Current Controversies in Public Health Law
Symposium celebrates the release of Public Health Law by Professors Wendy Mariner and George Annas.
On April 6, students, faculty, and scholars came together to celebrate the recent release of the second edition of Public Health Law by Wendy Mariner, professor of law and Edward R. Utley Professor of Health Law, and George Annas, professor of law, William Fairfield Warren Distinguished Professor and chair of the Health Law, Bioethics & Human Rights department. Frequent collaborators, Annas and Mariner have joined efforts on numerous projects, including a paper on informed consent and the first amendment published by the New England Journal of Medicine in April and amicus briefs submitted to the US Supreme Court in cases involving health law issues such as the Affordable Care Act.
Public Health Law, a casebook for use in schools of law, public health, and government or policy, examines the contemporary and evolving scope of the public health field and the many domains of law that shape it. The work highlights constitutional issues regarding public health laws, such as the balance of state and federal power, as well as relationships among public health, morality, and religion. These and other topics illustrate different conceptions of what counts as a health risk and whether responses should be grounded in public or private (or any) law. Several chapters also include case studies of specific public health problems, such as chronic diseases, health information privacy, weight, firearms, drugs and alcohol, which analyze the political and legal parameters for defining and addressing the issues.
The symposium, held in the Boston University School of Public Health (SPH), was more than a release party—it was an opportunity to discuss the current issues in public health law. Sandro Galea, dean of BU SPH, introduced the symposium by explaining that Mariner and Annas insisted the book release celebration be an “intellectually stimulating event with substance.”
Three guest speakers comprised the panel for the symposium: Robert F. Meenan, special assistant to the president of BU and former dean of BU SPH, Wendy E. Parmet, George J. and Kathleen Waters Matthews Distinguished University Professor of Law and director of the program on health policy & law at Northeastern University School of Law, and Dolores L. Mitchell, executive director of the Commonwealth of Massachusetts’ Group Insurance Commission.
Belief Systems & Individual Freedoms
Meenan kicked off the discussion by sharing memories of his days as a student at BU, where he took an Introduction to Health Law course with Professor Annas. “That experience gave me an appreciation for three central features of health law: its immense power, its innate beauty, and its compelling content,” Meenan said. He explained how these three qualities come together to create a field that is remarkable and universal, and that “has the power to move entire states and nations.”
Meenan highlighted two issues he sees as important in the current agenda for health law and policy. The first is the divide between knowledge and belief, and the contrasting roles of spirituality and logical, scientific studies. “Health law must battle with beliefs that continue to contradict sound legal reasoning and established case law,” he said. “It must continue to be a bulwark against the rising tide of fundamentalist belief in American life.”
The second issue Meenan posed is the battle between “individual freedoms and communitarian welfare.” He illustrated this controversy with the analogy of crying “fire” in a crowded theater—prohibiting such behavior is a reasonable restriction on individuals’ first amendment right to free speech, Meenan noted, because it balances individual freedom with public welfare. “Health law will need to help us recognize and accommodate analogous limitations among other perceived rights, such as the right to be free from vaccination,” he said.
The Concentric Circle Model
The next speaker, Wendy Parmet, used the Ebola epidemic in Africa to illustrate the issue of coercive governance versus individual legal rights. She introduced her concentric circle model of health law and its impact on public health. The model, comprised of a single circle with several rings around it, places the most frequently discussed issues in the center circle, while the outer ripples represent less visible issues. “If we really want to understand the effects of public health law, we need to look at all the ripples,” Parmet said.
As soon as the Ebola outbreak began this past year, law became a “coercive authority” with a focus on quarantining the afflicted. This authoritarian reaction downplayed the importance of civil rights. Parmet explained that although many people think that individual rights in the face of a deadly epidemic limit public health, these legal rights protect against misguided and ineffective responses. The laws that establish the parameters of our health care system and the government’s extent of power, she said, affect how our health care system responds to epidemics like Ebola. “That’s part of the power and the beauty of public health law: it’s not only about the authority, and the coercion, and the limitation on individual rights,” Parmet said. “It’s really about the many complex, myriad, and often invisible ways that law can be used to keep us safe.”
Health Law and Wellness
Dolores Mitchell closed out the panel with a focus on wellness, highlighting the divide between wellness incentives and public health, the lack of evidence of effectiveness of employer wellness programs, and the potential for discrimination against employees based on wellness. She began by proclaiming that “long-term solutions are better than quick fixes” when it comes to both individual and public health. She then moved into a discussion of employers rewarding or penalizing their employees for health habits. Citing examples of companies that refuse to hire smokers, Mitchell illustrated the questionable influence that employers have over employees’ off-the-clock behavior. She extended this example to the influence of doctors and health care providers over their patients. “It’s time to come to grips with the larger question of whose role is it to choose what to do with, for, and about our patients and employees,” Mitchell said.
Mitchell also addressed the issue of efficiently implementing wellness into a society with budget constraints. One solution she suggested was to develop social programs and wellness incentives in the public interest, such as public transportation, bike lanes, and safe playgrounds. Most important, she said, is to support education, which most clearly correlates with health. She closed her discussion by noting that if we “help to create good in society, wellness can develop organically.”
A brief question and answer session followed the speakers’ presentations. Dean Galea concluded the symposium, noting “It’s these kinds of tough questions that make the work in these areas so interesting. And it’s the difficult questions that we don’t have the answers to that keep us coming back.”
Reported by Johanna Gruber (CAS’17)