Where Are We Now: Post 2, The Thrill of Victory

By Scott Burris

Between budget cuts and “nanny state” attacks, it’s easy to feel that public health is a perennial political loser.  As for the courts, the first two constitutional amendments alone are throwing up enough barriers to reasonable health regulation to keep us on the defensive for years. In this series of posts about how public health protagonists are faring in these politico-legal contests, I will criticize our side. There’s a great deal we do wrong, or at least fail to do well, and those failures are the first place to look if we want to stop being under-appreciated, underfunded and over-invalidated.  But before I put on the hair shirt, I will don satin with a post devoted to the very positive things there are to say about public health law and those who theorize and study it.

Make a list of the biggest health threats that have faced our people in the last fifty years. That list will certainly include lung cancer, cardiovascular disease, motor vehicle crashes, gun violence, communicable diseases, lead poisoning, mental illness and, more recently, drug overdose and obesity.  Now consider what law has done or is doing to address these threats.

Much of the reduction in smoking and exposure to smoke has been effectuated in significant part through legal interventions, from warning labels to clean-indoor air laws to excise taxes. Between the early ’60s and today, deaths on the road have declined 500%, even as vehicle miles driven were going up – that was safer cars through regulation, better roads, and safer driver behavior via minimum drinking age, child restraint, safety belt, graduated drivers’ license and drunk driving laws. Thanks in significant part to bans on lead in paint and gas, and vigorous housing enforcement, the proportion of tested children who have elevated lead levels has gone from over 7% to under 1% since 1997. The success of vaccination – law again played a considerable role.

Despite adverse tides in culture, law and health care coverage, public health law work in the mental health arena has been determined and innovative. Consider the therapeutic jurisprudence movement, the MacArthur Research Network and efforts to develop more expeditious and autonomy-respecting measures like psychiatric advance directives and out-patient commitment.  Despite a string of legal and political reversals in gun safety, there’s been enough regulatory action and evaluation to reassure policy-makers that a range of sensible safety measures – strict background check requirements, for example — can reduce suicides, homicides and accidental shootings.

We have also become a lot better at recognizing that law can be a cause of harm to health, not just a positive intervention.  Researcher and law professor work has helped advance efforts to get law out of the way in areas like syringe exchange and drug overdose. Kevin Outterson’s concept of germ sheds and his interest in the effect of competition law as a barrier to cooperation is shedding new light on how to stop hospital acquired infections.

Obesity has given lots of critics the chance to complain about the Nanny State, but just this month we got our first seriously positive indications that the attempt to throw everything that seemed reasonable up against the problem might be working. In September, RWJF reported significant declines in childhood obesity in a range of cities that have taken on the issue through policy. This was followed by a CDC study showing a modest – but real – drop in obesity among two-to-four year old kids in poor families.

Much of this success has come in the face of determined, well-funded opposition from industries targeted by regulation. It has come at a time when public health was experiencing the collateral damage of the “starve-the-beast” assault on government. The wins tell us a lot about our assets. We benefit from the fact that you can’t fool all of the people all of the time. We benefit from the investment of foundations and the passionate work of non-governmental organizations. We benefit from industries that take some responsibility for health and safety, whether out of corporate social responsibility or enlightened self-interest. The dedication, expertise and expressive talents of public health officials and health advocates make a difference every day.

And we benefit from the work of academics in public health law, both scientists and lawyers. I’ll name a few of the many. Academics like Dick Daynard were instrumental in devising legal strategies for tobacco control; likewise Larry Gostin and Wendy Parmet in HIV; Steve Teret, David Hemenway, Daniel Webster and Jon Vernick in injury and guns.   The steady march of auto-safety was driven by research from people like Alex Wagenaar and Phil Cook.  Academics have developed strategies, done the legal leg work to test them, assessed impact, and helped with implementation. The medical-legal partnership movement has flowered, bringing legal services and structural reform litigation into the health care setting.

The rise of law as an instrument of public health has been one of the most important developments of the past half-century if you judge importance by lives saved and injuries prevented. Legal interventions have drastically changed daily life, altered settled habits, changed consumption habits that had been shaped by huge marketing investments. That’s an impressive record we should not neglect to boast about.

Next: The Agony of Defeat

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