In October 2012, I had the privilege of attending the 2012 Public Health Law Conference: Practical Approaches to Critical Challenges, via a scholarship generously provided by The Network for Public Health Law. Although I am an attorney, a historian, and a public health ethicist, my legal experience did not include formal public health law practice. Accordingly, it was eye-opening and more than a bit humbling to listen to and learn from public health lawyers in the trenches, as well as from professionals doing empirical research on the effects of public health laws and policies.

Despite the rich exchange and the forging of new connections with bright, passionate, and engaged public health care professionals, a sense of unease began to build as the conference lengthened. Eventually, I identified the source of the discomfort: I had difficulty locating discussion of the big, fundamental "oughtness" law and policy questions. The vast majority of the substantive work of the conference centered on the day-to-day operations of public health practice. This is no criticism in itself; the vibrancy of public health law as a field is in no small part attributable to the capacities of both public health lawyers and public health law researchers both to illuminate key features of public health practice and to document the impact of existing or contemplated laws and policies on meaningful health outcomes.1

But there is nevertheless a danger lurking in the pursuit of public health law-whether practice or research-primarily in terms of its relevance to public health practice, as the latter happens on the ground. The danger is the is-ought fallacy. Namely, the mere fact that public health policy and practice is a certain way does not imply that such policy and practice is what it ought to be. So the very granularity that is one of the major strengths of public health law also poses a risk insofar as it can in theory deflect or at least relegate to the background crucial normative questions related to what priorities, practices, and policies ought to define the scope of public health. It is difficult to measure the impact of public health laws and policies that have not been implemented, but if there is the epidemiologic evidence suggesting that not-enacted laws and policies might be particularly effective, significant moral questions remain open.

One way of teasing out the difference between these 2 modes of public health law might be to draw a distinction between operational and structural public health laws. Operational public health law, and the study of it, might be said to refer generally to the laws and policies that regulate public health practice at the local, county, state, regional, federal, and global levels. Structural public health law, and the study of it, would tend to refer to the laws and policies that determine health and its distribution in human populations. These 2 categories of public health law do not necessarily overlap as much as one might hope. As some commentators have argued, the basic 6 services that have come to dominate public health practice in the United States are not intimately linked to upstream, macrosocial determinants of health such as socioeconomic status, poor housing, and material deprivation.2-4 For example, while the provision of laboratory services does facilitate essential functions of public health practice, such services arguably do little to alter the conditions in which people live, work, and play. Given the overwhelming evidence that it is these conditions that are the prime determinants of health and its distribution, there is ample basis to argue that a narrow model of public health grounded in the basic 6 services will not have a dramatic impact in improving overall population health or in compressing health inequities.2

Laws and policies fundamental to the discharge of a model of public health that is normatively problematic are a fortiori problematic as well. Just as essential inquiry in public health ethics requires asking what policies and practices ought to be adjudged as of highest priority-rather than simply investigating the propriety of practices consistent with dominant public health modalities-vibrant practices of and research in public health law cannot ignore analysis of whether prevailing laws and policies are the ones that ought to be prioritized in a just social order. It might well be the case that the laws and policies that govern current modes of public health practice are only distantly connected, if at all, to the kinds of broad-based policies that can impact political economies of health and, in so doing, dramatically improve public health.

Of course, the boundaries between operational and structural public health laws are extremely fluid. In any given case, questions about the legal scope of public health practice on the ground may correspond closely to the kinds of laws and policies that the evidence suggests can have an effect on the structural determinants of health. Indeed, bringing operational and structural public health laws into convergence is one goal that public health leaders ought to prioritize. Arguably, the gathering momentum behind a Health in All Policies approach5,6 reflects an attempt to better align laws and policies across the regulatory domain and beyond the basic 6 services that the evidence suggests can have an impact on upstream determinants of population health.

Accordingly, the claim here is not that it is necessary to draw any hard and fast line between operational and structural public health laws. Rather, any use in the distinction stems from its capacity to encourage public health stakeholders to include fundamental moral questions within the ambit of public health law. Such requires consideration not simply of the propriety of existing or contemplated laws, or even primarily analysis of the health impact of such laws and policies (however important such is), but also of what kinds of laws and policies ought to exist in a just social order and of the gap, if any, between the 2 categories of public health law.

The mission of public health is morally charged, and public health law at its most robust can help illuminate what laws and policies should exist and are of highest ethical priority. After all, Sir Thomas More was first and last a lawyer.7

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