American Beverage Association v. San Francisco: When the First Amendment Jeopardizes Public Health

Crossposted from the Public Health Law Watch blog

By Micah BermanWendy E. Parmet, and Jason A. Smith

Last week, while the health law world focused on the Republicans’ renewed attempt to repeal and replace the ACA, the Ninth Circuit struck an ominous blow to public health. As we have noted previously, federal courts in recent years have relied on an increasingly expansive interpretation of the First Amendment to prioritize the rights of commercial speakers over the health and safety of the public.  This new-found appreciation for commercial speech has resulted in decisions striking down a wide-range of public health regulations and has led food and beverage companies to make “ever-bolder arguments aimed at limiting longstanding government authority to protect the public’s health.” In American Beverage Association v. City and County of San Francisco, those bolder arguments were accepted by the court, putting public health regulations in greater peril.

American Beverage Association concerned a challenge to a 2015 San Francisco ordinance requiring certain advertisements of sugar-sweetened beverages (SSBs) to display over at least 20% of the area of the advertisement a warning stating: “Warning: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”

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Better Care Act Targets Immigrants

If you need yet another reason to conclude that the Senate Republicans’ proposed health care bill – the so-called Better Care Reconciliation Act (BCRA)– is designed more to appease different parts of the Republican base than improve the health care financing system, look no further than page 2 of the draft. There hiding in plain sight are provisions barring certain classes of documented immigrants from participating in health insurance exchanges. To understand why the bill includes these provisions, and why they make no sense from a health policy perspective, a bit of history is helpful.

As Patricia Illingworth and I document in our recent book, The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity, anti-immigrant sentiment has long distorted health policy. That was the case during the summer of 2009, when opponents of what became the ACA rallied in town hall meetings charging that President Obama wanted to provide coverage to undocumented immigrants. When Obama pledged to a joint session of Congress that undocumented immigrants would not be covered by his plan, Rep. Joe Wilson of South Carolina shouted out “You lie.” Continue reading

Newtown: A Public Health Law Perspective

This post is part of a series “Healing in the Wake of Community Violence: Lessons from Newtown and Beyond,” based on an event of the same name hosted at Harvard Law School in April 2017. Background on the series and links to other blog posts are here.

By Wendy E. Parmet

No man is an island

Entire of itself,

Every man is a piece of the continent,

A part of the main

—John Donne, 1624

Like John Donne’s famous Meditation XVII, Newtown, Kim Snyder’s documentary about the aftermath of the 2012 massacre at the Sandy Hook elementary school in Connecticut, forces us to reflect on the inter-connectedness of human life. As Newtown shows with power and poignancy, the victims of that awful massacre were not islands. They were a part of a continent comprised of their families, friends, community, and indeed, all who recall the awful day they were killed.

parmet-chartThis inescapable reality, that our lives and deaths can affect and even traumatize others, is perhaps sufficient to proclaim that gun violence is a public health problem. None of the over 30,000 Americans who die each year from gun violence (most by suicide), are islands. Nor are any of the over 78,000 Americans who are injured by firearms. All are part of the continent. Gun violence affects us all.

But gun violence is a public health problem for another, equally important reason. As with other public health problems, from obesity to HIV/AIDS, the risk that individuals face with respect to firearms is influenced significantly by factors that lie outside their own control. This is not simply because the victims of the Sandy Hook massacre did nothing, and could do nothing, to cause their own death. It is also because different populations face different levels of risk. Race, age, income, gender, geography and a host of other variables determine one’s risk of dying or being injured by firearms.  Continue reading

Newtown: A Public Health Law Perspective

This post stems for the “Healing in the Wake of Community Violence: Lessons from Newtown and Beyond – Film Screening and Panel Discussion,” held at Harvard Law School on April 24, 2017. 

By Wendy E. Parmet

No man is an island
Entire of itself,
Every man is a piece of the continent,
A part of the main

                John Donne, 1624

Like John Donne’s famous Meditation XVII, Newtown, Kim Snyder’s documentary about the aftermath of the 2012 massacre at the Sandy Hook elementary school in Connecticut, forces us to reflect on the inter-connectedness of human life.  As Newtown shows with power and poignancy, the victims of that awful massacre were not islands. They were a part of a continent comprised of their families, friends, community, and indeed, all who recall the awful day they were killed.

