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Revisiting the Renaissance in Public Health Law

Published online by Cambridge University Press:  01 January 2021

James G. Hodge Jr.
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Type
Columns: Public Health and the Law
Information
Journal of Law, Medicine & Ethics , Volume 46 , Issue 4: Next Steps in Health Reform , Winter 2018, pp. 1031 - 1033
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018
About This Column

James G. Hodge, Jr., J.D., LL.M., serves as the section editor for Public Health and the Law. He is the Professor of Public Health Law and Ethics at the Sandra Day O'Connor College of Law and Director of the Center for Public Health Law and Policy (CPHLP) at Arizona State University.

In the late 1990s scholars and policymakers began championing the “renaissance” in public health law and policy.Reference Gostin1 Consistent with this conception, law was positioned as a distinct tool to affirmatively improve health outcomes. This notion was not necessarily new. Laws have been used for centuries to address public health threats.Reference Hodge2 The ingeniousness of the renaissance movement was how law was re-cast to improve community outcomes while respecting individual rights. Antiquated federal and state laws featuring heavy-handed approaches under the guise of public health were reformed. Enlightened, well-crafted model law approaches and jurisprudence balanced communal and individual interests. As public health leaders and lawmakers worked to reach a healthier legal equilibrium they helped achieve a healthier population.

Remarkable transformations in public health laws and policies stemming from the renaissance, however, are at significant risk. Rollbacks, rescissions, and repudiations of solidified public health principles and “best practices” have dominated modern political agendas at the federal, state, and local levels.Reference Hodge3 National health law reforms extending access and coverage for millions of Americans are under siege. Preemptive efforts to stymie local public health innovations are a common tactic among some federal and state lawmakers.Reference Hodge, Corbett, Weidenaar and Wetter4 Public health budgets have been decimated to promote political views despite massive long-term impacts on individual health.Reference Hodge5 Public health sciences are debunked or ignored in favor of big industry interests.Reference Gostin, Hodge and Johnson6

Too often public health efforts garner scant public attention. Americans demand fair access to health services, especially when they need them most, but may be apathetic to underlying public health policies.Reference Gostin7 They want the benefits of herd immunity so long as they do not have to personally face the perceived risk of vaccines.Reference Barraza8 They want safe highways but do not want to have to wear motorcycle helmets, observe speed limits, or avoid cell phone use while driving. They want significant controls over opioids applied to others so long as treatment for their specific pains is provided.Reference Gostin, Hodge and Noe9 In essence, people want the benefits of public health services, just not the burdens. Consequently, achieving healthy societies is often accomplished through the lowest cost, least intrusive, and most efficacious means possible.

Diminution of the renaissance in public health law, however, is not due only to political aversions, dwindling budgets, or public apathy. As explained below, other contributing developments include: (1) discretionary adherence to the rule of law; (2) scientific validation of legal interventions; (3) expansion of the public health mission; and (4) legal failures to provide core public health services.

Discretionary Adherence to the Rule of Law

In an August 2018 editorial in the New York Times, health law professors Nic Bagley and Abbe Gluck rightfully argue that the Trump administration has abdicated its responsibility to enforce the Affordable Care Act (ACA).Reference Bagley and Gluck10 They posit the executive branch acts outside the rule of law, to the degree Congress' expressed objectives of the Act are circumvented. Anyone in favor of individual and societal health would agree.

Others do not. In Texas v. United States, representatives from 20 states sued the federal government challenging the ACA's continued implementation.11 Since a primary leg of the ACA stool, the individual mandate, was kicked away by the 2017 Tax Cuts and Jobs Act,12 these states claim the entire ACA is unconstitutional. It is an ill-conceived argument resisted by multiple other states and localities that have separately sued to require greater enforcement of the ACA.13 However, because the Department of Justice (DOJ) has refused to defend federal interests underlying the Act,Reference Armour14 an early victory in Texas may essentially be handed over to the states.

Under the lens applied by Bagley and Gluck, Rosenstein is right and the public health advocates are wrong. Adherence to the rule of law means existing federal drug laws may be enforced just the same as provisions of the ACA despite divergent public health impacts. The public health law renaissance was not about denouncing the rule of law; it is about legal reforms to further the public's health. If there is a way to legally authorize SIFs, it does not begin with a call to ignore long-standing federal drug laws.

Just days after publication of the aforementioned op-ed, another appeared in the same media. On August 27, 2018, U.S. Deputy Attorney General Rod Rosenstein issued a stern warning to states and localities considering the operation of safe injection facilities (SIFs) in response to the national opioid epidemic.Reference Rosenstein15 SIFs involve the real-time administration of health services to individuals using opioids or other illicit drugs they bring to the facility. In other countries, SIFs are established to help at risk persons survive and potentially overcome their opioid or other drug addictions.Reference Wakeman and Beletsky16 According to Rosenstein, federal law prohibits any facility from openly allowing the use of illicit drugs on its premises;17 consequentially any SIFs may be prosecuted.18 Public health advocates counter that these facilities should be allowed to operate outside federal interference because they save American lives.Reference Bernstein and Zezima19 Essentially, they ask the feds to “look the other way.”

