By Max Mehlman
In my new book from the Johns Hopkins University Press, Transhumanist Dreams and Dystopian Nightmares: The Promise and Peril of Genetic Engineering, I observe that the government might try to use its power to protect the public health to regulate human genetic engineering, but that given mistakes such as the eugenics sterilization programs of the early 20th century, we must be on guard against the overzealous use of this power.
An example of the excessive use of public health powers, although not aimed specifically at the hazards of genetic engineering, can be found in an article in the November 8, 2012, issue of the New England Journal of Medicine by Harvard professors Michelle Mello and Glenn Cohen, in which they state that the Supreme Court’s upholding of the individual insurance mandate as a tax “has highlighted an opportunity for passing creative new public health laws.” They give an example of the laws that they have in mind: higher taxes on people whose body-mass index falls outside of the normal range, who do not produce an annual health improvement plan with their physician, who do not purchase gym memberships, who are diabetic but fail to control their glycated hemoglobin levels, and who do not declare that they were tobacco-free during the past year.
Some of these suggestions seem ineffectual. It’s hard to imagine what the public health benefit would be from rewarding people for making a health-improvement plan without having to follow it or for joining a gym without having to use it. As for making people swear against the use of the “pernicious weed,” aside from being unenforceable, it is too reminiscent of the loyalty oaths of the McCarthy era to be taken seriously.
The other taxes that Mello and Cohen describe are problematic for other reasons. Their underlying assumption that, by adopting healthier lifestyles, individuals can successfully alter their body-mass index, is belied by the overwhelming mass of data showing that weight-loss produced by lifestyle changes tends to be modest and short-term. Furthermore, in light of increasing evidence that obesity is associated with variations in certain genes, such as FTO and BDNF, making people with genetic predispositions to obesity pay more taxes than others is unfair and, if not now an illegal form of genetic discrimination, should be made so. As for glycemic control, adherence to a control regime is especially difficult for populations adversely affected by health disparities, and it seems unfair to add higher taxes to their already disproportionate burdens.
Mello and Cohen state that the law should be used as an “assertive intervention” to induce healthful lifestyle changes. But how “assertive” do they think the law should be? The constitutionality of U.S. public health laws rests on a 1905 Supreme Court case, Jacobson v. Massachusetts, which upheld the imprisonment of a Cambridge, Massachusetts resident who refused to pay a fine after he resisted efforts to vaccinate him against smallpox. Would Mello and Cohen advocate fining and jailing people who did not follow their wellness regime?
The wellness movement is reminiscent of the attitude of Republicans during the recent presidential campaign that people can overcome poverty simply by pulling themselves up by their bootstraps, and that those who don’t are slackers. A majority of voters, recognizing the obstacles that bedevil exercises of the will in the real world, rejected this view. Is there any reason to give it any greater credibility when it comes to health?
Thanks for the interesting post Max. I don’t want to speak for Prof. Mello, but I don’t think we actually disagree all that much with you in that we are making a different claim than the one you seem to want to attack.
All we say in the New England Journal of Medicine Article is that Justice Roberts’ opinion has solidified the CONSTITUTIONAL POWER for the federal government to mount a wide array of public health initiatives, and we use these examples to map things on the outer bounds that his opinion would now render constitutional. In the two paragraphs in question where we lay this out, reproduced below, we are very careful NOT TO ENDORSE these or any particular strategies, but only to say they now seem constitutionally possible after the decision in Sebelius.
Evaluating any potential intervention would require considerably more data as well as space to discuss then we have in the short New England Journal Perspective format. Unsurprisingly, I would not (and would be very surprised if Prof. Mello would) endorse any intervention that is counter-productive or ineffective, which I am sure you would have inferred (it would be odd to champion that which does not work after all!) I actually think the more interesting questions would be for interventions that were highly effective but also penalized people in ways that might seem somewhat unfair. There is a burgeoning literature on the ethics of assigning responsibility for health, and though I would need to consider the specific facts of a particular intervention, from what I have said about analogous issues elsewhere — see the discussion of responsibility-sensitive rationing in this forthcoming paper of mine — you will see I am somewhat skeptical of luck egalitarian reasoning in main domains.
But now this prompts a question back to you: Do you think we are wrong to conclude that after Sebelius these interventions are CONSTITUTIONALLY PERMISSIBLE, wise or stupid?
Here are the two paragraphs in question from the New England Journal of Medicine Article that Max references (which can be read in full here https://www.nejm.org/doi/full/10.1056/NEJMp1209648?query=TOC)
“Roberts’s opinion appears to invite more targeted, assertive interventions to promote public health. For example, instead of merely taxing tobacco sales, the federal government could require individuals to pay a tax penalty unless they declare that they haven’t used tobacco products during the year. It could give a tax credit to people who submit documentation that their body-mass index is in the normal range or has decreased during the year or to diabetic persons who document that their glycated hemoglobin levels are controlled. It could tax individuals who fail to purchase gym memberships. It could require taxpayers to complete an annual health improvement plan with their physician in order to obtain a tax credit, though that might be challenged under other parts of the Constitution. These strategies depart from traditional uses of taxes by targeting omissions and noncommercial activities that are important drivers of chronic disease.
State and local governments, too, can pursue such strategies. Levying taxes to achieve regulatory aims — even taxes resembling mandates with penalties — is well within their police-power authority. They’ve wielded this power to impose various “sin” taxes on unhealthful products, as well as in more innovative ways, such as the insurance mandate with an SRP that Massachusetts pioneered. The Court ruling makes clear that the federal government can enter territory historically dominated by the states.”
To the question, “would Mello and Cohen advocate fining and jailing people who did not follow their wellness regime,” the answer is clearly no (at least as far as their NEJM argument goes), since they emphasized that “Roberts made clear that Congress can use the taxing power only to influence behavior by making people pay money; it cannot impose other sanctions.”
In addition to the genetic predispositions of some to obesity and substance abuse, which Max mentions, there are likely genetic-based individual differences in susceptibility to tax incentives/penalties. This is on my mind because Yale School of Public Health economist and RWJF scholar Jason Fletcher has a very interesting paper just out in PLOS One that finds that individuals with a protective G/G genotype in a certain nicotine receptor (about 51% of Americans) were less likely to continue smoking as tobacco taxes went up, while those with the C/C or C/G genotype (about 49% of Americans) were largely unaffected by such deterrents (and hence, different mechanisms may be needed to dissuade them from smoking).
The paper is here: https://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0050576, and the RWJF blog write-up of the study is here: https://www.rwjf.org/en/about-rwjf/newsroom/newsroom-content/2012/12/genetics-vs–tobacco-taxes–the-limits-of-public-policy-aimed-at.html.
Strangely the blog dropped the link to my paper (maybe a spam filter) where I discuss responsibility-sensitive rationing. It is Rationing Legal Services, forthcoming in the Journal of Legal Analysis, and is available here: https://ssrn.com/abstract=2180453
And in my view, the notion of genetic predispositions for obesity are far less compelling and less interesting than the overwhelming evidence suggesting that social & economic conditions are prime determinants of the distribution of obesity and obesity-related diseases in many populations (certainly in the U.S.)
Indeed, as I have argued, this is one of the reasons WHY public health interventions targeted at individual lifestyle change are ineffective (because they leave untouched the structural, macrosocial factors that determine obesity prevalence and incidence). So, while I concur with the commentators that Cohen and Mello are not actually endorsing the kinds of interventions the OP is criticizing, I do think the reasons for the unacceptability of such interventions remains highly significant (and it is not primarily because of genetic discrimination, IMO — it is much more about social and economic discrimination, and of course, about fat stigma).