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As a distinct field of study and practice, health law is still relatively new, and its boundaries continue to be contested. As recently as 2006, Einer Elhague questioned whether health law could “become a coherent field of law.”1 The fact that Elhague’s musings appeared in a symposium dedicated to the idea that the “once vibrant … and fresh” subject of health law was haunted by a “specter of exhaustion” indicates the contested nature of the “field-ness” of this field.2 Its boundaries are even more hotly disputed. Is health law limited to the relationships among health care professionals, patients, the institutions where they meet, and the payers who finance their encounters? Or does it also encompass legal issues related to public health and the social determinants of health, which social epidemiology demonstrates3 play an even greater role than health care in shaping outcomes?4 As feminist health law scholars, we “view health law as an inherently … expansive field.”
5 For the purposes of this volume, however, and in light of the potential for other areas – such as poverty law, housing law, and employment law – to generate Feminist Judgments books of their own, we have narrowed our focus to more traditional health law topics. Nonetheless, we view the insights of social epidemiology regarding the influence of social, economic, and environmental factors on health as “an invitation to engage with the rich literature of critical legal theories that view law as an expression of social power.”6
Health justice is both a community-led movement for power building and transformational change and a community-oriented framework for health law scholarship. Health justice is distinguished by a distinctively social ethic of care that reframes the relationship between health care, public health, and the social determinants of health, and names subordination as the root cause of health inequities.
The ACA shifted U.S. health policy from centering on principles of actuarial fairness toward social solidarity. Yet four legal fixtures of the health care system have prevented the achievement of social solidarity: federalism, fiscal pluralism, privatization, and individualism. Future reforms must confront these fixtures to realize social solidarity in health care, American-style.
This essay argues that feminist legal theory offers an important, and underutilized, perspective to examine health law and policy. We use several theoretical frameworks developed by feminist legal theorists including relational autonomy, intersectionality, vulnerability theory, and the feminist critique of the public-private divide to demonstrate the utility of these theories to health law analysis. These frameworks provide insights relevant not only to issues that obviously relate to gender, but also to matters of choice, quality, and access that are less obviously gender-related. We map three key areas of existing scholarship and future inquiry at the intersection of health law and feminist legal theory: (I) patient choice and relational autonomy, (II) patriarchy, power and patient safety, and (III) access to health care and healthy living conditions at the public-private divide. Uniting these areas of inquiry is a nagging question central to the relationship between critical legal scholarship (including feminist scholarship) and pragmatic action to combat injustice: Can we use legal rights to achieve our aims even as we recognize them as tainted tools that have propped up oppressive social structures? A feminist agenda for health law and policy must grapple with this dilemma.
Climatic conditions are affecting interactions between the agents, vectors, and hosts of disease within our changing environment, leading to changing patterns of vector-borne, zoonotic, food-borne, and waterborne illness. The public health law toolkit for infectious disease control includes laws that facilitate surveillance, access to medical countermeasures, vector control, health education and communication, social distancing, and public health emergency preparedness and response. Additionally, two public health principles should guide adaptation to the infectious disease impacts of climate change: One Health and Health in All Policies.
This piece explores legal, ethical, and policy arguments associated with using interventions that leverage feelings of shame and social exclusion to promote uptake of childhood immunizations by parents.
Restructured health care reimbursement systems and new requirements for nonprofit hospitals are transforming the U.S. health system, creating opportunities for enhanced integration of public health and health care goals. This article explores the role of public health practitioners and lawyers in this moment of transformation. We argue that the population perspective and structural strategies that characterize public health can add value to the health care system but could get lost in translation as changes to tax requirements and payment systems are rapidly implemented. We urge public health leaders to take a more active role in hospital assessments of community health needs and evaluation of the patient outcomes for which providers are accountable.
Environmental, public health, alternative food, and food justice advocates are working together to achieve incremental agricultural subsidy and nutrition assistance reforms that increase access to fresh fruits and vegetables. When it comes to targeting food and beverage products for increased regulation and decreased consumption, however, the priorities of various food reform movements diverge. This article argues that foundational legal issues, including preemption of state and local authority to protect the public's health and welfare, increasing First Amendment protection for commercial speech, and eroding judicial deference to legislative policy judgments, present a more promising avenue for collaboration across movements than discrete food reform priorities around issues like sugary drinks, genetic modification, or organics. Using the Vermont Genetically Modified Organism (GMO) Labeling Act litigation, the Kauai GMO Cultivation Ordinance litigation, the New York City Sugary Drinks Portion Rule litigation, and the Cleveland Trans Fat Ban litigation as case studies, I discuss the foundational legal challenges faced by diverse food reformers, even when their discrete reform priorities diverge. I also explore the broader implications of cooperation among groups that respond differently to the “irrationalities” (from the public health perspective) or “values” (from the environmental and alternative food perspective) that permeate public risk perception for democratic governance in the face of scientific uncertainty.
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.
In June 2012, New York City Mayor Michael Bloomberg announced his plans for a ban on the sale of sugary beverages in containers larger than 16 ounces. Shortly thereafter, the Center for Consumer Freedom took out a full-page ad in the New York Times featuring Bloomberg photo-shopped into a matronly dress with the tag line “New Yorkers need a Mayor, not a Nanny.” On television, the CATO Institute's Michael Cannon declared, “This is the most ridiculous sort of nanny state-ism; [i]t’s none of the mayor's business how much soda people are drinking.” And in newspapers around the country, editorial pages featured headlines such as “Gulp! Yet Another Intrusion of the Nanny State.” Just like that, the public debate about this measure became focused on government overreach, while the public health problem of obesity (and of overconsumption of soda in particular) faded into the background.
In coming decades, enhanced global health governance will be crucial to achieving international health and development objectives in the face of a number of challenges; this article focuses on one of them. Climate change, which is now widely recognized as the defining challenge of the 21st century, will make the work of ensuring the conditions in which people can be healthy more difficult in a myriad of ways. Scientists from both the health and climate communities have been highlighting the significant interaction between climate and health for decades and have made significant strides in integrating health and environmental research. Those of us in the law and policy community have been a bit slow to catch up, and have only just begun to call for better integration of our responses to health and environmental concerns. Environmental health specialists at the World Health Organization have recently pointed to a mandate for better integration of health and environmental concerns within the United Nations system. The Millennium Development Goals interweave health, environmental, and development concerns.
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