This inescapable reality, that our lives and deaths can affect and even traumatize others, is perhaps sufficient to proclaim that gun violence is a “public health problem. None of the over 30,000 Americans who die each year from gun violence (most by suicide), are islands. Nor are any of the over 78,000 Americans who are injured by firearms. All are part of the continent. Gun violence affects us all. Continue reading

New Blog Symposium: Between Complacency and Panic – Legal, Ethical and Policy Responses to Emerging Infectious Diseases

We are pleased to present this symposium featuring commentary from participants in the “Between Complacency and Panic: Legal, Ethical and Policy Responses to Emerging Infectious Diseases” conference held on April 14, 2017, at Northeastern University School of Law. The conference was sponsored by the Center for Health Policy and Law and the American Society for Law, Medicine, and Ethics (ASLME), with support from The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Stay tuned for more posts!

By Wendy E. Parmet and Jennifer L. Huer

Public health is often invisible. In contrast to health services, public health interventions usually operate behind the scenes, reducing risks to broad populations. No one can say who was saved, what deaths were prevented.

For public health, this invisibility presents political and budgetary challenges. Without clear beneficiaries, public health has lacked the political support and dollars allocated to health services. This challenge may be even more formidable today as the Trump Administration seeks enormous cuts to public health programs, while questioning settled public health science.

In the face of such challenges, it may be tempting for public health advocates to emphasize the dangers of emerging infectious diseases. Over the last forty years, a multitude of new or previously tamed infectious diseases such as HIV/AIDS, SARS, Ebola, and Zika have emerged, wrecking morbidity and mortality, and causing panic around the globe. During these outbreaks, public health’s importance becomes, at least briefly, all-too-apparent. Continue reading

Repeal, Replace and Leave Out Immigrants: The American Health Care Act’s Impact on Immigrants

By Wendy Parmet

Given the Trump Administration’s stance on immigration, it probably shouldn’t be surprising that the new health law it is touting, the American Health Care Act (AHCA), will likely have a devastating effect on immigrant and their families. Although not surprising, it should nevertheless be troubling.

Even under the ACA, noncitizen immigrants are far less likely than citizens to have health insurance. In part, this is because immigrants are poorer than the native-born population and are less likely to receive insurance through their workplace. It is also because, contrary to the contentions of its critics, the ACA does not provide any coverage to undocumented immigrants. Indeed, the Obama Administration refused to treat young immigrants who received work permits under the Deferred Action for Childhood Arrival (DACA) program as lawfully in the country and thus eligible to purchase insurance on the exchanges.  In addition, the ACA kept in place the 1996 Personal Responsibility and Work Opportunity Reconciliation Act‘s (PRWORA’s) tight restrictions on immigrants’ eligibility to Medicaid and CHIP. As a result, by 2015, 7 million of the 33 million Americans without insurance were noncitizen immigrants.

Yet although the ACA leaves many immigrants uninsured, it does provide relief to some lawful immigrants. First, it permits lawfully present immigrants who are ineligible for Medicaid to purchase insurance on the exchanges, even if their incomes are below the threshold required for citizens to participate on the exchanges. Second, because immigrants have lower wages than native born citizens, those who are not barred from Medicaid or CHIP due to PROWRA are more likely than native-born citizens to benefit from the ACA’s Medicaid expansion.  More generally, because of their lower wages, immigrants benefit disproportionately from the ACA’s progressivity. Continue reading

Should Government Officials Be Held Responsible For Failing To Protect Health?

By Wendy Parmet

This new post by Wendy Parmet appears on the Health Affairs Blog in a series stemming from the Fifth Annual Health Law Year in P/Review event held at Harvard Law School on Monday, January 23, 2017.

In May 2016, President Barack Obama observed that Flint, Michigan’s water crisis arose from a “culture of neglect” and the belief “that less government is the highest good no matter what.” The crisis, which developed after the city’s unelected emergency manager switched the water supply from the Detroit Water System to the highly corrosive Flint River, caused dangerously high blood lead levels in many of the city’s children, as well as an outbreak of Legionnaire’s disease. Property values plummeted and the state and federal governments were forced to spend hundreds of millions of dollars to mitigate the problem.

Now as a new President who has promised to improve the nation’s infrastructure settles into office, the question remains: Will the culture of neglect, especially regarding the health of poor people of color, continue? The answer may depend upon whether the law recognizes the protection of public health as not only a source of governmental power, but also as a duty for which officials may be held responsible. […]

Read the full post here.

