Public health issues
Question 1
Your state has seen falling vaccination rates and public health officials are very concerned about the risks
out outbreaks of diseases like pertussis and measles. Currently your state law provides philosophical and
religious exemption to vaccination. The exemptions are easy to obtain. With the support of the state
Bureau of Health, several legislators are interested in introducing a bill this session t hat would eliminate
all non- medical exemptions to vaccination as a means to protect the public’s health. They have asked
you, as Assistant Attorney General , to provide a memo outlining any constitutional problems that might
arise in changing the law in this way. Please answer the following questions as part of your memo:
1.What are the First Amendment implications in both retaining or eliminating the exemptions
2. Are there any states that allow only medical exemptions What have the courts said about these
laws
3. Consider how Jacobson v Massachusetts or other caselaw apply to this situation
Question 2
Y ou have been appointed by the Governor to a Blue Ribbon Commission on Ethics and
Human Genetic Technologies to study and report on genetics issues in state health policy,
as well as related issues in genetic reproductive technologies. The Governor has asked the
commission to explore the ethical issues and make recommendations on the major issue
currently pending in the state legislature: Should parental informed consent be
required for the state newborn screening program Given that the legislature is
expected to hold hearings within the month, each member of the Commission is
asked to bring a statement of ethical concerns and a short position statement to the
first commission meeting.
You have consulted the director of the city’s department of maternal and child healt h and
learned the following:
The current state law authorizes the state department of health to establish, maintain and
carry out a newborn screening program to detect hypothyroidism, PKU,
hemoglobinopathy, congenital adrenal hyperplasia (CAH), and maple syrup urine disease;
and additionally to provide each infant determined to be at risk with a screening test for
sickle cell diseases. The state legislature currently determines which tests will be
administered under the newborn screening program, with consultation from an advisory
board of the state health department. The newborn screening requirements do not apply to
infants whose parents object for religious or personal reasons. However, parental consent
for newborn screening currently is not required, an d even though newborn testing may not
be conducted over parental objection, virtually no parents raise the issue or object to
testing. Currently only a few states require informed consent (that is, parental permission)
for newborn screening, while about a dozen other states require that before testing is done,
parents must be explicitly informed about newborn screening.
Your health policy analyst provided the following background information about informed
consent.
Analysis of informed consent generally focuses on five elements: competence, disclosure,
understanding, voluntariness, and consent. Ethicists have acknowledged that in some
circumstances obtaining consent that satisfies these rigorous standards may be
excessive or impossible to implement and that an alternate framework based on social or
institutional rules of consent may be appropriate. We can evaluate institutional rules not
only in terms of respect for autonomy but also in terms of the probable consequences of
imposing burdensome requirements on institutions and on professionals, the effect of
alternative consent requirements on efficiency and effectiveness in delivering health care
and advancing science, and the effect of consent requirements on the welfare of patients. In
some circumstances, patients do not expect to be asked for or to give full and rigorous
informed consent, for example, as
with a routine battery of blood tests; consent in these circumstances is presumed or
implied
because testing is routine.
Further background: “Warrants fo r Screening Programs: Public Heath, Legal and Ethical
Frameworks” Faden, Kass and Powers. Public Health Law and Ethics, pp 390 -393.
Question 3
Gun violence is a major public health problem in your community. A recent Supreme Court
case, District of Columbia v. Heller (2008), summarized below, is one of few Supreme Court
Second Amendment cases in recent years. Your city health department has asked you to
review the Heller case and offer your opinion about the implications of this case for
potential gun control efforts. Please answer the following questions:
1. Why was the D.C. handgun ban found unconstitutional in this case
2. Do you agree with the majority or dissent (s) in this case Please base your
position on the court’s interpretation of the law and constitution. This is not a
political position paper.
3. Based on the decision in Heller, what kinds of gun control laws would be
constitutional in your community.
Summary of District of Columbia v. Heller , 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637
(2008)
Handgun possession is banned under District of Columbia (D) law. The law prohibits the
registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all
lawfully owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless
they are being used for lawful recrea tional activities or located in a place of business.
Dick Heller (P) is a special police officer in the District of Columbia. The District refused
Heller’s application to register a handgun he wished to keep in his home. Heller filed this lawsuit
in the Fe deral District Court for the District of Columbia on Second Amendment grounds. Heller
sought an injunction against enforcement of the bar on handgun registration, the licensing
requirement prohibiting the carrying of a firearm in the home without a license , and the trigger -lock requirement insofar as it prohibits the use of functional firearms within the home.
