Hostname: page-component-76fb5796d-wq484 Total loading time: 0 Render date: 2024-04-26T18:45:09.937Z Has data issue: false hasContentIssue false
  • English
  • Français

Adventures in Nannydom: Reclaiming Collective Action for the Public's Health

Published online by Cambridge University Press:  01 January 2021

Lindsay F. Wiley ,
Wendy E. Parmet  and
Peter D. Jacobson
Get access Rights & Permissions [Opens in a new window]

Extract

Each of us has written about the importance of reframing the debate over public health paternalism. Our individual explorations of the many and varied paths forward from libertarian “nanny state” objections to the “new public health” have been intimately informed by collaboration. This article represents a summary of our current thinking — reflecting the ground gained through many fruitful exchanges and charting future collaborative efforts.

Our starting point is that law is a vitally important determinant of population health, and the interplay among law, social norms, cultural beliefs, health behaviors, and healthy living conditions is complex. Anti-paternalists’ efforts to limit the scope of public health law to controlling only the proximal determinants of infectious diseases are utterly unjustifiable in the face of so much preventable death, disability, and disparity. Equally important, the anti-paternalism push is deeply counter-majoritarian and undemocratic, threatening to disable communities from undertaking measures to improve their own well-being.

Type
JLME Supplement
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue S1 , Spring 2015 , pp. 73 - 75
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Parmet, W. E., “Beyond Paternalism: Rethinking the Limits of Public Health Law,” Connecticut Law Review 46, no. 5 (2014): 1771–1794; Wiley, L. F., “Sugary Drinks, Happy Meals, Social Norms, and the Law: The Normative Impact of Product Configuration Bans,” Connecticut Law Review 46, no. 5 (2014): 1877–1888; Parmet, W. E. Jacobson, P. D., “The Courts and Public Health: Caught in a Pincer Movement,” American Journal of Public Health 104, no. 3 (2014): 392–397; Jacobson, P. D., “Changing the Culture of Health: One Public Health Misstep at a Time,” Society 51, no. 3 (2014): 221–228; Wiley, L. F. Berman, M. L. Blanke, D., “Who's Your Nanny? Choice, Paternalism and Public Health in the Age of Personal Responsibility,” Journal of Law, Medicine & Ethics 41, no. 1, Supp. (2013): 88–91; Wiley, L. F., “Rethinking the New Public Health,” Washington & Lee Law Review 69, no. 1 (2012): 212–272.Google Scholar
Our collaboration has been part of a larger effort of a group of public health law scholars and practitioners to work together to address the challenges facing public health law. Beletsky, L. Parmet, W. E. Burris, S., “Advancing Public Health Through the Law: The Role of Legal Academics,” Northeastern Public Law and Legal Theory Faculty Research Paper Working Series, No. 102–2012, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2148432> (last visited February 17, 2015).+(last+visited+February+17,+2015).>Google Scholar
See, e.g., Barnett, R., “The Proper Scope of the Police Power,” Notre Dame Law Review 71, no. 2 (2004): 429–495; Epstein, R. A., “Let the Shoemaker Stick to His Last: In Defense of the ‘Old’ Public Health,” Perspectives in Biology and Medicine 64, no. 3, Supp. (2003): S138–S159; Hall, M. A., “The Scope and Limits of Public Health Law,” Perspectives in Biology and Medicine 64, no. 3, Supp. (2003): S199–S209; Rothstein, M. A., “The Limits of Public Health: A Response,” Public Health Ethics 2, no. 2 (2009): 84–88; Pope, T. M., “The Slow Transition of U.S. Law Toward a Greater Emphasis on Prevention,” in Faust, H. S. Menzel, P. T., eds., Prevention vs. Treatment, What's the Right Balance (Oxford: Oxford University Press, 2011).Google Scholar
Barnett, R. E., Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J.: Princeton University Press, rev. ed. 2014).Google Scholar
See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (upholding seatbelt law); Simon v. Sargent, 346 F.Supp.277 (D. Mass. 1972), aff'd without opinion, 409 U.S. 1020 (1972) (motorcycle helmet law does not violate due process, notwithstanding claim that “police power does not extend to overcoming right of an individual to incur risks that involve only himself “).Google Scholar
132 S.Ct. 2566 (2012).Google Scholar
See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996) (striking down a regulation prohibiting advertisement of alcohol prices on First Amendment grounds, in part because “[i]t is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State's goal of promoting temperance” including taxation and direct regulation establishing minimum prices or maximum per capita purchases); Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 770 (1976) (striking down a “highly paternalistic” regulation prohibiting pharmacists from advertising the prices of prescription drugs, but noting that the state “is free to require whatever professional standards it wishes of its pharmacists” so long as they do not implicate freedom of speech); Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality opinion applying strict scrutiny to reject sex discrimination “rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”).Google Scholar
See, e.g., Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (holding that terminally ill adults had no fundamental right to have access to investigational drugs, after surveying the long history of safety and efficacy regulation of drugs for personal use); Lange-Kessler v. Dept. of Ed., 109 F.3d 137 (2d Cir. 1997) (holding that the right to privacy does not encompass a woman's right to choose a direct-entry midwife to assist during childbirth).Google Scholar
N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep't of Health & Mental Hygiene, 23 N.Y.3d 681 (N.Y. June 26, 2014).Google Scholar
See Agency for Int'l Development v. Alliance for Open Society Int'l, 133 S.Ct. 2321 (2013); Wollshlaeger v. Florida 760 F.3d 1159 (11th Cir. 2014).Google Scholar
See, e.g., Mariner, W. K. Annas, G. J. Parmet, W. E., “Pandemic Preparedness: A Return to the Rule of Law,” Drexel Law Review 1, no. 2 (2009): 341–382 (arguing that respect for constitutional rights supports efforts to protect the public from pandemics).Google Scholar