to between 2 countries or sovereigns.
Regulation a	An official rule or order, with legal force, issued by an administrative agency, but only as authorized by a legislative body.
Statute a	A law passed by a federal, state, tribal, or territorial legislative body (ie, Congress, state legislatures).
Case law a	Law established by the courts in court opinions, derived from the application of law to individual cases.
Law	Laws can be thought of as edicts/rules issued by governmental bodies. Statutes, regulations, and ordinances all fall under the category of “laws.”
Policy	The term “policy” is used in many different ways, but it can be considered an umbrella term that covers laws, guidelines, regulation, procedure, administrative action, incentive, or voluntary practice of a government or other institution.
Ordinance	Issued by local governmental bodies (eg, counties, cities, towns).
Executive order	An order issued by or on behalf of the chief or head of the executive branch (eg, president, governor, mayor) that directs or instructs the actions of executive agencies or government officials or sets policies for the executive branch.
Act	A product of a legislative body that becomes a law.
Preemption	Rule of law set by a higher level of government that will invalidate a lower level of government.
Ceiling preemption	Prevents lower levels of government from passing or enforcing any legislation or laws on an issue that differ from requirements in a higher-level law.
Floor preemption	Minimum standards set in a higher-level law, allowing a lower level of government to regulate some parts of an issue more strictly.
Precedent	Requirement of courts to follow the decisions of higher courts in the same jurisdiction.
Federalism	The relationship and distribution of power among national, state, and local governments.
Police powers	Fundamental authority of states to make and enforce laws.
Due process	Legal requirement of the government to respect all rights due to individuals.
Legal epidemiology	The scientific study of law as a factor in the cause, distribution, and prevention of disease and injury in a population.
Must	A term that imposes a legal obligation and indicates a necessity to act.
Shall	A term that imposes an obligation to act; could also mean a prediction of future action.
Will	A term that predicts future action.
May	A term that indicates discretion to act.

^aSources of law. Black’s Law Dictionary. ⁹

Constitutions also limit the reach of governmental power by creating individual rights. These rights can serve as a check on the exercise of public health authority. Some of these rights are found in the Bill of Rights, or the first 10 amendments to the Constitution, which grant rights to free speech, privacy, and religion. The Fifth and Fourteenth amendments limit the power of the federal and state governments to deprive individuals of life, liberty, or property without first providing them due process, or adequate notice and a hearing, and they grant equal protection by requiring that similarly situated individuals be treated the same way. Public health interests can also supersede individual liberties at times—think of vaccine laws to prevent outbreaks and mortality. Understanding the rights and values behind such laws can help practitioners make informed decisions about how to create, implement, and enforce public health laws while respecting individual autonomy.

A statute is a law that is passed by a legislative body, such as the US Congress or state legislatures. ⁹ Statutes are pertinent to public health practice because they give power to administrative agencies, such as health departments. Congress may also enact statutes that provide for federal roles in public health, which include the creation of federal public health infrastructure; establishment of federal public health agencies, programs, and services; and appropriation of funds for federal agencies’ public health work or to aid states’ public health work. ¹⁰ Legislatures also enact statutes that allow these authorities to change during public health emergencies to address new needs. ¹¹

Whereas statutes provide a general framework for a law, regulations provide specific requirements and technical details. Regulations are rules issued by an administrative agency or local governing body, such as a local board of health, that carry legal force or power. ^9,10 Regulations, which can generally be issued and amended more quickly than statutes, allow agencies to address new challenges as they arise. ¹⁰ Regulations often address highly technical aspects of issues, particularly when they incorporate expertise from scientific agencies that best know the subject.

