The State of Public Health Law: Post I, “Who Am I? Why am I Here?”

By Scott Burris

Early in January, Lindsay Wiley and the Network for Public Health Law will convene a group of health law professors and (and a few colleagues from public health law practice) in Washington.  They will be spending a couple of days advancing a conversation about how academic health lawyers can make a bigger contribution to the cause of improving the level and distribution of health in the United States.  The conversation will pick up where a smaller group, organized by Wendy Parmet and Leo Beletsky, left off last Summer. You can read more about that meeting here.

The impetus for these meetings has been a sense that there is a well-organized and well-funded legal effort to blunt key initiatives in public health – and that it seems to be winning.  And that “our side” is not putting up much of a fight. Whether it is the creeping First Amendment or the shrinking Commerce Clause – or just the battle for public hearts and minds – many of us law professors shared the feeling that we needed to rethink our game, not just in the short term, but for the long haul.

The discussion in January will be addressing three questions essential to that rethink: (1) where are we now? (2) where would we like to be in 20 or 30 years? and (3) what will we have to do to get there?  In advance of the meeting, we are thinking about these questions, and I have taken on the task of offering some thoughts on question 1, in the form of a series of blog posts over the next three weeks.  These will be personal essays, describing my own perhaps confused thoughts. I consign them to ablog as much for future deniablilty as present dissemination. I’ll be happy to have comments.

In today’s post, I will briefly set the stage by explaining who is it I am speaking of, and why I think we matter.  This isn’t as simple as one might think at first blush. As I will discuss more in later posts, it is both practical folly and substantively wrong to think of disputes over public health as simply one facet of the blue/red divide.  A lot of things on the public health agenda are popular, especially as we focus on social determinants of health: most of us want salubrious schools, houses, neighborhoods, workplaces. Public health proposals do have opponents: Industries targeted by regulation, politicians determined to starve the beast, and people who put other values ahead of marginal reductions in morbidity and mortality —  but I will resist using a right/conservative “them” or a left/liberal “we.”  Public health does not do well as a partisan issue.

A second complication is that it is not at all clear that all the species in the genus public health are willing or able to cooperate.  People who work on HIV compete for funds and space on the agenda with people working on cancer, who compete with people working on obesity. We not only compete for resources, but draw on the common pool of political capital.  And we public health law people can’t even be sure that our appetite for policy interventions is shared by others in the many disciplines of public health.

So as I proceed with this inquiry, the “we” I am speaking to or of consists of:

  • People from a variety of perspectives who accept two propositions:
    • The state has a strong interest in fostering environments and behaviors that promote a high level and fair distribution of health
    • Law is a legitimate and often effective tool for advancing that interest
  • And who have identified themselves to some degree with the (perhaps imaginary or idealized, see below) “public health” community or movement.

One more caveat, about which I may or may not say more but that needs to be on the table: as we become more and more focused on the social factors that shape our well-being, does it make sense to think of our cause as “public health.”  Inequality is bad from many perspectives – how does it help to call it a “health issue”?  Is this the most effective way to build public support for the interventions we think are needed? Is this the best way to develop networks of allies?  Are the institutions, methods and mentalities of public health the only ones that can deliver a higher level and better distribution of social well-being?  I doubt that everything we do and think is wrong, but considering whether it might be is a good start to doing better.

NEXT: Putting on the Satin Shirt

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