Public Health under the Trump Administration

By Wendy E. Parmet

The recent report by the National Center for Health Statistics showing a decline in life expectancy in the U.S. in 2015 highlights a point largely overlooked in post-election discussions about health policy under the Trump Administration. The significant increases in health insurance coverage under the ACA have not resulted in population-wide improvements in life expectancy. This is not because the coverage increases aren’t important; without question they have made a difference in the lives of millions. Rather, it’s because health care plays a relatively small role in determining population-level health outcomes.  More important are the so-called social determinants of health, the “conditions in which people are born, grow, work, live and age, and the wider forces and systems shaping the conditions of daily life.” This suggests that the new Administration’s economic, educational, environmental, labor, and housing policies will have more to say about the health of Americans than its proposals for replacing the ACA or reforming Medicare and Medicaid.

Public health policies, and public health law, can also have a major impact on population health. Several years ago, the CDC published a list of the “Ten Great Public Health Achievements in the 20th Century,” which it credited with adding 25 years to life expectancy in the U.S. The list included immunizations, control of infectious diseases, family planning, reductions in tobacco use, work-place and motor-vehicular safety and safer and healthier foods. These goals and other public health objectives, including reductions in opioid use and obesity, remain paramount to preventing further reductions in life expectancy.

To date, little attention has been paid to the incoming administration’s views on most of these issues. Although Trump has nominated Rep. Tom Price to be Secretary of HHS, he has yet to name his picks for the head of CDC or for Surgeon General. The Trump transition website does not mention public health; nor did many public health issues, other than the opioid epidemic, receive much notice during the election. Continue reading

The Curious Case Of The Docs Versus The Glocks: Firearms, The First Amendment, And Physician Speech

By Wendy Parmet

This new post by Wendy Parmet appears on the Health Affairs Blog as part of a series stemming from the Fourth Annual Health Law Year in P/Review event held at Harvard Law School on Friday, January 29, 2016.

On February 3, 2016 the full U.S. Court of Appeals for the 11th Circuit agreed to rehear the appeal inWollschlaeger v. Florida, commonly known as the case of the “docs versus the glocks.” Wollschlaegerconcerns a Florida law that bars physicians from routinely asking their patients whether they have guns or store them safely. In agreeing to rehear the appeal, the full court vacated a decision issued last December by a three-judge panel which had replaced two of its own prior opinions. Each of the panel’s three decisions upheld the law, and each raised serious questions about the ability of health professionals to provide their patients with relevant health information.

Public health professionals have long viewed gun safety as a major public health problem. Likewise, many physicians believe that good primary care includes questioning and counseling patients, especially those with children, about firearm safety, just as they talk to patients about seatbelts, cigarettes, and the need to exercise. […]

Read the full post here.

Expanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis

By Leo BeletskyWendy Parmet, and Ameet Sarpatwari

Cross posted from Health Affairs Blog

Amidst a surging crisis of opioid abuse and overdoses, many policymakers have called for expanded use of coercive treatment. Many states, including Massachusetts, already allow physicians, police, and court officers to seek a court order authorizing involuntary addiction treatment (formally referred to as substance use disorder (SUD)). But new legislation, The Act Relative to Substance Use Treatment, Education, and Prevention (STEP) currently before the Massachusetts state legislature (H.3944) could expand the scope of involuntary treatment and reduce judicial oversight.

This proposal is an ill-considered response to a public health crisis. To be sure, policymakers face an understandable pressure to take decisive action. But this approach fails to balance that imperative for speed and public confidence with sound scientific, legal, and ethical principles.

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King v. Burwell: Is the ACA Here to Stay?

By Wendy Parmet

With Chief Justice Roberts’ remarkably strong decision today for the Supreme Court in King v. Burwell millions of Americans can now rest assured:  affordable health insurance is here to stay.  There may not be a constitutional right to health care in the U.S., and thanks to the Court’s 2012 decision regarding the Affordable Care Act’s Medicaid expansion, millions of citizens (not to mention non-citizens) remain uninsured; but the ACA’s promise of providing affordable coverage to millions of low income Americans is now secure.

The question before the Court in Burwell was whether individuals in the 34 states that rely on a federally-operated health insurance exchange, rather than a state-created exchange, are eligible for the federal tax credits. Without those credits, most people could not afford to buy insurance on the exchanges. Nor would they be subject to the ACA’s mandate to have coverage. As the Court recognized, as healthy people fled the exchanges, the insurance markets in states with federally-operated exchanges would experience a death spiral.

