By Scott Burris
This is the last in a series summarizing a panel from the George collaborative of law professors at last week’s APHA meeting. My talk had a smiley icon for a title and a rant for a structure. I wanted to engage the audience with two very general ideas: that public health legal interventions are popular, and that we are both factually and strategically wrong to buy into the framing of public health law controversies as turning on principled questions of paternalism or tensions between individual rights and collective welfare.
The first is a point I have made in past posts of one kind or another, and that Evan Anderson and I elaborate in our article just published in the Annual Review of Law and Social Science. In that article, we point to the fact that Rs and Ds have been happily passing laws that regulate our behaviors, our environment and our machines for public health reasons for decades and show no signs of slowing down. In the talk, I also reference the Morain and Mello Health Affairs piece on pro-public-health public opinion. At PHLR, we are working on another aspect of all this, the fact that a lot of the controversy and complaint about “intrusive” measures often dies down once the new behavior is adopted. We don’t have a paper on this yet, but just ask yourself who misses smoke-filled rooms, transfats, cars without airbags… And of course, as Mayor Bloomberg makes his exit as the symbol of the local nanny state, it’s worth recalling his poor paterniated charges re-elected him twice.
Then the rant really got started. It is frustrating that in the face of a glass so evidently at least half-full we still go along with what I think are merely habitual notions of Americans hating paternalism, public health regulations posing a tragic tension with civil liberties, and even that policy is a dangerous no-go area for public health agencies. First of all, Sunstein and Thaler are right – preferences are usually soft and malleable, and there is going to be a created default one way or the other. Anyway, as already asserted, people actually like parents – if their rules seem fair and deal with a risk that looks real in a sensible way. The opposition to regulations typically is really coming from regulated industries, not spontaneous social movements.
More importantly, continuing to analyze our reverses in this way obscures what I think are a harder but more worthwhile set of challenges to consider: Popular public health law has broken clear causal chains near unmistakable harms – it is easy to sell. But more and more we are worried about upstream prevention, which is fuzzy as to mechanisms (eating?) and harms (being fat?) Evidence for upstream prevention is a lot tougher to interpret, even for scientists, and often we are asking everyone to just trust us. That’s always a chancy gambit, especially if we have staked our credibility on evidence. And there is more: We believers need to see that values, not just evidence, are in play. People can rationally regard the pleasure of wind blowing through hair to be worth the risk of riding a Harley without a helmet. And why is health the highest value anyway?
I finished the talk with a reference to Jonathan Haidt’s work on moral intuitions, and a general call for us in public health to think about new arguments and framing strategies for public health – which is what George is all about.