Under the lens applied by Bagley and Gluck, Rosenstein is right and the public health advocates are wrong. Adherence to the rule of law means existing federal drug laws may be enforced just the same as provisions of the ACA despite divergent public health impacts. The public health law renaissance was not about denouncing the rule of law; it is about legal reforms to further the public's health. If there is a way to legally authorize SIFs, it does not begin with a call to ignore long-standing federal drug laws.

Scientific Validation of Legal Interventions

National and regional efforts to modernize public health laws grounded in science and best practices are a hallmark of the renaissance. What emerged later are efforts to apply scientific methodology toward laws directly. As a result, an entire sub-industry has demonstrated the efficacy of a wide range of public health laws and policies.Reference Burris and Anderson20 Some legal interventions, of course, might not fully pass scientific muster. Should these laws be invalidated?

The easy answer is yes. It is difficult to advocate for a public health law whose efficacy is unknown or unproven. Guesswork among lawand policy-makers may have sufficed in the past, but not now. Yet, strict application of scientific assessments can limit innovative legal approaches and fuel substantive challenges. Policymakers and courts may contest unproven laws leading to appropriate legal reforms in some instances. In other cases, available options in the public health legal “toolbox” could be hindered.

Taken to an extreme, scientific validation may also allow continuances of laws and policies whose negative public health impacts cannot be proven. For example, legal theory and strong anecdotal evidence undergird how preemptive laws can bootstrap innovations among lower levels of government.Reference Wetter and Hodge21 If a preemptive federal or state law inhibits local public health measures, scientific validation is not needed to allege adverse impacts on local laws. Suggesting otherwise subjects public health agencies to the whim of lawmakers who can continuously manipulate preemption to the detriment of communal health. In this and additional areas (e.g., commercial speech, vaccination, climate change) the alleged lack of scientific proof of harm from a legal intervention can be damaging.

Expansion of the Mission of Public Health

The quest for scientific validation of public health laws and policies, for better or worse, is only possible if relatively specific outcomes can be measured. It is not enough that a legal intervention may indirectly ameliorate population health. To survive scrutiny, laws should improve the health or lives of targeted persons especially if they absorb most of the burdens.

Against this backdrop has emerged an expansive mission of public health in furtherance of principles of health justice.Reference Wiley22 Promoting health justice through law is about advancing equities, eliminating disparities, expanding “health in all policies,” and conducting health impact assessments.23 The collective value of each of these objectives is unquestioned. To the extent health justice themes underlie public health laws, however, standards for legal measurement may be obscured. A local vaccination program, for example, could be challenged for failing to fairly distribute free vaccines to at-risk children even if it achieved a goal of raising herd immunity. A better designed program would more equitably allocate vaccines, but scarce resources, critical timing, and legal authorities may have limited its structure or implementation. Challenging this legal intervention under principles of health justice may still be appropriate, unless it negates the program altogether.

Government's Duty to Provide Public Health Services

In many ways the laudable quest for justice in public health services is necessitated by an abject failure of the renaissance era. For decades in the early 20th century, public health agencies provided basic services (e.g., testing, screening, vaccination, treatment) to individuals with the objective of improving population health. As federal, state, and local actors aligned increasingly to improve access to health care, they lost sight of the need for government to continue to provide core public health services. These services were essentially bypassed in favor of exponentially more expensive expansions of health care.

Lawmakers should have simultaneously effectuated a basic duty of government to provide or fund core public health services to save countless lives for generations to come.Reference Hodge, Piatt and Johnson24 While the renaissance brought new vision in how to craft and implement legal support for essential public health services, it did not result in an unequivocal legal duty of government to provide them.

Conclusion

The public health law renaissance is waning, but not over. The field of public health law continues to mature far beyond its foundations. It envelops more approaches, policies, techniques, and analytic methods than ever before. It is adapting to lofty goals and 21st century ideals. As the field expands, revisiting some of its original moorings may help guide applied and theoretic roles of law to protect, promote, and improve communal health outcomes. For the renaissance to thrive, however, public and private actors should reconsider how law may accomplish varied ends without constraining its capacity to address multifarious challenges.

Acknowledgements

The author would like to thank Walter G. Johnson, M.S.T.P., Senior Legal Researcher, Center for Public Health Law and Policy, Sandra Day O'Connor College of Law, Arizona State University, for his research and editing contributions.

Footnotes

The author has no conflicts to disclose.

References

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