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No Jab, No Pay: Australia’s Misguided Approach to Vaccine Refusal

By Wendy Parmet

Australia’s recently announced “no jab, no pay” policy offers a potent reminder of the all-too-common tendency to penalize vulnerable populations for public health problems. Like many other countries, Australia has experienced a worrisome increase in the number of families deciding not to vaccinate their children.  In response, the government of Prime Minister Tony Abbott has announced a program of carrots and sticks. The carrots include increased payments to physicians to incentivize them to urge families to vaccinate their children. The sticks include tightening the religious exemption (Australia does not provide an exemption for personal belief) and the “no jab, no policy” which will deny families whose children aren’t vaccinated certain income-based childcare and family tax benefits.

Governments have long used the denial of public benefits – traditionally public education – to push parents to vaccinate their children.  Studies have shown that laws conditioning attendance in schools and daycares on vaccination can increase vaccination rates, although the particular formulation of the law (especially how difficult it is to receive an exemption) matters.

To be sure, laws that require children to be vaccinated to attend schools or daycare impose heavier burdens on poor families who are more apt to need daycare and are less able to homeschool their children. Still, these laws reach broadly, especially when they apply to private schools. Homeschooling remains relatively rare. Significantly, school-based vaccine laws do not single out low-income families. Continue reading

In Regulating E-Cigarettes, No Easy Fix For The FDA

This new post by Wendy Parmet appears on the Health Affairs Blog, as part of a series stemming from the Third Annual Health Law Year in P/Review event held at Harvard Law School on Friday, January 30, 2015.

Sometime in the next few months, the Food and Drug Administration (FDA) is expected to issue the so-called deeming regulations, which will open the door to the federal regulation of e-cigarettes. In considering whether to issue the regulations, which were first published for notice and comment rulemaking last April, the FDA faces a formidable challenge: it must decide whether and how to regulate in the midst of scientific uncertainty and limited statutory flexibility.

By subjecting e-cigarettes to its regulatory regime, the FDA risks retarding the growth of what may prove to be a powerful new tool for harm reduction. But by failing to act, the agency risks undermining decades of progress in tobacco control. In either case, the public health impact is apt to be significant.

Read the full post here.

Vaccine Mandates: Second Circuit Reaffirms their Constitutionality

By Wendy Parmet

Although the political debate over vaccination rages on, the legal debate is as settled as the science. Last month, in Phillips v. City of New York, the Second Circuit reaffirmed in record time what it and other courts have consistently held: states have the power to mandate that schoolchildren be vaccinated against vaccine-preventable diseases.

The plaintiffs in Phillips included parents of children who had received a religious exemption, but were barred from school during a chicken-pox outbreak, and parents of a child who had been denied a religious exemption. Together they brought just every claim possible against city and state defendants: free exercise, substantive due process, equal protection, and the Ninth Amendment. Last June, District Court Judge William F. Kuntz granted summary judgment for the defendants, relying heavily on an earlier decision of the Second Circuit, Caviezel v. Great Neck Public Schools. Plaintiffs appealed to the Court of Appeals. Continue reading

Ebola Quarantines: Remembering Less Restrictive Alternatives

By Wendy Parmet

The heartfelt letter issued by Kaci Hickox, the nurse being held in quarantine in a New Jersey hospital, calls into question the surprising decision by Governors Christie and Cuomo to quarantine health care workers returning from West Africa. It also shines a spotlight on the all-important, but largely unexplored, question of how the less restrictive “alternative test” applies to quarantine. In her letter, Hickox describes being treated in a shockingly harsh and unsupported manner, being kept for hours in isolation at Newark International Airport, and then in a tent outside of University Hospital in Newark, given only a granola bar to eat. Even after she tested negative for Ebola, and her purported fever had vanished, she remains confined in the hospital. How, she asks, will returning health care workers be treated when they return from Africa?  “Will they be made to feel like criminals and prisoners?”

