Changing How We Think (and Talk) About Public Health Law

By Scott Burris, JD

Marice Ashe, Donna Levin, Matthew Penn, Michelle Larkin and I have a new piece in the Annual Review of Public Health (also available on SSRN). We set out a “transdisciplinary model of public health law” that encompasses within the core of the field both the traditional public health law practice of lawyers and what we call “legal epidemiology” — all the important public health law functions (from policy design to evaluation) that are typically carried out by people without legal training. I hope you will take a look.

Why this article and a transdisciplinary model? The idea comes out of the experience that the authors have all had trying to promote public health law practice and research. We realized that in spite of the success of the field and its importance to public health, a lot of non-lawyers in public health training, practice and research were uncomfortable with law — even when their work had to do with enforcing it or evaluating its impact.

We realized that we as lawyers were making things worse, by adhering to a traditional view of public health law as purely a practice of lawyers. We found that acknowledging the work of non-lawyers in public health law, conceptualizing key public health law activities in scientific terms, and even borrowing some scientific practices for legal work, were effective ways to change attitudes and improve our impact. Many of us have articles in the pipeline on legal epidemiology, policy surveillance and “the five essential public health law services” that will show the model in action.

I don’t have to tell readers of this blog that public health law is a great field. I hope the concept of transdisciplinary model will help make it a truly integral part of public health.

Read the full article here.

Job Opportunity: Legal Research Associate

Come join our team!

The Public Health Law Research program is hiring legal research associates to work on our policy surveillance project. The legal research associate will conduct legal research using Lexis and Westlaw, build historical law using HeinOnline, and conceptualize legal domains for empirical research. The associate will also code law for the creation of quantitative legal datasets at, and write legal briefs and other materials for

Learn more and apply today!

Tennessee: The Next State to Require Involuntary Outpatient Commitment?

By Bryan Kozusko, JD (Expected graduation: May 2016)

How will Tennessee address involuntary outpatient commitment hereon out? Currently, Tennessee is one of seven states that does not provide for direct involuntary outpatient commitment, pending a final disposition by a court with jurisdiction. According to general involuntary outpatient commitment law, whenever an individual is believed to require such commitment, a final hearing must be held allowing an adjudication on the merits and the establishment of grounds by clear and convincing evidence. The other states that do not allow for this process are Alaska, Connecticut, Kentucky, Maryland, Massachusetts, and New Mexico.

For six years Tennessee legislators have tried, but failed, to successfully implement a permanent statute authorizing direct involuntary outpatient commitment following the disposition of a final commitment hearing. In 2009, Bill H.R. 0297 of the 106th General Assembly passed through the Senate unanimously. Once received by the House, no further action was taken and the bill was never voted on. In 2012, the 107th General Assembly authorized the creation of an involuntary outpatient pilot program to operate two years in Knox County, Tennessee. In 2014, the 108th General Assembly amended their law to terminate the pilot program on June 30, 2015, citing the public welfare of their citizens.

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Second Amendment Rights and Mental Illness

By Mariam Ahmed, JD/MSPP (2016)

In recent years, there have been a multitude of state- and federal-level discussions about how to use law to minimize gun violence as active shooter events increase. During these deliberations, one point that has repeatedly been debated is whether people with mental illness should have their gun possession rights limited.

Here’s how the legal landscape currently looks.

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A needle in a haystack – finding the elusive solution to Indiana’s HIV Outbreak

By Nicolas Wilhelm, JD

Scott County, Indiana, which only has a few thousand residents, has historically had an average of five HIV cases per year. Since December 2014, however, the county has seen an outbreak, with more than 140 newly diagnosed cases. Dr. Jonathan Mermin, the director of the National Center for HIV/AIDs, Viral Hepatitis, STD and TB Prevention at the Center for Disease Control (CDC) calls this “one of the worst documented outbreaks of HIV among IV users in the past two decades.” Dr. Joan Duwve, the chief medical consultant with the Indiana State Department of Health, explained that the abuse of the prescription drug Opana was one of the catalysts for the increase in HIV cases, with some residents injecting it as frequently as 10 times a day, and sharing syringes with other members of their community.

