Updated: May 3
By Wendy E. Parmet and Elaine Marshall
I. Introduction: The Threat to Public Health
As we reach the COVID-19 pandemic’s third anniversary, the warning signs for the future of public health law are everywhere. In the past three years, courts, led by the Supreme Court, have endangered reproductive health and handcuffed governments’ capacity to meet a wide array of public health challenges. Along the way, courts have displayed an alarming disinterest in science or the impact of their decisions on the public’s health.
At the same time, many state legislatures have rushed to introduce bills to limit health officials’ ability to act to protect the community’s health. Between January 1, 2021, and May 20, 2022, at least 185 of such laws have been enacted.
In this climate, public health law needs introspection, imagination, and regrouping.
a. Introspection: The Insufficiency of Public Health Powers
In recent decades, public health practitioners and public health legal scholars have emphasized law’s power to promote health and reduce health inequities. New legal interventions have been deployed, often through administrative action, to address chronic health conditions, many of which disproportionately affect low income neighborhoods and communities of color. For example, in 2012, New York City’s board of health proposed a cap on the portion size of sugary sodas, a measure that was struck by that state’s high court. Many pre-pandemic preparedness efforts also stressed legal tools, including emergency laws, which could be used in response to a pandemic or other public health emergency.
We do not question the importance of emergency laws or the potential for legal innovations to improve health and equity. But COVID has underscored that laws alone are insufficient. Without strong leadership, clear messaging, public health literacy, and adequate resources for compliance, enforcement, and implementation, public health laws cannot achieve their goals. Equally, public health laws on their own cannot redress the deep-seated structural inequities, including systemic racism, which create health disparities and make it difficult for many populations to comply with the guidance that health experts offer.
To be sure, neither public health practitioners nor public health scholars can solve all of these problems. But public health law must unearth the relationship between these barriers and its own failings and develop a more complex conception of public health law, one that focuses less on the power of laws on the books and more on how laws play out in the real world.
b. Imagination: Educating the Profession about the Social Determinants of Health
One of the striking features of America’s response to COVID-19 is the degree to which political leaders of both parties have come to rely upon individual responsibility as the primary response to the pandemic. In important and profound ways, Americans fail to see the pandemic’s continuing social dimensions. In a nation that cherishes individualism and relies heavily on market-driven health care, this should not have been surprising.
Public health law cannot alter the nation’s underlying culture. But public health scholars, along with public health experts, can help educate leaders, particularly those within the legal profession, about the social dimensions of health and their relevance to law. In furtherance of that goal, with the support from the Robert Wood Johnson and WK Kellogg Foundations, our Northeastern University team has launched a program called Salus Populi. Named after the ancient maxim, salus populi suprema lex, the health or welfare of the people is the highest law, the program trains judges and lawyers about the social determinants of health and the scientific frameworks that explain how social forces impact health.
Importantly, Salus Populi does not focus on public health laws per se. Instead, it emphasizes the day-to-day cases that fill the dockets of family law courts, criminal courts, and specialty courts throughout the country. In such courts, judges determine the fate of litigants whose health is most negatively affected by poverty, systemic racism, inadequate housing, and myriad other social conditions. Our expectation is that by teaching the judges and lawyers who work in such venues about social determinants, courts may issue rulings that are more supportive of health and equity. If health equity is to be achieved, those with influence within the legal system must understand how their actions affect health.
II. Regrouping: The Long Game
Finally, public health law needs a long game. The legal decisions that threaten health have emerged from a fifty-plus year strategy that seeded the courts with far-right judges and promoted legal frameworks that those judges now employ. In response, public health law needs its own long-term plan. Such a strategy must go beyond marginal reforms to re-establish salus populi, the recognition that public health is central to law. Such an approach would do for legal reasoning what health in all policies does for public policymaking: insert a population perspective and a focus on equity into all aspects of legal decision-making. Achieving that goal won’t be easy and will require reaching out to many partners from outside of public health law and practice. This means listening to and partnering with both community groups as well as experts from other fields. It will also require us to reconsider and, where necessary, revise our own verities. Most importantly, it demands that we take a long-range view, and recognize that only by looking past today’s defeats, can we lay the foundations for tomorrow’s victories.