The District Court dismissed Heller’s complaint. The Court of Appeals for the District of
Columbia Circuit reversed and held that the total ban on handguns violated the individual right to
possess firearms under the Second Amendment. The Supreme Court granted certiorari.
Issue:What rights are protected by the Second Amendment
Holding and Rule (Scalia): The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for traditionally lawful
purposes, such as self -defense within the home.
Text of the Second Amendment:A well regulated Militia, being necessary to the security of a
free State , the right of the people to keep and bear Arms, shall not be infringed.
Constitutional Construction (Scalia for the majority): The prefatory clause “A well regulated
Militia, being necessary to the security of a free State” merely announces a purpose. It does not
limit or expand the scope of the operative clause “the right of the people to keep and bear Arms,
shall not be infringed.” The operative clause’s text and history demonstrate that it connotes an
individual right to keep and bear arms.
The militia consisted of all males capable of acting together for the common defense. The
Antifederalists feared that the Federal Government would disarm the people in order to disable
citizen militias, thereby enabling a politicized standing army or a select militia to rule. The
Antifederalists therefore sought to preserve the citizens’ militia by denying Congress the power
to abridge the right of individuals to keep and bear arms.
This interpretation is confirmed by analogous arms-bearing rights adopted in state constitutions
immediately preceding and following the Second Amendment. Furthermore, the drafting history
reveals three proposals that unequivocally referred to an individual right to bear arms.
Interpretation of the Second Amendment by scholars, courts, and l egislators from ratification
through the late 19th century also supports the Court’s interpretation.
No precedent forecloses this interpretation. United States v. Miller limits the type of weapons to
which the right applies to those in common use for lawful purposes, but does not limit the right
to keep and bear arms to militia purposes.
The Second Amendment right is not a right to keep and carry any weapon in any manner and for
any purpose. The Court has upheld gun control legislation including prohibitions on concealed
weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying
of firearms in sensitive places such as schools and government buildings, and laws imposing
conditions and qualifications on the commercial sale of arms. The historical tradition of
prohibiting the carrying of dangerous and unusual weapons supports the holding in United States
v. Miller that the sorts of weapons protected are those in common use at the time.
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second
Amendment. The total ban on handgun possession in the home amounts to a prohibition on an
entire class of arms that Americans overwhelmingly choose for the lawful purpose of self -defense. This prohibition would fail constitutional muster under any standard of scrutiny.
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a
trigg er lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional.
The Court assumes that a license will satisfy Heller’s prayer for relief and therefore does not
address the constitutionality of the licensing requirement. Assuming Heller is not otherwise
disqualified from exercising Second Amendment rights, the District of Columbia must permit
him to register his handgun and must issue him a license to carry it in the home.
Disposition :Affirmed.
Dissent (Stevens): The Second Amendment was adopted to protect the right of the people to
maintain a well regulated militia. It was a response to the concern that the power of Congress to
disarm the state militias and create a national standing army posed an intolerable threat to state
sovereignty. Neither the text of the Second Amendment nor the arguments advanced by its
proponents evidence the slightest interest by the Framers in limiting any legislature’s authority to
regulate private civilian uses of firearms.
There is no indication that the Framers intended to enshrine the common law right of self -defense in the Constitution. The view in Miller that the Second Amendment protects the right to
keep and bear arms for certain military pu rposes, but does not curtail the Legislature’s power to
regulate the nonmilitary use and ownership of weapons, is both the most natural reading of the
Amendment’s text and the interpretation most faithful to the history of its adoption. The majority
fails to identify any new evidence supporting the view that the Amendment was intended to limit
the power of Congress to regulate civilian uses of weapons.
Dissent (Breyer) : The Second Amendment protects militia-related interests, not self -defense-related interests. Furthermore, the Amendment permits government to regulate the interests that
it serves. Colonial history itself offers important examples of the kinds of gun regulation that
citizens would then have thought compatible with the right to keep and bear arms, including
substantial regulation of firearms in urban areas, and regulations that imposed limitations on the
use of firearms for the protection of the home.
Adoption of a true strict scrutiny standard for evaluating gun control regulations would be
impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the
Court normally defers to a legislature’s empirical judgment in matters where a legislature is
likely to have greater expertise and greater institutional fact fi nding capacity.
Question 4
Please read “Who Should Get Influenza Vaccine When Not All Can” by Ezekiel Emanuel and
Alan Wertheimer, Public Health Law and Ethics, pp. 433 -435. This article presents 3 ethical
approaches for distributing scarce vaccines.
Choose one of the approaches for vaccine allocation and support your choice using
one of the ethical frameworks from Chap. 1, Case Studies in Public Health Ethics
(Coughli n).
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