HIV is mainly spread either by sexual contact with another person with HIV, or by sharing needles or syringes with someone who has HIV. One way to reduce the spread of the disease is to implement syringe exchange programs (SEPs) that reduce the transmission of blood-borne pathogens like HIV by providing free sterile syringes and collecting used syringes from injection-drug users (IDUs).

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Webinar, 5/6: Policy Surveillance and Public Health

May 6, 2015 at 12 p.m. ET

Policy surveillance is the ongoing, systematic collection, analysis, and dissemination of data about laws and policies. There is a long tradition of conducting “50 state surveys” to identify laws of public health significance, but the methods for creating these surveys are largely unscientific. Unlike this traditional legal research, policy surveillance uses systematic quantitative and qualitative coding to create scientific datasets and track policies over time. Throughout the past year the Robert Wood Johnson Foundation’s Public Health Law Research program, the Network for Public Health Law, ChangeLab Solutions and the CDC Public Health Law Program have been exploring policy surveillance through a Delphi process and within their programs. This webinar will present the findings from that Delphi study and will explore the role of policy surveillance in understanding the impact of law on public health.

Presenters include:

  • Jennifer Ibrahim, PhD, MPH, Associate Director, Public Health Law Research program, Associate Professor, College of Public Health at Temple University
  • David Presley, JD, Policy Surveillance Manager, Public Health Law Research program
  • Matthew Penn, JD, MLIS, Director, Centers for Disease Control and Prevention, Public Health Law Program
  • Donna Levin, JD, Director, Network for Public Health Law (Moderator)

Register here.

Building on 20 Years of Success: The Future Role of Law

By Scott Burris, JD

On this, the last day of National Public Health Week 2015, we’re looking forward by looking backward. There is nothing new about using law and policy to promote healthier environments, products and behavior. There is no good future for public health that does not include even more, and more effective, legal interventions.

Evan Anderson and I wrote in 2012 about the legal regulation of health-related behavior over the past half-century. The story we told offered several reasons for unabashed optimism about what law can do for health. The record is clear that law works, and works across a wide range of different health threats. We pointed to CDC lists of Great Public Health Achievements from the last century and the first decade of the 21st.   Every one of them — from high levels of vaccination, through motor vehicle safety and cancer prevention to maternal and child health – could not have been successful without law and policy. Continue reading

Making Connections & Collaborating for the Future of Public Health

As part of the Public Health Law Research program’s participation in National Public Health Week 2015, we have been sharing materials and resources under the daily themes. Today’s theme, Building Broader Connections, is about expanding partnerships and making connections to benefit public health.

We spoke with Laura Hitchcock, JD, Policy Research & Development Specialist for Public Health – Seattle & King County and the King County Executive/Department of Executive Services Partnerships Initiative Lead. We asked her to offer some insight from her work as a lawyer and researcher in a public health department.

PHLR: What role can researchers play in building partnerships with health departments and contributing to the policy-making discussion?

Laura Hitchcock, JD

Laura Hitchcock, JD

LH: Public health researchers can help to support development and refinement of evidence-based policies. Because policies are created in a political process, it is important for public health departments to continue to offer their scientific knowledge to support creation of effective policies, including repeal of ineffective policies or refinement of existing policies to better result in a healthy population by 2030. Health departments may need help to define local or state-focused areas for policy evaluation by working together with researchers, and should contribute to development of research agendas by identifying areas where policy makers, communities, medical professionals and others have concerns about the public’s health, and are likely to need support from researchers to know how to ‘plug in’ to research agenda development. Continue reading

Short-Term Emergency Commitment Laws Require Police to Assess Symptoms of Mental Illness

By Leslie Allen, JD

On November 20, 2014, the Public Health Law Research program released a new 50-state dataset analyzing state law governing the short-term emergency commitment process. These laws give law enforcement officers and others the right to involuntarily admit someone into a mental health care facility if they are in danger of harming themselves or others because of a mental illness.

