Where Are We Now: Post 5, Ways of Being Wrong – and Opportunities to be Right

By Scott Burris

The main contests (a summary of previous posts):

A lot of people in public health practice seem to be (appropriately) concerned about our public health infrastructure – the agencies within public health systems where day to day work is done. Public health infrastructure tends to get taken for granted and neglected. Core prevention activities, from surveillance to restaurant inspection, easily become invisible.  Health agencies become collateral damage in the war on government.  Our challenge here is to get noticed and appreciated – and to deserve it by being demonstrably effective, efficient, smart. Legal infrastructure is a meaningful part of this, so there is work for legal academics both in institutional design and in helping health agencies use their legal authority effectively and creatively.

In public health law (and PHLR), most of us tend to be working on legal interventions. Public health work can be pretty straightforward and even popular when it has to do with preventing proximate and substantial harms, and this is true even when the legal intervention involves changing behavior. Law changes norms and expectations, so initial resistance often gives way to acceptance.  The fact that sometimes the industry whose profits are implicated can fight back, and even win, defines the hard part of the game – and challenges our field to be more legally and politically effective.

Then there is a third game, in which public health (in a not altogether new or unprecedented way) has concerned itself with the structure of the healthy society, and (perhaps to an unprecedented extent) taken on distal contributors to complex, multi-factoral health threats, case in point obesity.  I’m not sure we have an effective game plan for this. But in each case, there are things we are doing poorly – or that we should think about doing better.

Challenges and opportunities:

In public health systems, the biggest internal barrier to success may be what Roberto Unger called “institutional fetishism” – the belief that existing institutions and organizational structures are the ones that can best deliver the public goods we want. Our opportunity is to ask whether, were we starting from scratch, we would organize the work we do the way we have.  Would we have public health agencies with the particular jurisdictions and powers they have now? Would we even call it “public health,” with all the cultural baggage (and possible communication challenges) that term carries?  Spain, for instance, has a national ministry called Health, Social Services and Equality. In addition to traditional public health functions, this agency is also responsible for anti-discrimination, consumer products, social inclusion and child and family protection.  In the new South Australia public health law, specific topical health regulations have been augmented by a “general duty” on industries to avoid harm to health.  While we fight for resources and authority for public health, we have an opportunity to think afresh about institutional design for the work ahead, and even to ask whether the old idea of “public health” best captures everything we want to do.

It is always important to complain about silos – because we are organized into them and they shape our views and work.  Too many resources are locked into activities that reflect past understandings and priorities. Too many people are trying to meet the same challenges on their own, neither learning from nor helping each other. The field of PHLR itself is a good example. We have auto-safety researchers, gun researchers, HIV researchers, emergency-preparedness researchers, tobacco researchers, obesity researchers – but it is taking a substantial investment in coordination field-building to get us to work together to advance research methods and the broader cause of evidence-informed health policy.

Silos compete for resources and that includes space on the political agenda. Spending within silos is not necessarily proportional to overall impact on health. They are self-perpetuating, so rarely do we see a subfield declare victory and disband – there is always a marginal improvement to be had. Overall, internal divisions and the sense that different groups are doing different things have weakened public health. Meanwhile, the people who want to shrink government generally, and those who oppose particular health regulations, have invested heavily in long-term collaborative strategies to comprehensively win the battle for ideas and votes in legislatures and courts. Public health practice is pretty well organized, but mainly in the continuing fight for appropriations. Building the appetite for regulatory interventions, let alone action on more distal influences on health, has been left to the silos that feel like leaning that way, and they generally focus on their particular priorities.

I am not suggesting some centrally conceived five year plan of public health law work.  No, we need what the other side has – effective mechanisms of coordinating independent nodes in diverse networks.  The people who are beating us have done very well in at least two key respects.  First, they have developed big ideas that guide (and are strengthened by) independent action by network members: the government doesn’t work, so taxes are a waste; the market does, so regulation by bumbling government does more bad than good.  Or, to take a more narrow example, the idea popping up all over that government has no in influencing consumption of “lawful products,” which a wide variety of industry advocates can use in a mutually reinforcing way. Once those big ideas prevail, public health advocates are always playing up hill.

