Why Do Refugees Risk the Deadly Boat Crossing to Europe? It’s the Law

By Scott Burris

This morning I heard an NPR story that began, “Why do so many refugees from the Middle East risk the dangerous Mediterranean crossing in rickety boats?”  The answer, in the story, was an account of the miseries of a family stranded in Aleppo.  Why do people risk so much to flee? Because life is so bad where they are.

There is plenty of misery in the war-torn Middle East, but if the question is “why do people flee in dangerous boats run by ruthless smugglers,” NPR did not have the right answer.  Hans Rosling, the Swedish epidemiologist and humanitarian, has offered a better one: the EU regulation that requires airlines that fly in asylum seekers who do not qualify to fly them out again at the airline’s expense. (Watch his video here.) Airlines just won’t allow people without the proper visas to board, even if the law would. Yes, it’s the law that puts people on boats.  Flights from the region’s airports to Europe are cheaper than the deadly boats.  As we are seeing now, many if not most of these refugees qualify for asylum.  EU law does not require asylum seekers to have visas or be granted asylum before they board the plane.  But by placing the economic risk on the airlines, the EU essentially delegates the asylum decision to the most risk averse and least responsible player in the process.

Here’s the math.  The Abdullah Kurdi family of four, whose two children drowned, reportedly paid €2,000 each for the trip, well over $8,000, to get from Turkey to Greece.  On Travelocity today, German Wings had a flight from Istanbul to Berlin with seats at $84.

Building on 20 Years of Success: The Future Role of Law

By Scott Burris, JD

On this, the last day of National Public Health Week 2015, we’re looking forward by looking backward. There is nothing new about using law and policy to promote healthier environments, products and behavior. There is no good future for public health that does not include even more, and more effective, legal interventions.

Evan Anderson and I wrote in 2012 about the legal regulation of health-related behavior over the past half-century. The story we told offered several reasons for unabashed optimism about what law can do for health. The record is clear that law works, and works across a wide range of different health threats. We pointed to CDC lists of Great Public Health Achievements from the last century and the first decade of the 21st.   Every one of them — from high levels of vaccination, through motor vehicle safety and cancer prevention to maternal and child health – could not have been successful without law and policy. Read More

Courts as Ebola Educators

By Scott Burris

News in this afternoon is that a Maine state judge has lifted the quarantine order on nurse Kaci Hickox, saying that she “currently does not show symptoms of Ebola and is therefore not infectious.”

The ruling conforms to the best available scientific evidence and CDC recommendations.  It also shows the importance of judicial review as a check on the exercise of emergency powers. Hearkening back to the many school exclusion cases during the HIV epidemic, I hope it will help reassure a public confused by the gap between what CDC and other experts say is necessary and what some political leaders are doing.  The best way for government to keep our trust in this outbreak is to offer accurate information — and then behave accordingly.

Research Round-Up: New Publications from the PHLR SciVal Experts Community

In honor of last week’s National Public Health Week, we have a lot of fresh, new PHLR. The latest crop of papers from public health law researchers touch on a number of important points and issues including transportation safety, implementation, tobacco control, and media presentation of public health law. Check out Scott Burris’s brief summaries after the jump!

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Evidence in Policy Innovation

In the last few decades, there has been a broad effort to strengthen the use of evidence-based law as a tool for the promotion of population health. There are two major fronts in the campaign, each essential, and both largely successful, though much work also remains. One aims to increase the quantity and quality of empirical research on the health effects of existing policy choices. The other focuses on how best to get such knowledge into action in the form of policy and practice. In a new PHLR Theory Practice and Evidence paper, Evan Anderson and I draw attention to a third front: the formulation of new legal interventions. Though policy experimentation is inevitable, it has been the subject of relatively little systematic study. For proponents of evidence-based public health law, policy experimentation presents a paradox: if a legal intervention is truly innovative, there will not yet be direct evidence of its impact. Yet direct evidence from policy evaluations is never the only source of research knowledge relevant to a policy decision, even under conditions of novelty and uncertainty. And few interventions are truly new in a broad sense; in most instances, similarly designed laws have been deployed before, just not for the same specific purpose.

