Legal Work of Public Health Professionals: The Case for Better Professional Education

Law is a tool of intervention, a source of authority to influence public health, and a powerful force shaping health and the social determinants of health. ¹ The argument often follows that public health professionals must have basic knowledge about the law and the structure of the US legal system. That is true; actually, every citizen ought to possess this basic knowledge. That knowledge of “law on the books” is, however, just the first thing to know about law in public health. People working in public health—whether in public health agencies, nongovernmental organizations, health systems, research, and even biomedical sciences—can expect to carry out a variety of tasks that involve law, often without the assistance or even involvement of lawyers. These legal tasks require competencies of knowledge and skill beyond merely knowing the Bill of Rights and how a bill becomes a law.

This is the first of several commentaries that will consider legal functions in public health work and what sort of training public health professionals need to do that work. This commentary focuses on the first matter—how law pervades public health practice and research. It aims to make the case that public heath law is not just a body of knowledge but also a set of skills that public health professionals need to be taught. Legal action is so basic a part of the job that the accreditation standards for public health agencies require the capacity to “create, champion, and implement . . . laws that impact health” and then to “utilize legal and regulatory actions” to implement them. ² Beyond the vital work of public health agencies, the broader public health workforce is so often the target of legal and policy challenges that basic training on legal powers and processes must be a core element of public health curricula and training programs.

Developing, enacting, implementing, and properly evaluating health law is a multifaceted undertaking, only part of which involves the kind of doctrinal and procedural expertise possessed by lawyers. Law-related work in public health starts with developing policy ideas inside and outside of government. Public health professionals—when faced with unhealthy conditions, new technologies, or opportunities to create breakthroughs in population health—frequently turn to legal action. This demands epidemiologic, behavioral, and technical knowledge to understand the problem. While we can expect that health professionals will have the capacity to get and analyze the relevant data, policy development also involves engaging with affected communities and recognizing that policy development can be a mechanism for developing power and agency for a community. In any case, understanding the problem is only half the matter. To respond with policy and develop a range of plausible options for influencing the situation, public health professionals have to understand how solutions work. To be creative, public health professionals require a broad sense of their legal options and the ways in which law works to change individual and organizational behavior. They need to understand that law can work by providing information, changing social norms, influencing costs, or triggering a sense of social duty—to name just a few mechanisms. ³ They also require an understanding of how law can fail, for example, by provoking a social or political backlash rooted in specific objections to the required behavior or generalized resistance to being told what to do. Lawyers themselves are rarely trained in the behavioral science of law and—importantly—are often not in the room when health policy ideas are being developed.

Once a decision has been made to deploy a law for public health purposes, the exact legal instrument must be chosen and the law must be written. This might seem like a quintessential lawyer task—and it certainly requires lawyers to apply their professional expertise in considering the authority to act, the constitutionality, the risks of adverse court action, and the nature of the evidence that the health agency should prepare to support its proposal. Still, public health professionals have much to offer at this stage to ensure that laws are written with equity, enforceability, and public health evidence in mind. ⁴ They know what they are trying to accomplish and so can help lawyers capture the necessary requirements in legal text. Health officials are probably the ones who will implement the law, so their input in setting terms and procedures that are realistic and feasible is indispensable. Moreover, putting a policy idea into legal form is not a purely technical matter. Health officials may have a greater focus on capturing the law’s health purpose and procedures, while politicians may be more focused on getting enough votes to pass the law. A technical lens and a political lens are useful, and public health officials should be able to manage both. Public health leaders often have relevant professional experience with the policy makers and interest groups who will have to support the new law, and their political knowledge may provide useful guidance in selecting the right type and scope of rule to propose.

Once a policy idea has been selected and cast in a sound legal form, it must be enacted by a legislative body or issued as a regulation or executive order by the responsible official or agency. The enactment of a law is a political matter: regulations and orders may be affected by politics, but they may also involve intricate procedures for public and legislative review, which nonlawyers may be closely involved with. We should be—but are not—training public health graduates to understand not just their regulatory authority and its legal limitations but also how successful regulators can secure compliance efficiently and fairly. ⁵ It is a truism that government officials do not lobby for legislation, but it is just as true that they can be important players in the process of getting a policy into law. Public health officials may be part of internal strategy sessions with the governor or mayor; they may be asked by legislators to provide testimony or other information. Public health officials may and often do provide information to the public about the problem that the legislation aims to address that may shape the enactment process. Outside government, public health professionals whose work involves serving particular communities, causes, or industries will often be the prime advocates for health policies. In these ways, public health professionals play important roles in the enactment of laws and regulations.

