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Failures of Imagination in Public Health Policy

By Daniel Swartzman

If public health is to prosper, we will need to overcome the after-effects of several failures of imagination.

  • Failing to recognize the threat to liberal democracy from the last 50 years of coordinated conservative political and policy actions.
  • Failing to use litigation against inadequate public health actions, as did the early civil rights and environmental movements.
  • Failing to anticipate litigation that challenges our efforts, such as with the ACA or the upcoming attempt to “codify Roe v. Wade.”
  • Failing to demand moral leadership of governmental actors.
  • Failing to make political action and advocacy an integral part of professional education in public health.

A coordinated conservative agenda

Over the last 60 years, we have failed to imagine that there might be a nationwide effort to establish a new ideology to replace the New Deal concepts many of us grew up with. This replacement, “neoliberalism,” has as its central tenet that markets are, in all ways and at all times, superior to government in allocating societal resources. Since markets are inherently individualistic and the basic unit of analysis of public health is the community, this ideology was and is antithetical to our goals.

Should we have seen this coming? Absolutely. Listen to Ronald Reagan, in 1961, speaking on a vinyl LP explaining the position of the AMA on health care reform legislation or George Wallace in his 1963 inaugural speech as Governor of Alabama. Their words sound as if they were spoken only yesterday.

With more imagination could we have anticipated (or pre-empted) the rise of the Federalist Society, the absolute fetishization of individualism that has occurred in the last 60 years (with its accusations of “nanny state”), the conservative attention to local elections and their impacts on redistricting that led to difficulties in producing legislation that is favored by the majority of Americans, but opposed by favored and disproportionately empowered minorities?

Litigation on behalf of public health

I tell my classes that one of the hallmarks of American jurisprudence is that the law can change when some lawyer somewhere gets an idea for a piece of impact litigation. Witness the success of environmental policy litigation in the ’70s.

That is why the ACA’s Medicaid expansion doesn’t exist in 11 states, why the penalties for failing to have insurance under the “individual mandate” has been set to $0.00. Because conservative lawyers understood that they could change public health by bringing a creative argument forward in the courts.

What are we doing on that front? Do we have people thinking about how to sue Fox News, pundits, and political candidates for their lies? Maybe some form of public nuisance litigation? Or an extension of the doctrine of public fraud? Finding individual plaintiffs who have been injured by these lies and are willing to serve as plaintiffs in class actions suits? Have we reached out to state attorneys-general to bring nuisance cases against the bold liars that dominate our public debate, similar to what their colleagues did in the tobacco litigation?

Successful litigation against public health programs

There is a concerted effort by our current opponents to use litigation strategies like those advocated above. They brought at least five significant lawsuits designed to impede the Affordable Care Act, restricting the positive impact of the ACA’s Medicaid reforms and the use of the individual mandate. They tried to scuttle the federally run insurance exchanges and almost got the entire ACA thrown out.

But we do not seem to have learned the lesson that all of our legislative advances will be routinely challenged in the courts. We are not imagining what obstacles lie ahead if we were to “codify Roe v. Wade.” For instance, which Congressional power enumerated in Article I, Section 8 of the Constitution would support such a law? After an earlier, less conservative Supreme Court threw out the ACA’s individual mandate, what right do we have to take for granted that this new law will survive? We should have public health lawyers and constitutional scholars reviewing the language of such bills to decrease the chances of successful lawsuits.

Lack of moral leadership

In the late ’70s, I threw myself under a series of moving trucks on behalf of public health positions that were initially unpopular, but which ended up being accepted by the public – seatbelt requirements, bicycle helmet laws, laws limiting smoking in public places, air pollution regulations on steel mills. Public health exercised leadership on those issues and the public ended up following that leadership.

Today, too many of our titular leaders lack the imagination to see how that works, afraid of making these choices for fear of public dispute. But public health leaders have a moral responsibility to make such tough decisions, requiring masking, requiring vaccinations, requiring contact tracing, requiring systematic tracing. After initial disputes and over time, they will gain followers if such requirements are presented as morally required. We might not always win such battles, but if we aren’t willing to join the fight, we will always surely lose.

Part of this failure of imagination is our movement’s unwillingness to frame its arguments in terms of moral righteousness. For instance, many of our colleagues now state the Police Power as empowering states to protect “health, safety and well-being.”

The traditional definition of the Police Power is the responsibility of the state to protect “health, safety, morals and general welfare.” (Emphasis added.) What is missing from the revised definition of the police power is the responsibility to take moral action to protect the public. Many in public health have failed to imagine that the public will support our efforts in addressing our most pressing problems, if we state them as moral obligations. It is not just a scientifically better position to be in favor of strong masking requirements. It is also the right thing to do from a moral standpoint. Whether to wear a mask in the face of the spread of an infectious disease is not just an individual choice; it is a moral responsibility for someone who has chosen to live within a community. What I do affects all of you. Therefore, all of you have a right to make a claim against me, asking me to live up to my responsibility to protect you.

Environmental protection has been pursued for 50 years as a scientifically sound proposition. But it is more than that. It is the morally correct position as well. This is why aggressively addressing climate change is morally required. Those of us who have benefitted greatly from the industrial actions that have largely caused the threat of climate change have a moral responsibility to those who are being hurt by the problem, but did little to cause it.

Moreover, our grandchildren and great-grandchildren will be dealing with the problems that we and our parents caused. Don’t we have a moral responsibility to our progeny for the world we have passed on?

Teaching political action and advocacy

Some of our leaders have started to argue that every public health professional ought to understand the country’s political decision making processes and how to be an advocate within them. Yet a recent proposal I reviewed on emphasizing public policy in public health curricula failed to include classes to understand the nature of U.S. politics and the fundamentals of advocacy. How do we imagine a better result to the next epidemic if our future leaders are no better prepared than those who didn’t do all that well against COVID-19?

We have also failed in imagining the proper leaders to appoint to address large public health campaigns which mix science and power. Michael Lewis, in his book on the pandemic, The Premonition, suggests that CDC was not the right organization to tackle this problem. CDC has some of our most talented scientists and an infrastructure that, in less stressful times, has done excellent work in conducting new studies and developing new ideas. But there is nothing in the background of the recent leadership of CDC that suggests that they are up to the task of being what Lewis calls “the battlefield commander” of a nationwide campaign, rife with conflict and political shoving matches. Contrast that with the history of Administrators for EPA, who have been politicians and lawyers and policy advocates. Either the background and experience expected for CDC’s leadership must change (which might mean having someone other than medical personnel as the Director) or another federal agency must lead us in the fights ahead. And all of us must be educated in the techniques of policy advocacy, not the least of which is first-class skills for communicating with the public.

For the last sixty years, and continuing today, we have been and are being out-thought by a coordinated national effort to maintain a policy climate that supports conservative ideas, to the detriment of public health. Somebody, decades ago, thought that through and it has been implemented brilliantly. We must exercise our own imaginations to counter these efforts and empower public health again.

Daniel Swartzman, J.D., M.P.H., is an associate professor of Healthcare Administration and Public Health Sciences at Loyola University Chicago’s Parkinson School of Health Sciences and Public Health.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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