We use the case of youth sports concussion and Washington’s Lystedt Law as a case study of how even new legal strategies dealing with new problems can be built on evidence. We show  how evidence about the problem lawmakers are addressing, combined with widely-used analytic tools like the Haddon Matrix and an understanding of the generic mechanisms through which law influences behavior and outcomes, can bring existing research knowledge into the crafting of even very innovative legal interventions for newly perceived problems.  While we don’t expect the policy sausage factory to suddenly start looking like a research lab, there’s no question that legislators typically care about getting policy right and want evidence.  The point of our paper is to get the research world to think about ways we can help even when no one has yet studied the specific law at issue.

New PHLR (and George) Papers

Laura Brennan, Ross Brownson and Tracey Orleans have come out with an important paper reviewing the evidence on policy and environmental strategies for reducing childhood obesity. Twenty-four strategies and 2000 published and gray literature documents are covered.  This is a menu of more-or-less evidence backed ideas for intervention.

Sam Harper and colleagues come out with an interesting new argument for primary seat belt laws, based on a disparities analysis. Looking through the lens of education level, they  (well, we, since I am one of the authors) find that, while primary enforcement has a powerful affect at every educational level, the impact is greater on people with less education.  Thus, existing SES differentials in seat belt use could be reduced if all states (finally) went to primary enforcement.

Even kids like paternalism?  Well, that may not be the best interpretation of this next study. Williams and McCartt surveyed New Jersey teenagers about three GDL requirements that are unique to that state: minimum licensing age of 17; application of full GDL rules to beginners younger than 21; and requiring license status decals on vehicle plates of GDL drivers.  84% liked licensing at 17, and 77% approved applying Gthe rules even to older novices.  The decal policy was approved by only 23% — but a PHLR study showed it works, so I say get used to it.

Two new tobacco law studies round out the week’s harvest.  Heikki et al. map the diffusion of health warning regulations since 1966, showing a big impact of the FCTC. Finally, in a paper that may start some arguments, Kevin Callison and Robert Kaestner report that adult smokers may not be as responsive to cigarette taxes as many believe.  They suggest it will take increases on the order of 100% to get a further 5% reduction in smoking rates.  Well, I’m okay with that.

Over on the George side of things, Peter Jacobson and Wendy Parmet have posted a thoughtful response to Larry Gostin’s Bloomberg commentary in the Hastings Center Report.  They are helping us move away from a habitual application of the paternalism critique and reminding us that public health can play in the democracy sandbox pretty well.

Down with Antipaternalism!

As the holidays approach, I have a chance to catch up on reading.  The Sept-Oct issue of the Hastings Center Report had a paper by Larry Gostin on Michael Bloomberg’s health policy career in New York, and I have seen some of a series of responses by other scholars that will appear in due course. With his usual facility, Gostin recounts the story of Bloomberg’s health department and its innovations in policy – it’s a great piece for a health law class.  The piece is also typical Gostin in its framing of the issue of paternalism as a key driver of opposition to many of Bloomberg’s initiatives.  And if it is typical Gostin, it is really representative of our field, since Gostin has both drawn on and helped reinforce a widely held belief that the politics of public health are strongly driven by a tension between individual liberty (inscribed legally in civil rights and culturally in individualism and antipaternalism) and public health.

In this framework, paternalism is a premise, not a hypothesis. Gostin writes, “The societal discomfort with Bloomberg’s agenda is grounded, at its core, in distrust of government influence on how autonomous adults conduct their lives.” He describes how health policy-makers are driven to rely on the harm principle to justify policies by “American antipathy toward paternalism.”  Yet, and this is also typical of the discourse in our field, he also follows the Sunstein-Thaler line that ultimately denies the empirical assumptions upon which anti-paternalist claims depend: “The public health approach rejects the idea that there is such a thing as unfettered free will, recognizing instead that the built environment, social networks, marketing, and a range of situational cues drive complex behaviors.”

