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BUSINESS OF
federal courts determine the guilt of accused criminals, resolve
private law disputes between individuals, and review actions of
agencies enforcing civil laws — like public health laws. In general,
the lower courts follow the decisions of higher courts, and state
courts review the state’s laws to determine if they violate the state gencies. While you don’t need to be a scholar in Texas public
or federal constitutions. Federal courts review the constitutionality health law, having a basic idea of available Texas resources is
of state and federal laws, and the U.S. Supreme Court’s decisions
bind all state and federal courts.
EMERGENCY SCENARIO
The federal courts and most of the state courts use common
law precedent — which is critical, especially when it comes to de-
cisions that impact public health matters. That precedent estab-
lished by some decision will then bind us in terms of what we can,
or cannot, do in a public health emergency scenario. Probably the
most important public health legal opinion was in the case of Ja-
cobson vs. Massachusetts, 197 U.S. 11 (1905). This 1905 U.S.
Supreme Court case (http://caselaw.lp.findlaw.com/scripts/get-
case.pl?court=US&vol=197&invol=11), concerned an order
based on state statute compelling vaccinations of residents against
small pox after a recent outbreak in Massachusetts. The Cam-
bridge Board of Health ordered the vaccinations, and Henning
Jacobson refused the vaccination and refused to pay the $5 fine.
The U.S. Supreme Court decided that “Upon the principle of
self-defense, of paramount necessity, a community has the right
to protect itself against an epidemic of disease which threatens the
safety of its members.”
With its decision in support of the law, the U.S. Supreme Court
began our modern constitutional approach to disease control law,
which includes the:
• Use of police powers for public health concerns;
• Delegation of certain authorities to health agencies and other
government subdivisions; and
• Use of actions limiting liberty for well-established public
health interventions.
More importantly, the Jacobson case addressed the balancing
of public good vs. individual rights — a concept that physicians
and healthcare leaders must address as we face future public health
matters.
MEDICINE
TEXAS PERSPECTIVE
Every state does things in its own unique way regarding pub-
lic health law, especially as the law relates to public health emer-
critical. One of our favorite resources is the Community Pre-
paredness section of the Texas Department of State Health
Services (www.dshs.state.tx.us/commprep). This site is very user
friendly and contains a tremendous amount of source material
and background publications. Another great source is the Uni-
versity of Houston Law Center’s Health Law and Policy Insti-
tute’s bench book designed for judges, entitled Control
Measures and Public Health Emergencies
(www.law.uh.edu/healthlaw/#). This book provides a compre-
hensive summary and simplifies public health law, federalism,
executive branch authority in Texas, and judicial authority in
Texas, regarding public health emergencies. Finally, all physi-
cians should be familiar with the City of San Antonio’s Metro-
politan Health District website, and specifically its link at
www.sanantonio.gov/Health/EmergencyManagement.aspx,
which has important contact information for reporting public
health emergencies. We hope these resources will be a help to
you when facing an everyday, or unusually daunting, public
health challenge.
Joseph B. Topinka, JD, MBA, MHA, LLM,
FACHE, FHFMA is a recently retired military
attorney whose focus is on health law. He previ-
ously was an assistant professor in the Army-Bay-
lor Graduate Program in Health and Business
Administration, and has taught as an adjunct
professor at several local universities.
Dana A. Forgione, PhD, CPA, CMA, CFE is
the Janey S. Briscoe Endowed Chair in the Business
of Health at the University of Texas at San Antonio.
He is also an adjunct professor in the School of
Medicine, Department of Cardiothoracic Surgery,
the Department of Pediatrics, and in the School of
Public Health, all at the University of Texas.
visit us at www.bcms.org 31