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

George at APHA II

By Scott Burris

(Second in a series of posts on the George Project session at APHA last week.)

Lindsay Wiley, who has been writing some interesting stuff lately about the democratic foundations of public health, used her talk to discuss Building and Honoring Coalitions in Controversial Times. Part of the George discussion has been directed to changing the public health law conversation from a set of complaints about setbacks to an exploration of new possibilities.  In thinking about the pivot from challenges to opportunities, Wiley has been focusing on opportunities to protect and strengthen coalitions across progressive advocacy communities and with other potential allies.

This issue arises in a range of contexts: from health and environmental issues surrounding food production, marketing, and labeling to employers’ and private health plans’ efforts to cut costs by providing incentives for healthy behavior. Wiley’s presentation focused on recent tensions between public health advocates and civil rights, anti-poverty, and anti-hunger groups. Within the public health community, she argued, we in public health law tend to automatically see public health goals as compatible with broader social justice goals. We claim social justice as the moral foundation of public health practice and advocacy.  But over the last few years – intensifying in the last several months – that synergy has been threatened.

Wiley discussed three recent controversies: the soda industry’s framing of the legal challenge to the NYC soda portion rule as a civil rights issue; anti-hunger and anti-poverty groups’ vehement opposition to proposed restrictions on the use of SNAP benefits to purchase unhealthy foods and beverages; and opposition to primary enforcement seatbelt laws based on concerns about racial profiling. Wiley’s examination of these events suggests that in some instances, the public health community needs to work more closely with civil rights and anti-poverty groups to promote a more progressive, ecological approach to public health issues and to make the case for health disparities as a civil rights and anti-poverty issue (rather than simply claiming civil rights or anti-poverty as public health issues). In other instances, public health advocates may be picking the wrong battles altogether, siding with groups who want to penalize socially and economically disadvantaged communities without working to facilitate healthier options in those communities. But in some instances, public health advocates have been able to forge compromises that result in a true win-win: promoting public health goals while also achieving reforms in other areas.

Like Wendy Parmet’s talk, described yesterday, Lindsay Wiley’s challenges the comfortable notion that public health is automatically given credit for its high moral standards and good social intentions. She doesn’t say we can’t occupy the moral high ground, but we may have to work harder to get there, and she has some practical ideas about how to do it.

Tomorrow: Renee Landers’s talk.

George at APHA I

By Scott Burris

The “George Project” is a loose collaborative of law professors working to promote the fair and effective use of law for public health. It has been described here. Last week, four George participants formed a panel to report on their intellectual adventures in the sometimes dicey world of public health law.  This week, I will report on their comments in a series of posts.

Wendy Parmet’s presentation, Beyond Paternalism: Public Health as Preemption, began by noting the agreement among George collaborators on the need to respond to the normative attacks being waged against public health laws. At the moment, the most salient of these is the “nanny-state critique,” which condemns public health law as inappropriately paternalistic. After reviewing some of the responses that scholars have offered to that charge, Parmet focused on the one recently proposed by fellow Georgians Lindsay Wiley and Micah Berman (and Doug Blanke) — namely that we need to frame public health as a manifestation of the democratic process. Parmet developed that theme by arguing that public health law is not simply a restriction of liberty, as the nanny-state critique presumes; it is also a manifestation of citizens’ positive liberty to self-govern. Or, to put it another way, public health law is the product of citizens exercising their rights to self-governance to provide the conditions by which they can be healthy.

After suggesting that public health can be viewed as an exercise of self-governance, Parmet looked briefly at two recent public health law cases. New York Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Department of Health, 110 A.D. 3d 1 (N.Y. App. Div. 2013), struck down New York City’s ban on large sugary sodas. Cleveland v. Ohio, 989 N.E.2d 1072 (Ohio. App. 2013), struck down an Ohio state law designed to preempt a Cleveland ordinance banning trans fats. In comparing the two cases, Parmet focused on the fact that the court in the New York case emphasized what it saw as the overreaching of a public health agency; in the Ohio case, the court noted that the state was improperly undermining the power of the city council to protect the health of Cleveland’s citizens. Although these are only two state law cases that depend on the particularities of state law, Parmet asked whether the fact that the New York City regulation emerged from an administrative agency without legislative support while the Cleveland ordinance was enacted by the city’s council was significant? Could it be that laws that emerge from a democratic process are more secure than equally paternalistic administrative regulations? More broadly, might the paternalism critique be masking a discomfort with the bureaucracy, expertise, and the administrative state?