In 47 states, police may take a person into custody without a warrant, and may initiate an emergency psychiatric hold – essentially committing them to a mental health institution without their consent. Recently, the media has increasingly examined how the police interact with the mentally ill (for example, “Police Taught to Spot Signs of Psychiatric Crisis” from FoxNews, republishing from the  Associated Press, “Police Confront Rising Number of Mentally Ill Suspects” from The New YorkTimes, and see “Where the Police are Part of Mental-Health Care” from The Atlantic). Much of the police forces’ relationship with the mentally ill is established by the laws governing civil commitment.

Police officers serve as first responders for mental health crisis treatment by legislation in nearly every state. Continue reading

Medical Marijuana Delivery May Not Be As “Eazy” As It Seems

By Arielle Lusardi, BA, JD/MPH (’17)

As state medical marijuana laws proliferate throughout the country, companies are trying to secure their own piece of the action. In July 2014, a San Francisco-based start-up company, called Eaze, launched a mobile application that facilitates the delivery of medical marijuana in California. Continue reading

Being Blunt About Product Safety: The problems with the lack of uniformity in medical marijuana laws

By Holly Jones, BA, JD candidate

How can the federal government ensure consumer safety in an industry that distributes a substance the federal government classifies as an illegal drug? The federal government effectively banned the use of marijuana nationwide with the Controlled Substance Act of 1970, classifying marijuana as a Schedule I substance according. Regardless of this federal prohibition, 23 states and Washington, DC have legalized marijuana for medical use. A lack of federal legalization allows states to independently enact their own distinct medical marijuana laws.

In a dataset released yesterday on, the distinctions become clear — there are currently 24 variations of medical marijuana program product safety guidelines in the United States, some of which bear little, if any, resemblance to one another. While some states, like Connecticut and Massachusetts, provide incredibly comprehensive guidelines for their medical marijuana programs, others provide skeletal legislation and instead grant a great deal of autonomy to local jurisdictions.

While variation may allow researchers to more effectively evaluate the approaches, from a patient-safety perspective, uniformity has its advantages. Continue reading

McCullen and New York Statewide Coalition: The Erosion of Public Health as a Legal Norm

At first glance, last Thursday’s decisions by the Supreme Court in McCullen v. Coakley and the New York Court of Appeals in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, have little in common. McCullen, which struck down a Massachusetts law establishing a 35 foot buffer zone around reproductive health clinics, was a First Amendment case that dealt with the always contentious issue of abortion. In contrast, N.Y. Statewide Coalition, which upheld a lower court decision striking down a regulation of the New York City Board of Health barring the sale of large portions of sugary soda, was decided on state administrative law grounds, with the court finding that the Board exceeded its authority.

On closer inspection, however, the two cases share several features in addition to their date of decision. One is the failure to give substantial weight to the state’s interest in protection health. In his opinion for the Court in McCullen, Chief Justice Roberts accepted that the buffer zone law was content neutral and therefore not subject to strict scrutiny. Nevertheless, a unanimous Court held that the Massachusetts law was not narrowly tailored to serve the government interests of protecting public safety and access to health care. In reaching this decision, the Court focused on the “toll” that the buffer zone placed on the abortion opponents who tried to dissuade woman from having abortion, rather than the impact of the lack of such a zone on woman seeking reproductive health care. Equally important, the Court showed no willingness to defer to the state’s contentions that alternative regulatory approaches had proved unsatisfactory. Rather the Court insisted that given “the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked.”

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A Tale of Two Polities (Revisited)

By Hosea H. HarveyPh.D., JD

About a year ago, my colleague Scott Burris blogged on this forum about the two polities of public health that compete for our visions – one view sees public health as “incredibly popular with citizens and lawmakers” and the other as the despised “nanny state.” Burris suggested that the former view is largely the truth, but the latter view is driving budgets and policymaking. His action plan centered on mobilizing public support for public health initiatives rooted in sound science, and engaging battles over public health law budgets and lawmaking. To do so, he recommended, among other things: a) that ideological or economic arguments against public health initiatives be challenged with data and science, including collaborations with state public health agencies, b) that legislators be supported more vigorously with real public opinion data and evidence, and c) improved normative work by law professors to develop a proactive intellectual, cultural, and political framework to evaluate, and perhaps influence, public health law interventions.

