Infrastructural Law: The Lesser-Known Cousin

by Jennifer Ibrahim, PhD, MPH

An article by Julia Costich, MPA, JD, PhD, and Dana Patton, PhD, in the October 2012 edition of the American Journal of Public Health reveals the tip of the iceberg on a highly discussed and yet insufficiently researched topic: the legal infrastructure. While the team reports a significant impact of the legal infrastructure of local health departments on population health outcomes, the paper also raises questions regarding the role of law more generally in the functioning of health departments.

While we “see” law all the time in action, we rarely “see” law as an important factor influencing the way health agencies operate. Sure, we understand law as a way to drive the behavior of individuals by regulating sugar-sweetened beverages or prohibiting texting while driving or preventing smoking in indoor spaces — this is called interventional law — but there is a lesser-known cousin, infrastructural law, that desperately needs our attention.

While public health officials, policy-makers, advocates and academics regularly discuss the funding and organization of health departments at both the state and local levels, they less often step back to think about what is driving the process — law. As states are facing significant fiscal crisis, funds are a major concern, but it is important to remember that appropriations are made through law. Additionally, in recent years, during natural disasters such as hurricanes in the south and major floods in New England, there were questions in the news about which agencies should be doing what and when. The authority for a health department to act and/or to act in concert with another agency is derived from law.

Researchers need to begin to think more directly about law in public health systems and services; the lack of legal authority may prohibit a health agency from carrying out an action, rather than deeming this a flaw in the quality of services provided. Research in this area can also shed light on instances where health agencies perceive themselves to be limited in ability to act, but there is nothing in the law that explicitly prohibits action. Similarly, the threat of litigation — or “legal chill” — may deter innovative action by health agencies when in fact there is no viable liability.

In the June 2010 edition of Milbank Quarterly, my colleagues and I articulate a framework for the integration of law into the field of public health systems and services research in the hopes of driving new research and revising previous studies that had not explicitly considered the role of law. Such evidence could help drive practice and empower heath agencies to more effectively tackle the pubic heath issues of the day.

A period of public health law enlightenment is in order to bring evidence to bear on the role of law in the provision of essential services in public health. Only by interpreting the existing law and studying the way that health officials understand law and use or avoid the law, can we actually see the law and use it to advance the mission of health departments to protect population health.

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