Introduction
The debate concerning healthcare is not about to subdue any time soon. With public opinion still divided on the healthcare reform law enacted by the Obama administration, there still is a long way to go to achieve healthcare laws that are acceptable by the vast majority of people. Any changes in healthcare affect healthcare law (Biggs 2010, 3). With the domination of healthcare policy changes in the national agenda, the field is changing rapidly as well. given the important role of the government in the provision of healthcare to its citizens, it’s important therefore to examine the areas in the public healthcare law that help in protecting and promoting health and ensuring the protection of rights of individuals in the processes used to protect and promote health. The above functions of the health law will be analyzed through a review of the derivation of public law, analysis on public healthcare law and civil liberties, examination of the preemption powers of the government as far as health law is concerned, and suggestions on what can be done to ease the confusion and entanglement of healthcare regulations in the country. The analysis will focus on the healthcare laws that exist and how they contribute towards the realization and promotion of quality healthcare services in the country. It’s important to note that the analysis will be done from a legal point of view.
Derivation of Public Law
The body of laws or theory that governs the relationship between individuals and the state is referred to as public law (Kazmier, 2008, p. 50). In many countries including the United States, public law is divided into constitutional law, administrative law, and criminal law. Laws governing healthcare where the government is involved in the provision of those services are therefore public law. In constitutional law, the relationship between the state and the individual comes to the fore. These relationships are defined and specified mostly in written documents that clearly articulate the relationship between government branches like the legislature, judiciary, and the executive. Powers of agencies of administration are defined by administrative law while public behavior is generally regulated by statutory law.
Public healthcare laws are made through acts of Congress and designated as public laws because most of them deal with the general public. The making of these laws is also subject to considerations such as the bill of rights and civil liberties which may be overridden or ignored in the making of public health laws. These laws spell out the roles that both the government and individuals play in the provision of healthcare and how people’s rights to privacy, safety, and freedom can be safeguarded (Kazmier, 2008, p. 55).
Public Healthcare Law and Civil Liberty
As said earlier, the making of public laws concerning healthcare must put into consideration the rights and civil liberties of individuals. Civil liberties are the legal and constitutional protections individuals are given from government actions. More often than not, the courts help in the constitutional interpretation of civil liberties as enshrined in the constitution and as they may vary from time to time concerning healthcare laws (Harris, 2008, p. 67).
While healthcare and civil liberties may appear to have fewer connections, in reality, the two have delicate entangles that if not carefully addressed lead to infringement of the rights of individuals. Considering the powers given to healthcare providers and organs such as the Centers for Disease Control, it is easy for individual freedoms and civil liberties to be infringed in the name of promoting the healthcare interests of the public.
For a long time, there has been concern that the intervention of public health programs focuses too much on individual behavior and personal responsibility instead of approaching the public healthcare problems through the social and environmental causes of health breakdowns angle. In effect, there may be a burden placed on individuals that in one way or the other will contravene the rights and civil liberties of the individual. Moreover, many civil rights attorneys dealing with public health issues feel individuals are better placed to deliver sound judgment on their health issues as opposed to the public bodies charged with such responsibilities. Some of the areas that are addressed by such laws include involuntary testing of patients with or without their knowledge, passing of individual private information that is maybe acquired for purposes of research, and isolation of patients that are thought to bear a high risk of transmitting infectious disease pathogens to the rest of the population. In the latter for instance, isolation may make a patient feel discriminated against but on the other hand, it’s for the good of the public. As such, there are numerous overlaps between the public healthcare laws and the rights of individuals. It’s therefore a sensitive area that needs a careful approach and delicate balance between the promotion of public health while at the same time upholding individual civil liberties.
