Government’s Constitutional Authority To Regulate Public Health

Government’s Constitutional Authority To Regulate Public Health Public Health Law Week 3 John Petrila, J.D., LL.M. Professor USF College of Public Health

Government and the Individual No state shall deprive individuals of life, liberty, or property without due process of law Nor deny to any person within its jurisdiction the equal protection of the laws

Due Process Has a substantive element and A procedural element

Procedural Due Process Element s include Notice Hearing Impartial decision maker Right to present evidence Right to confront witnesses Right to appeal

How Far Does Due Process Go? What are the limits of due process? Source: http://thecolbertreport.cc.com/videos/nzr8wl/the-word---due-or-die

Government Must Show a sound reason for invading personal freedom Provide a fair process

On the Other Hand Does the person have a substantive right? – Some are created by explicit text of Constitution or statute – Others have been created by the courts

Liberty Not Absolute Government may restrict – To protect others – To protect self – To protect the incompetent

How Closely Will the Courts Look? What is the standard of review in judging the validity of the State’s action? Rational basis Intermediate review Strict scrutiny Note: The more important the individual right, and the more the State infringes on the right, the stricter the scrutiny by the courts

Rational Basis

Intermediate Scrutiny

Strict Scrutiny

When To Intervene? The impact of political views When does the benefit to the public’s health outweigh the burden to the individual?

Motor vehicle deaths over time

Steps to Improve Motor Safety Increased mass/volume Better seat belt designs/child restraints Improved fireproofing of fuel tanks Seat belt laws Burstproof latches Collapsible steering wheels Shatterproof window panes Padded dashboards Non-protrusive accessories Reinforced passenger cabins Rear underride absorbers for trucks Energy absorbing fixtures Airbags Drink driving legislation Truck safety standards Updated road design standards Congestion, lower speeds, and risk

Motorcycle Deaths

Mandatory Motorcycle Helmet Laws 1966: Congress requires helmet laws with loss of federal funds as penalty 1975: Congress overturns its requirement 1991: Congress reverses itself, with 3% funding loss as penalty 1995: Congress reverses itself again

Two Competing Views 10,838 lives could have been saved between 1984 and 2004 had all drivers and passengers been helmeted National Highway Traffic Safety Administration We do not want to be told how to behave in matters of personal safety. We do not want to be forced to wear seat belts or helmets because they are good for us. – Robert Ford, before Congress

Gun Deaths and Auto Deaths

Texting While Driving Laws (2014)

How Big of a Problem Is Texting Really?

On the Other Hand

And Back to Texting While Driving

Source: https://www.youtube.com/watch?v HbjSWDwJILs

Some Concluding Questions When should individual freedom give way to government regulation? Is protection of the person enough? How to judge the interests of 3rd parties? How relevant are deaths, injuries, and associated medical and other costs? What form should regulation take?

And finally What do you think about these issues in context of proposals – To regulate texting and driving – To regulate driving by the elderly – To mandate the use of motorcycle helmets