Hickox’s question points to the critical flaw in the decision by Governor’s Cuomo and Christie to quarantine asymptomatic health care workers returning from Africa. By using the “big gun” of quarantine, the most restrictive public health law we have, rather than a less restrictive approach, the Governors seek to show an anxious public that they’re being tough on Ebola. No doubt this is a politically popular stance. But, as many public health experts have noted, the Governors’ approach can only impede efforts to convince health care workers to go to Africa, where they are desperately needed if the world is to be freed of Ebola. The quarantines may also discourage US-based health care workers and first responders from caring for those who are stricken stateside. If 21 days of confinement in a hospital is demanded for those who care for patients in Liberia, why won’t the same approach be used here? And if so, who will answer the 911 call?

The dangers posed by the Governors’ draconian approach demonstrate the public health importance of the basic constitutional principles that guide the law of quarantine: while governments have the right, if not the duty, to impose quarantine in appropriate circumstances to protect the public’s health, individuals can only be detained when doing is the least restrictive alternative. Exactly what that means has not been fully explored by the courts, in part because quarantine cases are relatively rare. Most modern cases concern patients with tuberculosis. These cases, including ones from New York and New Jersey (e.g., City of New York v. Doe, 205 A.D.2d 469, 614 N.Y.S.2d 8 (N.Y. App. Div., 1 Dept. 1994); City of Newark v. J.S., 652 A.2d 265 (N.J. Super. Ct. Law Div. 1993)), suggest that detention is permissible, but only upon a showing that the patient has been non-complaint with less restrictive approaches (such as directly observed therapy). Courts have also made clear that prisons are not appropriate placements for patients, and that decisions must be based on the best medical and public health evidence. And although courts have not explored these issues, it seems clear that states must provide care and support for those are unable to care for themselves due to public health orders. People who are quarantined are serving the public. We need to treat them accordingly.

In the face of Ebola, fealty to the least restrictive means principle as well as sound public health policy requires that policymakers proceed with a far more nuanced approach than we have seen from the Governors of New York and New Jersey. Without question, public health controls are appropriate, indeed necessary, in response to this awful disease. In Dallas, health officials required health care workers to sign documents agreeing to self-monitor and avoid public transportation. Because Ebola cannot be spread before someone becomes ill, even the latter may be excessive. But these measures were far less restrictive and more tailored than those now being employed in New Jersey and New York. Indeed, a wide range of measures lie between the neglect the public fears, and the over-reaction that the Governors have instituted. Both public health and the Constitution demand we explore them.

Expelling Immigrants from the Exchanges

By Wendy Parmet

[Cross-posted from HealthLawProf Blog.]

The warning by the Centers for Medicare and Medicaid Services (CMS) last month that up to 115,000 people might lose their health insurance under the Affordable Care Act (ACA) unless they can send proof of their citizenship or immigration status was more than a bit ironic. After spending much of the year and millions of dollars trying to boost participation in the exchanges, CMS is now trying to reduce participation. In so doing, it will likely exclude many young, healthy adults, just the type of people that the exchanges need to succeed

The reason for the exclusion lies with the heated politics of immigration, and our ambivalent approach to providing immigrants with health care. Although the ACA’s critics have lambasted the law on many accounts, when the Act was first debated in Congress no charge – not even death panels! — was made more heatedly or drew more attention than the claim that the Act would cover illegal immigrants. It was that charge, after all, that Representative Joe Wilson referred to when he shouted “You lie!” during the President’s speech to a joint session of Congress.

Obama, however, didn’t lie when he promised that the Act would not cover illegal immigrants. The ACA bars from the exchanges immigrants who are “not lawfully present,” a category that includes the so-called Dreamers, the young immigrants who by virtue of an executive order have a right to live and work in the country. It also requires exchange applicants to provide their Social Security number and, in the case of non-citizens, information about their immigration status, which must be verified by the Department of Homeland Security. These are the requirements that CMS is now enforcing.  Continue reading

King v. Governor of the State of New Jersey: Applying the First Amendment to Laws Regulating Physician Speech

By Wendy Parmet

[Cross-posted from HealthLawProf Blog.]

Last week’s decision by the U.S. Court of Appeals for the Third Circuit in King v. Governor of the State of New Jersey, provides an insightful addition to the growing body of case law examining the clash between the state’s power to regulate clinical practice andfree speech.

Although the common law of informed consent arguably implicates the First Amendment rights of physicians and other health professionals, the conflict between the state’s power to regulate health care and free speech has become more apparent in recent years as state legislatures have increasingly enacted laws prescribing what physicians and other clinicians can and cannot say. Such laws are especially common with respect to abortion, but state legislatures have also required physicians to provide specific information about breast cancer treatments, or refrain from asking patients about gun ownership.