With respect to my own area of expertise, three recent developments seem designed to provide responses to Burris’s clarion call. First, the LawAtlas policy surveillance web portal has expanded significantly over the past year and has become a one-stop shop for public health law advocates and lawmakers to objectively evaluate existing public health law interventions and to learn about key elements of such laws. LawAtlas, as readers of this blog know, has expanded from an initial public health law surveillance of four broad public health law regimes to more than 20 datasets covering laws at a variety of levels – some statewide, as in my work on youth sports TBI laws, and some at a county or community-level such as the Seattle and King County public health law surveillance tool, which tracks policies adopted by local governments, public sector institutions, and private organizations in King County, Washington. My own policy surveillance portal, which has been substantially revised and re-launched this week, is one tool that contributes data to conversations that can too often be overrun by politics and emotion. Whether on LawAtlas, or in other forums, perhaps countering political noise with raw data will help reduce the level of misinformation in this policy space and promote a more reinvigorated evidence-based approach to public health lawmaking.

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National Conference on HIV Criminalization

By Sterling Johnson, JD

Grinnell College in Iowa will host the first National Conference on HIV Criminalization next week, June 2-5 on its campus.

One of the stated goals of the conference will be to discuss the recent legislative changes in Iowa and how to apply the lessons to other states with laws that apply specifically to people with HIV.

Currently, 43 states criminalize actions by HIV-positive individuals. Check out our map at for more details.

US states with HIV criminalization laws

In 2009, Iowa became the center of this battle when Nick Rhoades, who is HIV-positive, had a one-time sexual encounter with another man, Adam Plendl. Three months after, Mr. Rhoades was arrested on suspicion of engaging in intimate contact without disclosing his HIV-positive status. At the time of the sexual encounter, he used a condom, had an undetectable viral load and his sexual partner did not contract HIV; however, Nick Rhoades was sentenced to 25 years in prison and classified as a sex offender. The case is now is now on appeal and being argued by Lambda Legal. The Iowa court of Appeals affirmed the conviction and the case is now under review by the Iowa Supreme Court. Mr. Rhoades’s case led to community organizers lobbying to reform the HIV criminalization law in Iowa. Continue reading

Research Round-Up: New Publications from the PHLR SciVal Experts Community

In honor of last week’s National Public Health Week, we have a lot of fresh, new PHLR. The latest crop of papers from public health law researchers touch on a number of important points and issues including transportation safety, implementation, tobacco control, and media presentation of public health law. Check out Scott Burris’s brief summaries after the jump!

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Evidence in Policy Innovation

In the last few decades, there has been a broad effort to strengthen the use of evidence-based law as a tool for the promotion of population health. There are two major fronts in the campaign, each essential, and both largely successful, though much work also remains. One aims to increase the quantity and quality of empirical research on the health effects of existing policy choices. The other focuses on how best to get such knowledge into action in the form of policy and practice. In a new PHLR Theory Practice and Evidence paper, Evan Anderson and I draw attention to a third front: the formulation of new legal interventions. Though policy experimentation is inevitable, it has been the subject of relatively little systematic study. For proponents of evidence-based public health law, policy experimentation presents a paradox: if a legal intervention is truly innovative, there will not yet be direct evidence of its impact. Yet direct evidence from policy evaluations is never the only source of research knowledge relevant to a policy decision, even under conditions of novelty and uncertainty. And few interventions are truly new in a broad sense; in most instances, similarly designed laws have been deployed before, just not for the same specific purpose.

We use the case of youth sports concussion and Washington’s Lystedt Law as a case study of how even new legal strategies dealing with new problems can be built on evidence. We show  how evidence about the problem lawmakers are addressing, combined with widely-used analytic tools like the Haddon Matrix and an understanding of the generic mechanisms through which law influences behavior and outcomes, can bring existing research knowledge into the crafting of even very innovative legal interventions for newly perceived problems.  While we don’t expect the policy sausage factory to suddenly start looking like a research lab, there’s no question that legislators typically care about getting policy right and want evidence.  The point of our paper is to get the research world to think about ways we can help even when no one has yet studied the specific law at issue.