Second, they have invested heavily in what Peter Drahos calls “superstructural nodes,” (The language of nodal governance thinkers can seem wonky, but the ideas are really useful in understanding the political scene.)   Superstructural nodes are entities like the American Beverage Association or the Cato Institute, are “the command centers of networked governance,” entities that (1) link otherwise unconnected networks, and (2) concentrate resources (money, expertise) to influence the course of events. In a world of networked governance, the capacity to get, interpret and use information fast is key to success. The quick and well-organized set the agenda, while the rest of us spend our time responding. TRIPS is a classic example of this: people concerned with access to medicines only caught on and started to fight in a big way after the treaty was a done deal.

As the story of the Powell memo makes clear, business got the idea of political organizing and effective advocacy from progressive social reformers. Our opportunity is to recommit to these techniques and ramp up our game.  We don’t have the resources that big businesses have, but we are not poor. First of all, a lot of what we do can be good for business, so sometimes we have allies in the private sector. And we have a huge not-for-profit sector. And, looking closer at home, academia provides billions of dollars every year in salary support to people who are supposed to be devising, testing and sharing new ideas.  We have to think about the networks aligned with health goals, and what sort of institutions we need to effectively link and coordinate them.  There are many examples of public health and other “weak” actors using network strategies guided by superstructural nodes to accomplish their goals.

We also need some big ideas that link together our individual efforts into a broader campaign, one in which our individual wins help us all, and are designed to. Every public health intervention should stand, in part, as a representative of and argument for an idea like – “we are in this together,” or “government was created to work for the people’s welfare,” or “markets don’t work if they don’t work for people.”  (Just off the top of my head.)

And that brings me to my final way we are wrong, which I sum up as moral minimalism. I’m invoking Jonathan Haidt, so let’s start with that: too often, public health defaults to a pretty narrow liberal morality rooted in fairness and prevention of harm, when it puts its wonkishness aside enough to invoke morals at all.  I am not saying everyone who supports vigorous public health action is liberal, but the classic arguments for our work are basically utilitarian and egalitarian. This feeds some terrible habits as far as winning political support is concerned:

The Rational-Scientific Superiority Complex – we treat evidence the way believers treat God, expecting its invocation to define the right path and silence debate. And we treat those who do not believe as heretics –well, as idiots or corporate Quislings, anyway. It seems to be empirically incorrect to say that criminalizing HIV exposure reduces incidence, but there is no factual error in asserting that having sex without informing a partner is wrong. If we want to change minds (and policy), we have to be able to talk in moral as well as factual terms, and respect people whose morality differs.  We will have to accept, moreover, that there are values at least as high as salus populi, and sometimes people may prefer to pursue those other values over health.

Public health = the left.  We tend reflexively to associate democrats with good public health and republicans with the end of all good things. But this is, as we also know, not really true: democrats are often indifferent to our cause, and even today we have staunch support for a lot of public health on the right.  This bad habit ties us to the scourge of hyperpartisanship, which is the enemy of any sensible action to make life better. AND THAT, I THOUGHT, WAS OUR CAUSE.  We can and should be able to talk to anyone, regardless of their party, about what matters to us and why we think it can make things better. Labels don’t start conversations, and don’t change minds.

Moral dis-ability: effective advocacy appeals to powerful values, and, admit it – we’re mostly the people who cringe at the thought of wearing a flag pin. But why?  Why do we cede most of the moral high ground to people who may be no more moral – or even more conservative – then we are. I like equality and preventing harm as much as the next leftist, but I also tear up at self-sacrifice, defer to the dwindling set of people older than me,  value loyalty and see the good in self-control.  I think it is dishonorable for legislators to put re-election over doing the right thing. I think it is unpatriotic for people to avoid taxes or otherwise conspire not to pay their fair share. Why just argue that needle exchange prevents HIV when I can evoke the Prodigal Son and the values of loyalty to our wayward children?

We have been so narrow in our advocacy and our introspection about values that we have a tremendous opportunity to expand our platform and our appeal. This is especially important with regard to the third game – the society of shared well-being and happiness (just trying some different formulations). It’s nice if equality or happiness or decent housing or good schools are good for health, but why shouldn’t we talk about selfishness as a national crisis? Why aren’t we invoking the sacred trust we place in our leaders as we demand good government from the right and the left?

I’ll end on a question, which is what this series of posts has been about. Apologies to anyone these ravings have offended. Next I hope to report on what a collection of smart law profs and friends have to say about how we can best pursue salus populi.