By Max Mehlman
In my new book from the Johns Hopkins University Press, Transhumanist Dreams and Dystopian Nightmares: The Promise and Peril of Genetic Engineering, I observe that the government might try to use its power to protect the public health to regulate human genetic engineering, but that given mistakes such as the eugenics sterilization programs of the early 20th century, we must be on guard against the overzealous use of this power.
An example of the excessive use of public health powers, although not aimed specifically at the hazards of genetic engineering, can be found in an article in the November 8, 2012, issue of the New England Journal of Medicine by Harvard professors Michelle Mello and Glenn Cohen, in which they state that the Supreme Court’s upholding of the individual insurance mandate as a tax “has highlighted an opportunity for passing creative new public health laws.” They give an example of the laws that they have in mind: higher taxes on people whose body-mass index falls outside of the normal range, who do not produce an annual health improvement plan with their physician, who do not purchase gym memberships, who are diabetic but fail to control their glycated hemoglobin levels, and who do not declare that they were tobacco-free during the past year.
Some of these suggestions seem ineffectual. It’s hard to imagine what the public health benefit would be from rewarding people for making a health-improvement plan without having to follow it or for joining a gym without having to use it. As for making people swear against the use of the “pernicious weed,” aside from being unenforceable, it is too reminiscent of the loyalty oaths of the McCarthy era to be taken seriously.
The other taxes that Mello and Cohen describe are problematic for other reasons. Their underlying assumption that, by adopting healthier lifestyles, individuals can successfully alter their body-mass index, is belied by the overwhelming mass of data showing that weight-loss produced by lifestyle changes tends to be modest and short-term. Furthermore, in light of increasing evidence that obesity is associated with variations in certain genes, such as FTO and BDNF, making people with genetic predispositions to obesity pay more taxes than others is unfair and, if not now an illegal form of genetic discrimination, should be made so. As for glycemic control, adherence to a control regime is especially difficult for populations adversely affected by health disparities, and it seems unfair to add higher taxes to their already disproportionate burdens.
Mello and Cohen state that the law should be used as an “assertive intervention” to induce healthful lifestyle changes. But how “assertive” do they think the law should be? The constitutionality of U.S. public health laws rests on a 1905 Supreme Court case, Jacobson v. Massachusetts, which upheld the imprisonment of a Cambridge, Massachusetts resident who refused to pay a fine after he resisted efforts to vaccinate him against smallpox. Would Mello and Cohen advocate fining and jailing people who did not follow their wellness regime?
The wellness movement is reminiscent of the attitude of Republicans during the recent presidential campaign that people can overcome poverty simply by pulling themselves up by their bootstraps, and that those who don’t are slackers. A majority of voters, recognizing the obstacles that bedevil exercises of the will in the real world, rejected this view. Is there any reason to give it any greater credibility when it comes to health?