By Scott Burris
In a well-known exchange, Richard Epstein argued that modern public health had strayed far outside its traditional and proper work of preventing epidemics and injuries into a realm of social engineering in which it lacked both competence and legitimacy. William Novak, the historian, disagreed, emphasizing the continuity of our public quest for well-ordered, salubrious (and virtuous) communities. Deciding whether public health is winning or losing in the legal arena – and figuring out how we win more often — depends to some degree on what game it is we think we are playing – that is, on whether Epstein or Novak is right.
I think they both are, and it is worth considering how. I suspect that most of us think, without going too deeply, that we’re doing pretty much the same thing that Lemuel Shattuck was doing at the dawn of modern American public health: marshaling collective resources to use data to diagnose, treat and prevent harm to public health. And if that’s what you think you’re doing, his report is still an excellent guide to making the case for legal action: evidence shows that we can prevent morbidity and mortality in a cost-effective way that does not significantly interfere with anyone’s rights and makes our society stronger and more competitive.
But law, at least, is a very good area for asking whether we are doing something quite different than our grandmother’s public health. The use of law as a tool of intervention in public health – as a way of creating safer products and environments and incentivizing healthier behavior — has exploded since the 1960s. Yes, you can find public health law at work in the early 17th century, but when I was born in 1956, there was no OSHA, no EPA, no NHTSA. No warning labels on dangerous products. No safety belt standards or laws. Minimal limits on drinking and driving. No federal clean water or air standards. An unrecognizable FDA. And so on it goes. In the great Novak-Epstein debate, Novak is right that we have a rich tradition of public health regulation, and plenty of paternalism and interference with individual rights based on epidemiological evidence of preventable harms. This is public health as sic utere, then and now largely a matter of showing how someone is doing something that demonstrably imposes costs on others. That’s why the debate Shattuck was waging sounds so familiar to contemporary ears. (And, by the way, that extends to the moralism implicit in our “scientific” recommendations about healthy lifestyles.)
But Epstein is right, too, I think, to observe that something is different. Public health is now a pillar of the regulatory state and the risk society, deeply enmeshed in the project of defining and minimizing risks great and, let’s face it, small. We deploy complex regulatory systems, some of which work and some of which we continue to defend anyway, in spite of our own commitments to evidence. As matters like obesity and inequality take intervention further and further from proximate to distal links in the causal chain, our ability to back our proposals with evidence, and evidence that speaks to an everyday sense of causality, becomes severely attenuated. Much of what we propose rests on a vision of the good – salus populi – that is as much a matter of values as it is of evidence. Failing to own that, we fool ourselves without winning over our audience.
We are actually playing several different games. The games are played differently; we keep score differently; they pose different challenges; and we need different strategies to win them. “Shattuck advocacy” works for some of these games, but not all, and maybe in all of them we could do better.
Game 1 is the fight for the “old” governmental public health – gathering statistics, stopping epidemics, preparing for emergencies. In this game, we face aggravated versions of the perennial political and legal challenges to public health. Health departments are being harmed by the general climate of austerity, small government and anti-tax politics. And to the extent that public health is faring worse than other areas of government, we have the same old problem of the lack of appreciation for prevention meeting (as I will discuss in the next post) our own uncertainty/ambivalence/blindness about what is still worth doing, how to do it best etc. In this game, our traditional strategies still make sense; we just need the resources to fight the fight more effectively. We have public health leaders who can make the case for core functions. Public Health Systems and Services Research – and the mentality behind it – is a crucial new resource, because it can help us figure out and prove what works, what we can let go, and what innovations can potentially transform the field. Likewise, PHLR can help by showing that laws can be an effective (and cost-effective) tool for public health agencies. Increasing legal competence through training, provision of legal counsel, the Network for Public Health Law TA and so on – all of this goes in the right direction to helping public health in this never-ending struggle.
Game 2 is the fight for regulatory intervention to address products and behaviors that are demonstrably and proximately related to harm. This is “new” in the sense that it has exploded in scope and frequency, but not really different: I talk about behaviors and products and other factors that are proximately and demonstrably linked to important harms because this is key to how the game is played. When a cause and effect are close to each other, we are operating in the realm of intuitive causal reasoning. It is possible to convince a majority of people that there is a problem and a solution, and abstractions about paternalism and the harm principle probably have more to do with explaining than making a decision (yes, I find Jonathan Haidt’s work very convincing). We often win because people “get” the risks, accept the changed behavior or product in large proportions, and then develop and enforce social norms. This is still what I would call “sic utere” public health law – about not doing things that harm other people’s bodies or their wallets. Here, too, we can and do win popular support the old-fashioned way – we prove it. As in the institutional public health game, what we need is resources for effective advocacy: support for research; resources to coordinate research with policy design and advocacy; resources for political and public persuasion. This game is all about finding ways to overcome the resistance of the ideological or, more frequently, economic interests that believe they will be harmed by regulatory action.
Game 3 involves the pursuit of distal determinants of health and harm. We see it in the focus on social determinants of health and health disparities, but also in the campaign against obesity. What puts these into a game of their own is that the health outcomes that we claim justify our intervention are produced by long and complicated processes that are extremely challenging to empirically evaluate. We have evidence, but it is more a byzantine arrangement of sweaty pipes than a smoking gun. This is not the realm of popular causality. We are asking for big changes in social practices based on our intuitions and educated interpretations of information that could be interpreted quite differently.
Our main problem in this game is that while we can make Shattuck arguments, we have to expect that a lot of reasonable people won’t be convinced and that a lot of other reasonable people – like Richard Epstein – will be repelled. In fact, the more we are seen to claim more certainty than the evidence allows, the less trustworthy we look. Conversely, our reflexive reliance on Shattuck arguments and the scientific pose prevents us from really interrogating the game we are playing and how to win it. I am very open to correction, but I think right now that this is a game of values, not health consequences. We are pursuing a vision of a happy, healthy society built on traits that are not just good because they produce health: equality, dignity, fulfillment, cooperation, learning, peace. Research is vital, but for now we can’t prove that social equality will produce better public health in the same way we can prove that a minimum drinking age of 21 will prevent crashes. And, I hope, most of us don’t care – we’re for equality anyway. I suspect we will convince more people that equality-oriented policies are good because they produce equality than because they reduce heart disease.
I have agreed with Epstein that this game is new for public health – but only sort of. Novak would point out that the 19th century vision of a well-ordered society was also more about the larger good than the sale of contaminated pork chops or the placement of tanneries. That, however, is precisely the point. We are not fooling very many people preventing that the campaign for a Framework Treaty for Global Health or for Health in All Policies is really just about health. It’s about advancing our vision of a well-ordered society. The people who I think are really good at this – say, Mark Heywood, who turned the AIDS Law Project of South Africa into Section 27, a “catalyst for social justice” – realize this, and they are moving beyond health. They are framing broader arguments and forming broader coalitions. Being more honest about this creates the opportunity to be more convincing, and more right.
Next: Our Heuristics and Biases