Case law created by US courts that review and decide on challenges to statutes and regulations can also have discrete impacts on public health authorities. ² Information on how laws that are challenged in court are reviewed is available in an article by Burris et al. ¹ In understanding case law, it is important to recognize the distinction between binding precedent and persuasive precedent. Binding precedent refers to the concept that courts are required to follow the decisions of higher courts in the same jurisdiction. ¹² Trial courts are therefore bound by decisions made by appeals or appellate courts and the highest level or supreme courts in each state. All state courts are bound by decisions of the US Supreme Court, which rules on constitutional issues and other matters relating to federal law. ¹² On the other hand, cases from other jurisdictions with similar facts may be considered by a court as persuasive precedents when there is no binding ruling upon which to rely. Similar to evidence-based public health, in which strategies determined to be efficacious in a target population are implemented in another, courts can rule that evidence-based strategies used in one jurisdiction are valid to use in another. ^13,14

The Impact of Law on Public Health

To understand the impact of legal structures on health, practitioners use legal epidemiology, the scientific study of law as a factor in the cause, distribution, and prevention of disease and injury. ¹⁵ As a discipline that merges skills from lawyers and public health practitioners, legal epidemiology provides a research-based platform from which public health issues can be analyzed and addressed. ^16,17 Legal epidemiology uses comparative analyses to uncover the effect of laws and legal practices on public health outcomes. Studying the “dose,” or the legal intervention, and its “response,” or health outcome, is the focus of numerous researchers and a rapidly growing body of literature for which public health legal literacy is required. ¹⁵

Although jurisdictions may have enacted public health laws, their implementation and enforcement are key to understanding effectiveness. Because the text of laws is written to achieve certain goals, legal language is used in statutes and regulations to characterize authorities and public health obligations to act in a certain context. The distinctions in legal language matter but can at times be unclear. For example, terms such as “must,” “shall,” “may,” and “will” are critical to characterizing, implementing, and enforcing legal authorities, but these terms can be confusing as to whether certain actions are required or optional. ^18,19 Distinctions are particularly important when developing new laws to ensure public health actions are clearly authorized and enforceable.

Even the terms “law” and “policy” are used interchangeably in the public health field, but these terms have vastly different consequences for enforcement. Law typically refers to the rules that are binding or enforceable. ²⁰ Public health law is defined as the study of the legal powers and duties of the state, in collaboration with its partners, to assure the conditions for people to be healthy, and the limitations on the power of the state to constrain the autonomy, privacy, liberty, and proprietary or other legally protected interests of individuals for the common good. ²¹ Policy, meanwhile, is defined by the Centers for Disease Control and Prevention and other federal agencies as a law, regulation, procedure, administrative action, incentive, or voluntary practice of governments and other institutions. ²² Generally, policy can also refer to the internal guidance documents that agencies create to outline standards and procedures for their operations.

Although both public health laws and public health policies can be written to achieve similar health goals for a population, they differ greatly when it comes to enforcement. Policies may not have the same “teeth” or consequences as laws do for people who do not comply. For example, both smoke-free parks policies and smoke-free parks laws can aim to prevent smoking in communities. However, violation of a smoke-free parks policy might result in eviction from the premises, but violation of a smoke-free parks law could result in monetary penalties. ²³ If a fine reduces the likelihood that individuals will smoke, the law could have a larger net effect on the public health outcome of lung disease than a policy would.

Conclusion

Legal literacy is necessary across all sectors in the transdisciplinary field of public health. Legal understanding is integral to research and practice because practitioners must be able to inform laws and policies to impact population health and achieve goals through using them effectively. Furthermore, for the growing public health law research community in the United States and internationally, public health legal literacy will be a requirement to developing and conducting legal epidemiologic assessments. Law and policy are not solely the domain of attorneys, judges, and other legal professionals; anyone can be empowered to access public health law. Treating public health law as solely the work of lawyers “misses the fact that public health laws are commonly conceived, promoted, administered, and evaluated by public health professionals and others without JD [juris doctorate] degrees.” ¹⁵

Increasing public health legal literacy is an essential first step in moving toward building competency in public health law among the workforce. This competency is comparable to learning a foreign language to be able to operate effectively in a society. ²⁴ Only when public health practitioners understand the use of law in the context of their professional development can they begin using legal tools to improve and evolve the framework of public health. Practitioners should be empowered to access and use concepts in law to achieve their organizations’ goals. Because an individual’s zip code is a determinant of health, ²⁵ law becomes one of the most powerful tools that public health practitioners with legal competency can use to improve outcomes within and across jurisdictions.

ORCID iD

Brianne Bostian Yassine, PhD, MPH https://orcid.org/0000-0002-0866-2362