Government Preemption
Regardless of the law that is under consideration, the US constitution has a Supremacy Clause that enables federal laws to take precedence over state laws. The constitution supremacy clause empowers the preemption of state laws by the federal laws including healthcare if the law of the state is inconsistent with federal law. At a more local level, the state law may preempt a local law that is in the same field and is inconsistent with state law. According to Cruz (2001, p. 144), preemption can either be expressed or implied. In express preemption, congress challenges a state law that is inconsistent with federal law, and the courts help in determining if for a fact the state law under consideration is the one targeted. Implied preemption on the other hand involves complex processes that come up if the conflict presented by the federal law is indirect. It, therefore, warrants the courts to look beyond the express language of the federal law to determine if congress is overstepping its mandate or if it’s frustrating the implementation and enforcement of the state law (Miller, 2006, p. 23).
Preemption applies across the board including in public health laws. After the passage of the healthcare reform law, for instance, many states challenged the law in court. Other states explored options available in the enactment of parallel laws that may have provisions allowing them to escape from the federal reform law. Such circumstances are fertile ground or preemption. If there is a law that is passed by any state that in any way contravenes the healthcare law will be preempted by the federal reform law. It’s assumed that the US constitution guarantees its citizens freedoms unlike other people on earth. When looked at from the field of healthcare, the preemption clause goes a long way on the protection and promotion of health and ensuring the protection of the rights of individuals in the processes used.
Revising the entangled regulations
Besides the federal laws that exist on healthcare, every state has its laws that deal with healthcare issues unique to the state. As earlier said, the field of healthcare is changing and so are the laws. Any loophole that may be identified in the healthcare laws is sealed through legislative acts at the state or federal level. The healthcare reform law is just the latest. As a result, many laws dealing with public health lead to bureaucracies and slow delivery of services in public health. Additionally, these laws are bound to come in the way of the individual rights of the people they are supposed to protect. For instance, there is a considerable feeling among a good number of Americans that the healthcare reform law passed by the Obama administration infringes on people’s rights to choose their preferred healthcare provider. Parts of the law criminalize failure to purchase healthcare insurance as individuals or through an employer. The feeling stems from the fact that the law to some extent forces people to do what they don’t want to do. It also contravenes some provisions of some states’ public health laws. It’s therefore important if there are efforts to harmonize both the federal and state laws and also to repeal some of the existing public health laws.
Harmonization can be done through a single law that is very specific about public health requirements and guarantees to all-state. This law will incorporate all the existing laws with improvements to their provisions. The harmonization must be done through federal legislation because of its ability to impose universal application.
Another strategy that can reduce the public health law regulation entanglement is through the existing laws that in some cases are different versions or duplicates of existing laws. At the same time, some sections of laws that may not be repealed will be amended to incorporate the useful sections of the repealed laws. That way, it’s easier to apply the fewer laws with much more clarity than it is now.
It’s however important to note that any measures that will aim at reducing the regulations in whatever manner will take time and may not result in the desired effect.
Conclusion
Like all public laws, all public health laws are enacted to satisfy a need. It’s should be stressed here that the laws that are enacted serve a very educated and self-conscious public. The rights of the people to be served are stressed. It shouldn’t be forgotten that public healthcare providers have rights as well. The providers more often than not work in risky conditions that expose them to disease-causing pathogens. Promotions of both groups’ rights should be therefore be considered with equal measure. The derivation, government preemption, and revision of existing healthcare laws as discussed in this paper should be put the civil liberties of both groups of participants to the fore. It’s easier to dispense medical services when people’s rights are respected. Furthermore, the public bodies charged with the responsibility of dispensing such services are likely to gain public goodwill in the course of promoting good public health.
References
Biggs, H. (2010). Healthcare research ethics and law: regulation, review and Implementation. NY: Routledge.
Cruz, P. (2001). Comparative healthcare law. London: Sage Publications.
Harris, M.D. (2008). Contemporary issues in healthcare law and ethics. NY: Routledge.
Kazmier, J.L. (2008). Health Care Law – Page 144. NY: McGraw Hill.
Miller, R. (2006). Problems in health care law. Burlington: Cengage Learning.