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.” Read More

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. Read More

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. Read More

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. Read More

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. Read More

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.