Not surprisingly, these laws are frequently challenged on First Amendment grounds. Some courts, relying on the Supreme Court’s cursory treatment of a First Amendment claim in Planned Parenthood v. Casey, have held that laws pertaining to what is said in the course of treatment regulate clinical practice rather than speech, and are, therefore, not subject to heightened review under the First Amendment. That was essentially the approach followed by the Ninth Circuit in Pickup v. Brown, which upheld a California law banning sexual orientation change efforts (SOCE) for minors, and the Eleventh Circuit in Wollschlaeger v. Governor of the State of Florida, which upheld a Florida law limiting physicians’ ability to inquire about their patients’ gun ownership.  As a result of these decisions, it became easier for states to regulate the speech of physicians than the speech of commercial purveyors of deadly products.  Continue reading

Defining Public Health Emergencies

By Wendy Parmet

[Cross-posted from HealthLawProf Blog.]

What makes a public health threat an emergency? In this week’s New England Journal of Medicine, Rebecca Haffajee, Michelle M. Mello and I ask this question in connection with Massachusetts Governor Deval Patrick’s decision last spring to declare the opioid-addiction epidemic a “public health emergency.”  In our Perspective we do not question the seriousness of the opioid-addiction problem; or the specific policies Patrick implemented. Rather, we ask whether the epidemic warranted the invocation of emergency powers.

In the years since 9/11, in the name of public health legal preparedness, public health officials and scholars have focused much attention on the need for so-called emergency laws to strengthen the response to a public health emergency. Although the exact parameters of emergency laws vary, they typically allow for the suspension of some or most ordinary legal procedures and protections. Thus when an emergency is declared, the rules of the legal system are suspended. Executives can take action without awaiting legislative approval, or following the typical administrative process. Judicial review may also be significantly curtailed. As my co-authors and I discuss, this has enormous costs, not only on the individuals and entities whose interests are affected, but on the credibility of public health officials who must ultimately depend on the public’s trust. If the public comes to believe that declarations are issued too easily, its support for public health may diminish. In addition, in the absence of legislative and judicial checks, executive powers may easily be turned against vulnerable populations, as they have been too often in history.

Yes precisely because emergency laws are designed to give officials flexibility to respond to unexpected crises, for which existing policies are insufficient, public health emergency laws grant officials extremely broad, usually unreviewable, discretion to decide what constitutes a “public health emergency.” For example, the Massachusetts law that Governor Patrick invoked provides no definition of a public health emergency whatsoever, leaving its determination solely to the Governor’s judgment. Likewise no definition appears in the 2005 federal Public Readiness and Emergency Preparedness Act (PREPA), which preempts most state tort claims against and a vaccines and countermeasures once the Secretary of Health and Human Services declares an emergency.  Continue reading

What Is (or Isn’t) a Public Health “Emergency”?

By Rebecca Haffajee

In this week’s issue of New England Journal of Medicine, Michelle Mello, Wendy Parmet, and I write about what constitutes — or should constitute — a “public health emergency”. The law provides for emergency declarations, which suspend ordinary legal standards and processes in order to avoid catastrophe, on many levels (international, federal, state, local) and in public health or more general contexts. We focus our discussion at the state level, using Governor Deval Patrick’s declaration of the opioid-addiction crisis as a public health emergency as an opportunity to explore the appropriate parameters of these powers. My co-authors and I don’t debate the public health significance of opioid addiction in the Commonwealth, nor the specific measures ordered pursuant to this declaration. We do question the expanding use of public health emergency powers beyond the traditional arenas of infectious disease outbreaks, natural disasters, and acts of bioterrorism into new territories, such as injuries and chronic disease.

State laws provide governors and their top health officers with considerable latitude in declaring public health emergencies. But the powers available upon such declarations are extraordinary and should be wielded with care. My co-authors and I identify three key criteria that seem to be enshrined in the spirit of public health emergency laws: “the situation is exigent, the anticipated or potential harm is calamitous, and the harm cannot be avoided through ordinary procedures.” In the absence of these criteria, the invocation of such emergencies may raise heightened concerns — for instance, if ensuing orders involve serious infringements on individual and private business rights — and could result in a loss of public trust in health officials and legitimacy in public health laws. We caution against setting such troubling precedent.

Read more in our Perspective, entitled “What Is a Public Health “Emergency”?“.