By Scott Burris
The “George Project” is a loose collaborative of law professors working to promote the fair and effective use of law for public health. It has been described here. Last week, four George participants formed a panel to report on their intellectual adventures in the sometimes dicey world of public health law. This week, I will report on their comments in a series of posts.
Wendy Parmet’s presentation, Beyond Paternalism: Public Health as Preemption, began by noting the agreement among George collaborators on the need to respond to the normative attacks being waged against public health laws. At the moment, the most salient of these is the “nanny-state critique,” which condemns public health law as inappropriately paternalistic. After reviewing some of the responses that scholars have offered to that charge, Parmet focused on the one recently proposed by fellow Georgians Lindsay Wiley and Micah Berman (and Doug Blanke) — namely that we need to frame public health as a manifestation of the democratic process. Parmet developed that theme by arguing that public health law is not simply a restriction of liberty, as the nanny-state critique presumes; it is also a manifestation of citizens’ positive liberty to self-govern. Or, to put it another way, public health law is the product of citizens exercising their rights to self-governance to provide the conditions by which they can be healthy.
After suggesting that public health can be viewed as an exercise of self-governance, Parmet looked briefly at two recent public health law cases. New York Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Department of Health, 110 A.D. 3d 1 (N.Y. App. Div. 2013), struck down New York City’s ban on large sugary sodas. Cleveland v. Ohio, 989 N.E.2d 1072 (Ohio. App. 2013), struck down an Ohio state law designed to preempt a Cleveland ordinance banning trans fats. In comparing the two cases, Parmet focused on the fact that the court in the New York case emphasized what it saw as the overreaching of a public health agency; in the Ohio case, the court noted that the state was improperly undermining the power of the city council to protect the health of Cleveland’s citizens. Although these are only two state law cases that depend on the particularities of state law, Parmet asked whether the fact that the New York City regulation emerged from an administrative agency without legislative support while the Cleveland ordinance was enacted by the city’s council was significant? Could it be that laws that emerge from a democratic process are more secure than equally paternalistic administrative regulations? More broadly, might the paternalism critique be masking a discomfort with the bureaucracy, expertise, and the administrative state?
Parmet concluded by arguing the public health needs to look in the mirror. Have we in public health undermined our own cause by treating public health law as a technical tool that experts can apply to achieve scientifically-validated outcomes? In so doing, have we lost sight of the fact that public health law is or should be a tool that citizens can use to improve the health of their own communities?
My own talk, which I will describe in a later post, was also about how public health is popular, but in the less profound sense of that word. What I really liked about this panel, and Wendy Parmet’s talk exemplified this, was the willingness not only to point out how courts and commentators are neglecting the democratic roots of public health, but also how we in public health may be settling for overly simplified (and empirically false) explanations for our legal and political setbacks.
Tomorrow: Lindsey Wiley’s talk.