Parmet concluded by arguing the public health needs to look in the mirror. Have we in public health undermined our own cause by treating public health law as a technical tool that experts can apply to achieve scientifically-validated outcomes? In so doing, have we lost sight of the fact that public health law is or should be a tool that citizens can use to improve the health of their own communities?

My own talk, which I will describe in a later post, was also about how public health is popular, but in the less profound sense of that word.  What I really liked about this panel, and Wendy Parmet’s talk exemplified this, was the willingness not only to point out how courts and commentators are neglecting the democratic roots of public health, but also how we in public health may be settling for overly simplified (and empirically false) explanations for our legal and political setbacks.

Tomorrow: Lindsey Wiley’s talk.

Another Legislative Win for Opioid Death Prevention

By Scott Burris

The rising public and legislative awareness of opioid overdose has been a case study in the twists and turns of culture, risk perception and the role of evidence in policy making. An interesting case study, which does not mean I understand what happened or why.

I first got involved in overdose through Dan Abrahamson, the Legal Director at the Drug Policy Alliance. This was back in 1999 or 2000, and a group of drug researchers and drug policy people convened a meeting in Seattle to discuss the chronic, neglected problem of overdose among heroin users.  There were a few health people who were highly aware of the human and economic costs, and the scale of the problem. Karl Sporer, a San Francisco ER doc, was one of the few publishing on the problem. One of the interesting ideas discussed at the meeting was distributing naloxone, the standard antidote for opioid overdose, directly to heroin users. New Mexico, which had the nation’s highest OD death rates, was trying it as a way to deal with the great distances that divided rural heroin users from EMS assistance. With Joanna Norland and Brian Edlin, I ended up writing an analysis of the legality of distributing this prescription drug to drug users.

In the next few years, led by people like Dan Bigg of the Chicago Recovery Alliance, needle exchange programs in urban areas began naloxone programs. They were spurred in 2006 when several US cities experienced an epidemic of overdose tied to the adulteration of the heroin supply with a synthetic opioid, fentanyl. By May, 2009, 57 naloxone programs were operating in 17 U.S. states.  That year, DPA funded a group of scientists and practitioners to brainstorm on how to increase drug users’ access to this life-saving intervention.  Read More

Bargaining Chips

By Scott Burris

Christopher Robertson recently posted here a semi-facetious suggestion of things that Democrats could ask for once the shut-down and the debt-ceiling dance turns into real bargaining. (How sad that this has to be seen as an optimistic statement.)  That’s a good idea. I think we should all join in populating the health policy wishlist.  Here’s one no-brainer.

Government is being starved, and taxes are going to have to go up somewhere.  There is no kind of tax that is not being hated on by somebody, and so no easy places to go, but there is such a strong case for raising alcohol taxes.  Alex Wagenaar, one of the greatest alcohol policy researchers we’ve produced in this country, makes a fantastic pitch for substantial increases in this short video, which is great for advocacy or teaching use.  In real terms, alcohol prices have not been lower for decades, while each drink comes with a subsidy of nearly $2 in health and health care costs we tax-payers end up paying.

So, Mr. President, how about a federal tax of $1.90 per drink, indexed to inflation.  And if there’s opposition, threaten to leave the government open!

To Our Friends and Colleagues in the Federal Service

By Scott Burris

Take-no-prisoners politics has been succeeded by hostage-taking politics. The metaphor could go a few ways, but in the most concrete sense the hostages are you, our friends and colleagues who work for the public’s health as federal civil servants.  You, who often accept smaller salaries and more spartan working conditions than you could enjoy in the private sector or academia; you, who devote your passions and considerable abilities to the cause of public good; you, who have already had to endure arbitrary furloughs and budget cuts that make it harder for you to do your jobs — you are the ones who are now being left on your own with the injury of no paycheck and the  insult of a lot of politicians and pundits saying that you aren’t really needed anyway.

I won’t apologize, because this is not the work, or the desire, of the citizenry. This is the work of a small faction of the far political right. I will say how sorry I am, how ashamed I am as the citizen of a once-serious country, that you are being treated this way, and how much I appreciate the dedication that is keeping you in your vital work.

P.S. As to the people who have taken us past the brink, the best I have to offer is a little political economy from our classic public health law case, Jacobson v. Mass.  You have every right to oppose the Affordable Care Act, and to use all democratic means to roll it back,

But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.  

