A Tale of Two Polities (Revisited)

By Hosea H. HarveyPh.D., JD

About a year ago, my colleague Scott Burris blogged on this forum about the two polities of public health that compete for our visions – one view sees public health as “incredibly popular with citizens and lawmakers” and the other as the despised “nanny state.” Burris suggested that the former view is largely the truth, but the latter view is driving budgets and policymaking. His action plan centered on mobilizing public support for public health initiatives rooted in sound science, and engaging battles over public health law budgets and lawmaking. To do so, he recommended, among other things: a) that ideological or economic arguments against public health initiatives be challenged with data and science, including collaborations with state public health agencies, b) that legislators be supported more vigorously with real public opinion data and evidence, and c) improved normative work by law professors to develop a proactive intellectual, cultural, and political framework to evaluate, and perhaps influence, public health law interventions.

With respect to my own area of expertise, three recent developments seem designed to provide responses to Burris’s clarion call. First, the LawAtlas policy surveillance web portal has expanded significantly over the past year and has become a one-stop shop for public health law advocates and lawmakers to objectively evaluate existing public health law interventions and to learn about key elements of such laws. LawAtlas, as readers of this blog know, has expanded from an initial public health law surveillance of four broad public health law regimes to more than 20 datasets covering laws at a variety of levels – some statewide, as in my work on youth sports TBI laws, and some at a county or community-level such as the Seattle and King County public health law surveillance tool, which tracks policies adopted by local governments, public sector institutions, and private organizations in King County, Washington. My own policy surveillance portal, which has been substantially revised and re-launched this week, is one tool that contributes data to conversations that can too often be overrun by politics and emotion. Whether on LawAtlas, or in other forums, perhaps countering political noise with raw data will help reduce the level of misinformation in this policy space and promote a more reinvigorated evidence-based approach to public health lawmaking.

Second, recent efforts to evaluate the effects of public health lawmaking in youth sports have yielded promising results. In just five short years, every U.S. state (and D.C.) passed some form of law meant to protect youth athletes from repeat traumatic brain injuries (TBIs). The majority of these laws are structured following a three-tenet approach based upon the first youth sports concussion law passed in Washington, which was named for Zackery Lystedt. As such, most of the laws focus on removing an athlete from competition following a suspected TBI, ensuring health professional evaluation prior to returning to play, and educating key constituents about identifying TBIs or understanding their risks. But, the laws don’t directly attempt to reduce primary instances of TBIs. Throughout this fast-paced lawmaking environment, we have not had enough evidence to evaluate whether the three-tenet Lystedt Law approach would yield optimal public health outcomes. But, experts have developed exciting ways of gathering objective data in this space. For example, Dr. Dawn Comstock and colleagues developed a rigorous concussion and injury reporting surveillance system, which samples athletic trainers’ injury reports from high schools from across the country. Research derived from this system suggests a clear increase in reported youth concussion rates in recent years. Though it is difficult to firmly conclude that the rate increases were directly related to the education and awareness raising resulting from youth sports TBI laws, researchers can build upon these findings and conduct further research to draw broader conclusions about the interaction between laws and public health outcomes in this policy space.

But gathering data and deploying it in academic studies is only part of the evidence-based policymaking approach. As Burris explained, our roles as researchers, lawyers and professors will be to further support the use of evidence and data as legislators develop, adjust, and improve upon public health laws. To that end, I had the pleasure recently of testifying along with Kerri Lowrey and others, before the Connecticut General Assembly’s Children’s Committee, which was debating a bill designed to modernize and improve Connecticut’s youth sports TBI law, which was one of the first in the nation.

Critics of the markup focused on the arguments expected by Burris: that the proposed changes were nanny-like, too-expensive, would cause a spike in lawsuits, were not in the public’s interest, and would not be popular or effective in Connecticut or elsewhere. In response, proponents of the changes utilized a robust set of policy-surveillance tools to provide a vigorous counter-narrative. Other groups also marshaled data, to suggest that the law was working as intended. Others marshaled public opinion to suggest public willingness to support more rigorous intervention. Still others focused on unique non-law interventions, such as Terry O’Neil’s Practice Like Pros, which encourages coaches and others to develop safer practices that do not necessarily rely on law as an implementation vehicle. In short, the debate was substantially informed by evidence on both sides, proffered from a variety of methodological and professional perspectives, which should ensure a more thorough and open lawmaking process – no matter what the legislative outcome.

Although testifying taught me many things, it also served as a useful reminder that while sometimes research can seem a bit isolated from real-world impact and results, the growing nexus between public health law research and tangible public impact makes open-source data-driven policy surveillance portals critical to improving the public health.

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