The International Response to Climate Change: An Agenda for Global Health

As the international community negotiates a successor to the Kyoto Protocol of the United Nations Framework Convention on Climate Change (UNFCCC), there is new reason to hope that meaningful action might be taken to prevent devastating climate change. Even the more ambitious mitigation targets currently under negotiation, however, will not be sufficient to avoid a profound effect on the public\u27s health in coming decades, with the world\u27s poorest, most vulnerable populations bearing the disproportionate burden. The influence of historic and current emissions will be so substantial that it is imperative to reduce global emissions while at the same time preparing for the effects. Recently, the UNFCCC has begun to turn its attention to adaptation—changes to human systems to ameliorate the consequences of climate change. This Commentary proposes a new agenda for mitigation as well as adaptation approaches that emphasize the considerable health effects of climate change, which include increasingly intense and more frequent natural disasters, potential increases in vector-, food-, and water-borne infectious disease, and exacerbation of cardiovascular and respiratory disease. The effects of climate change will be experienced in every region but will disproportionately burden the global poor, exacerbating global health disparities and challenging the international community to address the inevitable questions of global social justice. Three key recommendations are proposed: (1) focus mitigation targets on broader health impacts, rather than framing climate change as a coastal issue; (2) incorporate land-use and agricultural approaches to mitigation alongside measures in the energy and transportation sectors to take advantage of co-benefits for health; and (3) fully fund adaptation projects as a global priority with an emphasis on strengthening health systems

Governmental Public Health Powers During the COVID-19 Pandemic: Stay-at-home Orders, Business Closures, and Travel Restrictions

The president and all 50 governors have declared health emergencies to combat the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes coronavirus disease 2019 (COVID-19). While researchers race for vaccines, officials are implementing physical distancing, including orders to stay at home, restrict travel, and close non-essential businesses. To limit cross-border spread, a few states have issued mandatory quarantines for interstate travelers. Models suggest physical distancing would have to persist for 3 months to mitigate peak impacts on health systems and could continue on an intermittent basis for 12-18 months. What legal powers do governments have? What is the role of the courts? How can we balance public health with personal and economic rights

Health Law as Social Justice

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and policy. This Article labels, describes, and furthers a nascent “health justice” movement by examining what it means to view health law as an instrument of social justice. Drawing on the experiences of the reproductive justice, environmental justice, and food justice movements, and on the writings of political philosophers and ethicists on health justice, I propose that health justice offers an alternative to the market competition and patient rights paradigms that currently dominate health law scholarship, advocacy, and reform. I then examine the role of law in reducing health disparities through the health justice lens. I argue that the nascent health justice framework suggests three commitments for the use of law to reduce health disparities. First, to a broader inquiry that views access to health care as one among many social determinants of health deserving of public attention and resources. Second, to probing inquiry into the effects of class, racial, and other forms of social and cultural bias on the design and implementation of measures to reduce health disparities. And third, to collective action grounded in community engagement and participatory parity. In exploring these commitments, I highlight tensions within the social justice framework and between the social justice framework and the nascent health justice movement. These tensions illustrate, rather than undermine, the power of viewing health law as social justice. They raise important questions that should prompt more fruitful and rigorous thinking within health law activism and scholarship and with regard to the relationships between law and social justice more broadly

Rethinking the New Public Health

This Article contributes to an emerging theoretical debate over the legitimate scope of public health law by linking it to a particular doctrinal debate in public nuisance law. State and local governments have been largely stymied in their efforts to use public nuisance litigation against harmful industries to vindicate collectively-held, common law rights to non-interference with public health and safety. The ways in which this litigation has failed are instructive for a broader movement in public health that is only just beginning to take shape. In response to evolving scientific understanding about the determinants of health, public health advocates are rapidly implementing new law and policy tools to alter our environments and behaviors in ways that improve health at the population level. Critics of this “new public health” movement seek to safeguard individual liberty by disconnecting the law and politics of public health from its science. They argue that modern health threats such as heart disease and diabetes are individual concerns not sufficiently public in nature to trigger doctrines that privilege state intervention over individual rights. Public health scholars engaged in this theoretical debate have overlooked a related doctrinal debate within public nuisance law in which courts have struggled to define the scope of “public rights,” including the right to non-interference with public health. In both debates, critics have rightly insisted that the public must be more than the mere aggregation of private interests. But the narrower conceptions of the public that critics have put forth fail to account for the full scope of the state’s authority and responsibility for public health. This Article stakes out a middle position by adopting the classically liberal view of public health law critics—that state interference with individual liberty requires robust justification—while also defining the public broadly so as to justify considerable state intervention under the banner of public health. Drawing on analysis of public nuisance litigation as a public health tool, I propose that epidemiological harms—which I define as those for which causation can be established at the population level, but not necessarily at the individual level—should be understood as public bads. This conception of the public provides a more robust justification for the new public health law movement that more firmly grounds it in the science of social epidemiology