“Mountain Dew Mouth:” A Critical Opportunity for Public Health Law

By Scott Burris

Last week, the American Journal of Public Health published a PHLR paper by Michelle Mello and colleagues calling for our field to identfy “critical opportunities” for public health law. Critical Opportunities are legal interventions that target important public health problems.  They may have a strong evidence base but be underutilized (like alcohol taxes that keep up with inflation). They may be ideas that appear to be working in practice, and have a plausible mechanism of effect, even if our evidence base still consists of early studies or reports from practice (like distributing naloxone to opioid users and their friends to reduce overdose death). And they may be innovations that are plausible because of how they appear to relate to the problem or because they are similar in mechanism to other legal interventions that have been proven to work (like restricting sales of single cigars).  The bottom line is that we can do a better job spreading the word about legal interventions that work and that policy makers and the public can get behind in states and localities around the country.

The Robert Wood Johnson Foundation has helped get the idea moving by supporting a series of videos in which public health lawyers, practitioners and researchers pitch their ideas for critical opportunities.  These are often done, like a Ted Talk, at meetings, and one of the audience favorites is Dana Singer’s pitch for action to deal with “Mountain Dew Mouth,” a term gaining in traction to name the devastating consequences of heavy consumption of sugary beverages, especially those with critic acid.  The issue is on the federal agenda as part of the debate about food stamps.  It’s a hard one: public health people see the terrible consequences of these products and think that ending the federal “subsidy” for them might reduce harm; SNAP advocates don’t like the idea of anyone telling poor people what to eat and drink; industry, well, you can guess. State and local beverage taxes are another option, and we know that taxes can reduce consumption of even addictive products.

NPR has a story on the problem and some of the solutions this week.  I’m glad to see more attention to this problem, because poor dental health can send anyone’s life on a harder course, and is a very big problem in Appalachia. If you don’t believe me, or even NPR, read Priscilla Harris’s paper and watch Dana’s critical ops video.

A New Film on HIV Criminalization

By Scott Burris

A new documentary from the HIV Justice Network gets the views of researchers on the impact of HIV criminalization.  Call it Evidencer-Based film-making.  It premiered last night at the US Conference on HIV and can be seen here. made by Edwin Bernard and Nick Feustel, it captures the issues and what we know in 30 minutes of interviews with some excellent researchers.

On a personal note: sometimes, you know, people who are, you know, being filmed at, you know, the end of the day are, you know, not always as eloquent as, you know, they would like.

When Prescribing Gets in the Way

By Scott Burris

I am not disputing the value of properly trained health professionals acting as gate-keepers to potentially dangerous drugs. And I am not taking on here the question of which health care professionals should be allowed to prescribe which drugs, though that is an important question on which the states vary quite a bit. Right now, though, there are at least three examples of important, even life-saving medicine that is being kept from people who need it because of rigid (or rigid interpretations of) state prescribing law, and the inability of the FDA to move quickly when its labeling no longer seems to meet the public interest:

1)      Epinephrine (in epi-pens) to treat severe allergic reactions.  Here’s a good story about that, highlighting a tragic case in which a child died because a school nurse would not or could not use epinephrine that had been prescribed for a different child. The story reports that 30 states now allow “undesignated” epinephrine to be used in these cases, but only four require it – and 20 still prohibit it.

2)      Naloxone to prevent death from drug overdose.  Naloxone is the standard treatment to reverse opioid overdose.  People usually suffer OD far away from a doctor, but often in the presence of someone who could administer naloxone by simple intramuscular injection or intranasal spray.  This year there has been quite a bit of legislative activity to break down this barrier to life-saving treatment, including a new bill passing both houses in California this week.  But only 16 states and the District of Columbia have acted so far.

3)      Expedited partner therapy for treatment of STDs.  It takes at least two people to get an STD, or prevent one, but often only one partner is seeing the doctor.  EPT gives the patient an extra prescription or dose for the partner.  According to the CDC, this is still illegal in six states and not clearly legal in 9, the District of Columbia and Puerto Rico.

There is evidence for the safety and effectiveness of all these practices, and has been for years. Why does it have to take so long for state prescribing rules, or FDA labels, to change?  We need a faster mechanism for keeing prescribing rules consistent with current practice and evidence. This is, after all, a matter of everyday life and death.