George at APHA III

By Scott Burris

One of the themes of what we might call Georgian Legal Scholarship has been the neglect of public health as a core object of government. This is a theme Wendy Parmet set out at length in Populations, Public Health and the Law, and that Renee Landers took up at APHA.

Landers’ timely example was the ACA and its individual mandate, which has been characterized in litigation as a mandate to purchase an “unwanted” product in violation of individual liberty, exceeding Congress’s power under the Commerce Clause, not a valid exercise of Congress’s Taxing Power, and an intrusion on the prerogatives of the States.  The Chief Justice’s opinion in the Supreme Court’s decision in NFIB v. Sebelius, upholding the individual mandate, but declaring the structure of the Medicaid expansion a violation of the Tenth Amendment, provides her many examples of the focus on these legal abstractions. She also points to language from the joint dissent that indicates the same limited perspective.   Absent from the opinions was acknowledgment of the significant public health problems—human suffering—that the ACA was designed to address.  As she sees it, a focus on abstractions over lived experience has resulted in millions of intended beneficiaries of the ACA being left out of the Medicaid expansion because 26 states have taken advantage of the ability to opt out of the Medicaid expansion.

Landers argued that this was not a problem confined to the ACA case. Courts have reasoned in similar ways in recent public health preemption, First Amendment and abortion cases, showing a disregard for real human situations or scientific and economic evidence.   To her, these recent examples echo the approach of the courts in the early part of the twentieth century when the Lochner case defined judicial review of economic and public health regulation, as Wendy Parmet has discussed in Populations, Public Health, and the Law.  Public health lawyers and scholars, she concluded, must work to demonstrate for courts that role of economic regulation in promoting the public health, elevate the concerns of real people above legal abstractions, and lift the mask on punitive measures masquerading as public health laws.

Tomorrow: Happy George

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