The Case for Public Health Law: A Q&A with Professor Jennifer Bard

It is always a pleasure to showcase one of our co-bloggers!

Professor Jennifer Bard was featured recently by Public Health Newswire in a piece that explains the effects of public health law, the intersection between public health law and public health agencies, her exciting new research and the future of health law.

APHA member Jennifer Bard, JD, PhD, MPH, was recently selected for the Scholars in Residence Program, an initiative funded by the Robert Wood Johnson Foundation and administered by the Network for Public Health Law to advance RWJF’s over-all mission of improving both the health of everyone in America and their health care—how it’s delivered, how it’s paid for, and how well it does for patients and their families. It is designed specifically for law professors to apply their expertise by assisting state, local or national public health agencies in tackling critical issues. One of six scholars chosen for the distinguished fellowship, Bard will work with local health officials in Lubbock, Texas, to explore legal options to address bed bugs. Learn more about her work and the opportunities that exist for the law to improve public health. 

How has law improved public health over the past decade?

A number of new federal laws over the past decade are starting to contribute enormously to improving the public’s health.  One example is the new food safety laws.  Another is finally extending the FDA’s jurisdiction to include tobacco.  As another example, some of the most dramatic improvements in public health have come from changes in laws regarding waste disposal.

What are some pressing public health concerns where the law can play a significant role?

 

The law has the potential of playing a significant role in establishing safety standards and in regulating conduct.  The question is, though, whether merely creating standards or rules will actually result in improvements to public health.  There has always been a substantial disconnect in law between drafting laws and actually effectuating change because, in the end, for laws to work people must follow them.  There is also always the danger that a legislative change will bring about unintended negative consequences.  For example, laws that seek to improve prenatal health by assessing penalties for destructive maternal behavior like taking drugs or smoking also have the unintended effect of discouraging pregnant women from seeking out health care.

As part of your fellowship project, you’ll be engaged in legal research on bed bugs. Can you talk about some of the public health legal issues surrounding these nuisance vectors?

This is a time of change in how science, government and the public view Cimex Lectularius, also known as bed bugs. If nothing else, they serve as a warning about the ability of insects to adapt to pesticides. Bed bugs were essentially gone from the continental U.S. by the 1960s and now they are back with a substantial resistance to available control agents. Are they a nuisance vector which poses little danger to human health, like swarms of Cicadas? Or are they a true disease carrying vector like, mosquitoes and mice? The bite of a bed bug, itself, is not a significant hazard, but if that bite transmits a blood born disease like MRSA from one person to another, then they could become a major threat.

Current legislation is based on characterizing bed bugs as an annoying nuisance.  But a joint task force of the Centers for Disease Control and Prevention and the U.S. Environmental Protection Agency is working to study them further.  Some scientists believe that they are indeed vectors of blood born disease—and therefore pose an immediate health hazard to those exposed to them. But even if that is the case, the answer can’t be to saturate with pesticides places where people, especially children, sleep. So the EPA plays a major role in recommending changes to statutes regulating pesticide formulations and especially the way they are labeled for use.

What specific perspectives and insights do you hope to gain by working with a health department?

What I hope to get, and am already getting, is a hands-on understanding of the challenges of enforcing public health law in a municipal setting. It is one thing to monitor safety procedures in a large factory and quite another to do so in a restaurant kitchen with constant staff changes.  A health inspector is just as much of an educator and persuader as enforcer because it is so important that food be prepared and served safely when the inspector is not there.  While at some point it may be necessary to threaten or even fine, what I have seen is that it is far more effective to persuade and teach. One advantage of overseeing public health at the municipal level is that the restaurants, hotels and other entities dealing with the public want to satisfy their customers.  Here in Lubbock, one of the most avidly followed features on the local news is the weekly broadcast of the health department’s restaurant violations.

What I also hope to experience, and be able to incorporate into my teaching, is the inherent conflict among the regulated and the regulators. While both are interested in serving the public, it is certainly true that health and safety regulations add to the cost of doing business. Where’s the balance between promoting small business, allowing the public to make its own decisions about safety and enforcing regulations based on scientific evidence? People tend to either minimize the risk they face from things like processed foods or worse, assume that if it is available for sale it must be safe.

What do you think, based on your experience, will be the next big focus/area in the field of public health law in the future? Why?

I think one of the most important things that needs to happen in public health law is for there to be a better understanding among those interested in using the law to improve  environmental health. Although, of course, within public health we have always recognized the primary relationship between human health and the environment in which humans live, the relationship is not as close within the law.

What interests you about the intersection of law and public health?

The faculty at the University of Connecticut’s Master of Public Health Program gave me an excellent grounding in the core disciplines, and I consider public health the lens through which I teach and study law. In general, public health has been a much neglected area of the law—so much so that there is no obvious definition.  My students taking a public health law are always surprised to learn the subject matters it encompasses in a way that they are not surprised when they take a course in Family Law or Oil & Gas Law or even Health Law. You can see how new public health law is as a field by the fact that the professors who have laid the foundations for it as a subject area are very much alive and productive.

Public Health Law is a mixture of Constitutional Law, Administrative Law, and Tort Law. For instance, when the government makes people get vaccinations or wear seat belts it directly confronts fundamental Constitutional liberties protecting individual freedom. The same is true when it comes to taking of property such as closing a restaurant or condemning a building. Another equally important area, though, is Public Health Law as a branch of Administrative Law, which is the body of legal principles governing agencies. Administrative law questions include the boundary between the authority of the legislature to pass laws and the executive branch to develop and then enforce rules. Do rules actually serve the purpose of the adopted legislation?  And what are the rights of an individual or business that faces a fine or even a jail sentence?  When do they get a full court-style hearing? Are they entitled to counsel?  Administrative law focuses on these issues. Finally, there is the Tort system, where private disputes, including those between individuals and companies are resolved.

Bard is also a Clinical Professor (adjunct) at the Texas Tech University Health Sciences Center, Department of Psychiatry.   Currently, Texas Tech is working to launch an MPH program through the Health Sciences Center’s Department of Graduate School of Biomedical Sciences.  She teaches public health law at the law school every other year.

[KVT]