As the holidays approach, I have a chance to catch up on reading. The Sept-Oct issue of the Hastings Center Report had a paper by Larry Gostin on Michael Bloomberg’s health policy career in New York, and I have seen some of a series of responses by other scholars that will appear in due course. With his usual facility, Gostin recounts the story of Bloomberg’s health department and its innovations in policy – it’s a great piece for a health law class. The piece is also typical Gostin in its framing of the issue of paternalism as a key driver of opposition to many of Bloomberg’s initiatives. And if it is typical Gostin, it is really representative of our field, since Gostin has both drawn on and helped reinforce a widely held belief that the politics of public health are strongly driven by a tension between individual liberty (inscribed legally in civil rights and culturally in individualism and antipaternalism) and public health.
In this framework, paternalism is a premise, not a hypothesis. Gostin writes, “The societal discomfort with Bloomberg’s agenda is grounded, at its core, in distrust of government influence on how autonomous adults conduct their lives.” He describes how health policy-makers are driven to rely on the harm principle to justify policies by “American antipathy toward paternalism.” Yet, and this is also typical of the discourse in our field, he also follows the Sunstein-Thaler line that ultimately denies the empirical assumptions upon which anti-paternalist claims depend: “The public health approach rejects the idea that there is such a thing as unfettered free will, recognizing instead that the built environment, social networks, marketing, and a range of situational cues drive complex behaviors.”
Public health law has been stuck here for a while, accepting that public health policy has and always will be subject to the arbitrary dominion of a mass delusion of autonomy. I think this log-jam is starting to break – and that proponents of effective health laws should be doing all they can to properly discredit and abandon this old trope. A few signs:
In his comment, available on SSRN, Roger Magnusson redefines the debate: “The real source of discontent with Bloomberg’s health policies … lies not with the loss of freedom at the hands of the state, but in interference with a cultural perception of oneself as wholly self-sufficient” in an infallible free market. Magusson calls a delusion a delusion, while pointing us to the important political implications that even a delusional social reality can bring: antipaternalism “provides a brilliant operating environment for big tobacco, big alcohol and bad food, who knowingly shape the preferences and consumption habits of entire populations, while benefiting from the assumption that all it takes to beat ballooning rates of diabetes and obesity is a bit of personal discipline.” In a practical vein, he observes that antipaternalists speak from a position of good health, and that we can change the debate by bringing into the frame those who have succumbed to their risky environments. “I am yet to come across a cheer squad of people celebrating the unhealthy food environment that nurtured their diabetes and contributed to the removal of their toes, or a band of COPD patients bemoaning the over-reach of tobacco control as they suck oxygen through a tube.”
Michelle Mello and David Studdert also chimed in usefully, in a manuscript they shared with me. (You’ll want to read it, believe me.) They focus on the point that, as I once wrote, this sort of individualism is neither genetic nor an immutable feature of the American psyche. Rather, the antipaternlist frame “has been expertly stage-managed by industry groups representing restaurants, food manufacturers, and beverage companies. These groups have spent millions bankrolling “consumer rights” organizations to promulgate the nanny-state message with advertising campaigns that are creative, humorous, and ubiquitous.” They provide specific example, naming names like Phillip Morris and Cargill.
Other legal scholars are warming to this theme in a number of ways. Wiley, Berman and Blanke recently characterized fake paternalism arguments as “the Nanny State slur.” Wendy Parmet has been reminding us that in a democracy the nanny is us. This de-legitimization and questioning of the antipaternalism claim to cultural reality is important. We also need to start offering more accurate alternative explanations for why some health laws are popular and others are not. Evan Anderson and I had a few ideas. More on this another time.