The enactment of a law, as difficult as it can be, is only the end of the beginning of its life cycle. To be effective, laws have to be obeyed and enforced. Restaurants have to be inspected, and compliance with school vaccination rules must be tracked. Health professionals in industry and health systems must understand how to manage compliance. Lawyers are rarely involved in enforcement and compliance work, coming in only when things have gone badly wrong. Enforcing regulations requires significant skills in creating or crafting the substance of the standards and in diplomatically promoting compliance as efficiently as possible. ⁶ It is fair to add that these skills are not currently being taught in the majority of public health programs.

Some policies win enactment in the legislature or the regulatory agency only to face the filing of lawsuits to invalidate the law, and these suits are often nested within a broader effort to delegitimize the measure in the court of public opinion. Lawyers will be the ones defending the measure in court, but they will need evidence and arguments from health professionals. Outside the courtroom, it is often health officials who are called on to defend the law in the media and to forestall political backlash. We saw during the COVID-19 pandemic how vital effective communications could be in sustaining a legal approach—and how difficult. ⁷

Finally, when the law has been put to work, a basic public health ethic should be to measure whether the law is having the intended effect and to detect the presence of unintended effects, such as inequitable enforcement or outcomes. Although lawyers have important things to add to the evaluation process, particularly in measuring and tracking the exposure to law, people with public health training are typically the ones who are designing, conducting, reviewing, editing, and publishing implementation and evaluation studies. The field of legal epidemiology has grown up in the past 15 years as a vehicle for encouraging more and better evaluation of laws, ⁸ but there is reason to believe that the training job is far from done.^9,10

Almost a decade ago, a group of lawyers concerned about the performance of this range of law-related activities in public health created a framework: the 5 essential public health law services (5EPHLS). ¹¹ Thought of as a specification of the policy services in the 10 essential public health services, ¹² the 5EPHLS deployed the same theory of change: to improve service delivery, the public health system must define the services that it is meant to deliver, measure whether services are being delivered, and determine how to improve their delivery. The 5EPHLS framework serves to specify the skills and knowledge that public health professionals need to carry out their law-related work:

• Being able to integrate public health and community knowledge and understanding how law influences behavior and attitudes in policy development

• Understanding how public health professionals can support the legal work of framing a policy measure as a legal instrument by generating evidence, contributing political insight, and preparing for effective implementation

• Playing a positive role in securing the enactment of a new law through advocacy, information, or effective participation in the regulatory approval process

• Effectively enforcing laws and regulations and vigorously defending public health laws and regulations in courts of law and public opinion

• Conducting timely policy surveillance, implementation, and outcome evaluation (legal epidemiology) to determine whether laws are achieving their intended goals and whether inequities and other harmful side effects have occurred.

So how are we doing in practice? Not well. ChangeLab Solutions and the Centers for Disease Control and Prevention recently found that “of 190 accredited schools and programs of public health across the United States that offer a master of public health degree, only 17% offer a course dedicated to public health law.” ¹³ Given the broad definitions used in the survey, 17% probably overstated the extent of training. The most common “law” topic was ethics, and only 13 schools and programs of public health had a course related to public health law that was required for graduation. Key informants pointed to a lack of faculty expertise as a major impediment to more and better courses. On the slightly bright side, the report focused on law as doctrine and process. It did not investigate the kind of skills included in the 5EPHLS. Students may have access to “policy” courses that provide education on regulations particular to certain health topics and some training in policy development, advocacy, and evaluation. Students may learn in their epidemiology training how law operates as a structural factor in public health ¹⁴ and may even encounter law-heavy frameworks, such as the commercial determinants of health. ¹⁵

The breadth of skills and expertise that graduates of public health programs should have to manage legal matters in public health must involve knowledge of legal structures and services, as well as social and behavioral science, economics, politics, ethics, and equity. To the extent that these skills have not been acquired in professional training, they should be introduced and reinforced in continuing professional education and capacity-building activities. Law in public health has to be understood, taught, and practiced as an engaged, transdisciplinary enterprise. We aim to describe what that looks like in future commentaries.