Lindsay F. Wiley, Rethinking the New Public Health, 69 Wash. & Lee L. Rev. 207 (2012).
As New York City Mayor Michael Bloomberg left office, commentary on his public health initiatives abounded; the reviews ranged from lauding him as an innovative pioneer to painting him as a meddling nanny-in-chief. At the core of these contrasting views lies a sharp divergence in how commentators understand the scope of the state’s proper interest in protecting its citizens from today’s primary threats to their health, threats posed by chronic and non-communicable conditions such as obesity, diabetes, heart disease, and cancer. Does the state’s interest in protecting public health—and thus its police power to advance that interest—extend to combating such conditions’ growing prevalence? Or is the state’s public health authority limited to addressing health threats like those that historically have occupied public health officials, threats like communicable diseases, tainted food, and unsafe water? In short, what makes health threats “public”?
Lindsay Wiley’s article “Rethinking the New Public Health” reconsiders this debate and suggests a novel approach to finding a middle path between the public health expansionists (who view any problem diminishing the health and longevity of a significant number of people as a public health problem subject to regulatory intervention) and the public health minimalists (who would confine the state’s regulatory authority to addressing those collective threats against which responsible individuals cannot protect themselves). By identifying and analyzing a common strand of thought in public health and public nuisance law, Wiley provides a theoretical basis for identifying those “public bads” that are properly targets of public health interventions. Wiley would define those “public bads” as having not only economic, but also epidemiological meaning.
Wiley proposes the concept of “epidemiological harms” as comprising harms to the public collectively that justify state intervention. She defines these as harms “for which causation can be established at the population level, but not necessarily at the individual level” and views them as nonconsensual and indivisible harms posing collective action problems, and not simply an aggregation of individual choices and exposures. Examples of these “public bads” justifying public health intervention include exposure to lead paint and access to cheap cigarettes. While it may be nearly impossible to prove that any particular person benefits from measures requiring lead abatement or taxing cigarettes, epidemiological studies can establish a link between these measures and improved health outcomes at the population level. As Wiley points out, in this sense, harms found in the social, economic, and information environments (e.g., “the overrepresentation of fast food outlets and underrepresentation of full service grocery stores in low-income neighborhoods”) can be viewed as threatening an entire community in much the same way that industrial emissions or smallpox do.
I really like this article, for several reasons. Wiley carefully links the contemporary debate over the proper scope of public health law to its historical heritage. She highlights that even the “old” public health (which battled poor sanitation and communicable diseases) was new at one point, and that public health law has continually evolved as public health science has advanced and the nature of the greatest threats to health has changed. She deftly explores the parallels between public nuisance law and public health law and draws upon the insights of the science of epidemiology, particularly social epidemiology, to expand our understanding of “public bads” beyond the traditional understanding.
This article advances the project of developing a theoretical foundation for government efforts to address the social, environmental, and economic determinants that decrease a population’s health overall and that often produce or exacerbate health disparities among different demographic groups. At the same time, Wiley’s approach accepts the objection, voiced by liberal critics of the “new public health,” that the widespread nature of health problems experienced by individuals does not alone make them “public” health problems justifying state regulatory intervention. Her concept of “epidemiological harms” distinguishes “public bad” harms from a simple aggregation of individual harms.
Wiley’s approach will not overcome all libertarian resistance to new public health interventions. While she characterizes her approach as middle of the road, Wiley seems firmly wedded to the legitimacy of social epidemiology, which has its own critics. And, as a political matter, some interventions properly characterized as “public health” (under Wiley’s approach) may not be palatable to the public itself and thus may not be politically viable. But political viability presents a democratic question about how the government should exercise its police power, not about whether the power is legitimately the government’s to wield.
Scholarship regarding public health law has blossomed in recent years, and “Rethinking the New Public Health” is a valuable contribution to the ongoing discussion.