Public health law has been stuck here for a while, accepting that public health policy has and always will be subject to the arbitrary dominion of a mass delusion of autonomy.  I think this log-jam is starting to break – and that proponents of effective health laws should be doing all they can to properly discredit and abandon this old trope.  A few signs:

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New Data on Drug Overdose Law

By Scott Burris

Working with Corey Davis of the Network for Public Health Law, PHLR has completed and posted updated longitudinal datasets of state laws authorizing naloxone distribution and creating “Good Samaritan” immunity for callers reporting a drug overdose to 911. Take a look at www.lawatlas.org.

On the theory that an image beats a few hundred words, here’s a report on the state of the law:

George at APHA IV: Happy George

By Scott Burris

This is the last in a series summarizing a panel from the George collaborative of law professors at last week’s APHA meeting. My talk had a smiley icon for a title and a rant for a structure. I wanted to engage the audience with two very general ideas:  that public health legal interventions are popular, and that we are both factually and strategically wrong to buy into the framing of public health law controversies as turning on principled questions of paternalism or tensions between individual rights and collective welfare.

The first is a point I have made in past posts of one kind or another, and that Evan Anderson and I elaborate in our article just published in the Annual Review of Law and Social Science.  In that article, we point to the fact that Rs and Ds have been happily passing laws that regulate our behaviors, our environment and our machines for public health reasons for decades and show no signs of slowing down. In the talk, I also reference the Morain and Mello Health Affairs piece on pro-public-health public opinion. At PHLR, we are working on another aspect of all this, the fact that a lot of the controversy and complaint about “intrusive” measures often dies down once the new behavior is adopted.  We don’t have a paper on this yet, but just ask yourself who misses smoke-filled rooms, transfats, cars without airbags…   And of course, as Mayor Bloomberg makes his exit as the symbol of the local nanny state, it’s worth recalling his poor paterniated charges re-elected him twice.

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George at APHA III

By Scott Burris

One of the themes of what we might call Georgian Legal Scholarship has been the neglect of public health as a core object of government. This is a theme Wendy Parmet set out at length in Populations, Public Health and the Law, and that Renee Landers took up at APHA.

Landers’ timely example was the ACA and its individual mandate, which has been characterized in litigation as a mandate to purchase an “unwanted” product in violation of individual liberty, exceeding Congress’s power under the Commerce Clause, not a valid exercise of Congress’s Taxing Power, and an intrusion on the prerogatives of the States.  The Chief Justice’s opinion in the Supreme Court’s decision in NFIB v. Sebelius, upholding the individual mandate, but declaring the structure of the Medicaid expansion a violation of the Tenth Amendment, provides her many examples of the focus on these legal abstractions. She also points to language from the joint dissent that indicates the same limited perspective.   Absent from the opinions was acknowledgment of the significant public health problems—human suffering—that the ACA was designed to address.  As she sees it, a focus on abstractions over lived experience has resulted in millions of intended beneficiaries of the ACA being left out of the Medicaid expansion because 26 states have taken advantage of the ability to opt out of the Medicaid expansion.

Landers argued that this was not a problem confined to the ACA case. Courts have reasoned in similar ways in recent public health preemption, First Amendment and abortion cases, showing a disregard for real human situations or scientific and economic evidence.   To her, these recent examples echo the approach of the courts in the early part of the twentieth century when the Lochner case defined judicial review of economic and public health regulation, as Wendy Parmet has discussed in Populations, Public Health, and the Law.  Public health lawyers and scholars, she concluded, must work to demonstrate for courts that role of economic regulation in promoting the public health, elevate the concerns of real people above legal abstractions, and lift the mask on punitive measures masquerading as public health laws.

Tomorrow: Happy George