The U.S. Department of Agriculture as a Public Health Agency? A Health in All Policies Case Study

The war on obesity is now well into its second decade. What began as an effort to encourage medical doctors to screen and treat patients whose weight put them at risk for health problems has transformed into a much broader public health campaign to address the root causes of obesity. A growing number of state, territorial and local health departments are currently exploring new ways to promote healthy eating and physical activity. At the federal level, the U.S. Centers for Disease Control and Prevention (CDC) has made nutrition, physical activity and obesity a top priority

Hortatory Mandates

This Article is the first to describe hortatory mandates and articulate principles for judicial review. Hortatory mandates are laws whose form and function collide. Either they speak in mandatory terms but lack penalties or enforcement mechanisms, or they speak in hortatory, precatory terms that belie the legal obligations they create. Our analysis of important examples-the Affordable Care Act, the Clean Air Act, federal dietary guidelines, and COVID-19 mitigation orders-indicates that policymakers regularly deploy hortatory mandates for instrumental reasons rather than purely symbolic or precatory reasons. In matters of public health, environmental protection, and beyond, so-called soft law is now a preferred tool of government. Hortatory mandates are not a quirk of legislative contortions to pass health reform or the exigencies of our current pandemic; they are probably here to stay. This Article offers a framework for evaluating which hortatory mandates should be reviewable by courts and which ones are best left to the other branches. We argue that the essential inquiry for courts is whether a hortatory mandate establishes a binding, enforceable norm. This can be demonstrated by pointing to the government\u27s use of coercive means to enforce the norm or credible signals that the norm will in fact be enforced. After all, government actions that are binding and enforceable are not really hortatory; they are mandatory, regardless of language to the contrary. Likewise, government actions that create no binding legal obligations are merely hortatory and should not invoke the power of the courts-again, regardless of language to the contrary. In such cases, judicial determinations clarifying the hortatory nature of an order, and thus excluding it from review, may facilitate political checks and balances on any hortatory mandates that overreach. If the government is trying to regulate behavior on the sly, litigation can force the question early, fostering more robust political debate and-potentially-nonjudicial intervention to redirect the government\u27s approach. We also caution that abuse of hortatory mandates can degrade the rule of law and undermine public trust and compliance

The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law

Our nation’s response to the coronavirus pandemic has revealed fundamental flaws in our legal regimes governing both public health and employment. Public health orders have called on individuals to make sacrifices to protect society as a whole. Simple fairness dictates that the burdens should be shared as widely as the benefits. And the case for burden-sharing does not rest on fairness alone. Public health measures are more likely to succeed when those who are subject to them understand them as fair1 and when their cooperation is supported. 2 Predictably, our pandemic response has placed disproportionate burdens on those who are already disadvantaged due to economic, racial, gender, disability, immigration, and criminal injustice.3 Elected officials have asked each of us to take personal responsibility for weathering this crisis rather than providing community supports and legal protections that would cushion the blow, spread the costs more widely, and enable everyone to abide by and benefit from public health recommendations

Medicaid for All? State-Level Single-Payer Health Care

If single-payer health care is ever to become a reality in the United States, it will very likely be pioneered by a state government, much like Canada’s single-payer system was first adopted in the provinces. Canada’s system operates more like U.S. Medicaid — financed nationally but administered largely by the provinces — than U.S. Medicare. This article describes three basic strategies progressive U.S. state governments are exploring for achieving universal access to high-quality health care and better health outcomes for their residents. First, maximizing eligibility for the existing Medicaid program using matching federal funds. Second, taking up the mantle of Obamacare by adopting state-level replacements for provisions that federal lawmakers repeal, subsidizing and regulating the price of private insurance, and making more affordable coverage available for purchase on state-run health insurance exchanges. Third, I focus particularly on the efforts of states to succeed where federal reformers have failed by adopting a state-level public option or single-payer health care system. Although state-level public-option and single-payer health plans face significant obstacles, they are more feasible than federal reforms. Moreover, I argue, state-level single-payer health care may be preferable from a health justice perspective because it holds greater promise for integrating health care, public health, and social safety net program goals to achieve better health for all. State lawmakers must proceed cautiously, however, particularly with respect to ensuring that people entitled to traditional Medicaid benefits, which offer special coverage for special populations, continue to receive them. Additionally, state lawmakers should carefully assess the role that privatized public coverage currently plays in their health systems and what role, if any, it should play in public-option or single-payer reforms