PADs elevator speech

By Jeffrey Swanson, PhD

Effective salespeople often practice something called an “elevator speech,”—a clear, persuasive pitch for their product that’s so succinct they can deliver it on the ride between the lobby and the mezzanine.  Recently I found myself giving exactly such an impromptu presentation, literally on an elevator in a conference hotel in Atlanta, trying to explain to a fellow conferencista the nature and significance of our study with Assertive Community Treatment (ACT) teams implementing Psychiatric Advance Directives (PADs) in North Carolina.

“So, there are these legal documents called psychiatric advance directives, or PADs,” I said.  (We were attending the annual conference of the Robert Wood Johnson Foundation’s Public Health Law Research Program; she wasn’t a mental health specialist.)  “They’re similar to ‘living wills’ but they’re for people with serious mental illnesses who want to plan ahead for their own treatment during a future mental health crisis.  At a time when they’re feeling well, people can complete a PAD to document their treatment choices and preferences and also appoint someone they trust to make treatment decisions for them.  Ideally, PADs are a ‘recovery tool’ that helps people to obtain treatment they prefer—something that works for them during a mental health crisis—including medication and hospitalization, when needed, but without involuntary commitment. In the meantime, PADs can help clear the lines of communication between the person with mental illness and clinicians and even family members; just the exercise of completing one of these documents can make people feel more in control of their own lives, and give them some peace of mind.”

“Wow!  That’s the best new idea I’ve heard all day,” my elevator-companion responded.  Just then the elevator doors opened on the hotel lobby and the ride was over.  Unfortunately, my speech was just getting started; I guess I’d make a terrible salesperson. But now my new friend seemed interested and didn’t walk away, and so we stood there in the lobby and I kept talking.

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New PHLR (and George) Papers

Laura Brennan, Ross Brownson and Tracey Orleans have come out with an important paper reviewing the evidence on policy and environmental strategies for reducing childhood obesity. Twenty-four strategies and 2000 published and gray literature documents are covered.  This is a menu of more-or-less evidence backed ideas for intervention.

Sam Harper and colleagues come out with an interesting new argument for primary seat belt laws, based on a disparities analysis. Looking through the lens of education level, they  (well, we, since I am one of the authors) find that, while primary enforcement has a powerful affect at every educational level, the impact is greater on people with less education.  Thus, existing SES differentials in seat belt use could be reduced if all states (finally) went to primary enforcement.

Even kids like paternalism?  Well, that may not be the best interpretation of this next study. Williams and McCartt surveyed New Jersey teenagers about three GDL requirements that are unique to that state: minimum licensing age of 17; application of full GDL rules to beginners younger than 21; and requiring license status decals on vehicle plates of GDL drivers.  84% liked licensing at 17, and 77% approved applying Gthe rules even to older novices.  The decal policy was approved by only 23% — but a PHLR study showed it works, so I say get used to it.

Two new tobacco law studies round out the week’s harvest.  Heikki et al. map the diffusion of health warning regulations since 1966, showing a big impact of the FCTC. Finally, in a paper that may start some arguments, Kevin Callison and Robert Kaestner report that adult smokers may not be as responsive to cigarette taxes as many believe.  They suggest it will take increases on the order of 100% to get a further 5% reduction in smoking rates.  Well, I’m okay with that.

Over on the George side of things, Peter Jacobson and Wendy Parmet have posted a thoughtful response to Larry Gostin’s Bloomberg commentary in the Hastings Center Report.  They are helping us move away from a habitual application of the paternalism critique and reminding us that public health can play in the democracy sandbox pretty well.

A New Way to Keep Up with New PHLR

This week, PHLR launched its SciVal Experts PHLR Community website.  The core of the site is publications and other information for 300 leading public health law researchers doing empirical evaluations of the impact of laws and legal practices on health. The SciVal system allows visitors to find experts by topic, to trace their institutional and individual networks, and to find the latest publications in the field.

We encourage you to visit the site and explore for yourself, but we’ll also begin periodically sharing batches of publications on this blog.

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