Do ethics demand evaluations of public health laws? image

Journal of Health Care Law Policy, 2016, Vol. 19, Issue 1
Kerri McGowan Lowrey, Stephanie R. Morain, and Christine M. Baugh (Student Fellow Alumna)

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Ideally, public health laws would be developed on a robust base of scientific, epidemiologic, and medical data and enacted independent of the various political forces at play. In reality, of course, this “gold standard” is often unattainable. The success of public health legislation in the United States depends on a combination of empirical data, anecdotal evidence, political will, political palatability, media involvement, and the myriad number of issues simultaneously vying for policymakers’ attention. For example, in the months and years following September 11, 2001, legislative attention focused suddenly and squarely on homeland security; chronic disease prevention and other kinds of public health measures understandably took a back seat. A cursory scan of state public health and environmental laws reveals that lawmaking often requires compromise with political factors at play. This may explain why jambalaya, a traditional Louisiana rice dish, when prepared in the “traditional manner” for public consumption, is exempt from any conflicting state sanitation laws or why a frog that dies during a frog-jumping contest in California cannot be eaten. Furthermore, academic evidence often is poorly tailored to serve the process by which laws are made, and anecdotal evidence often seems to have more power to “move” legislators than does aggregate empirical data. This complex combination of factors driving the development and passage of public health laws means that they are often the result of compromise; public health is one among many important (and sometimes competing) national values, including, for example, civil liberties, autonomy, and privacy. When laws infringe upon one of these other values because lawmakers deem public health to take precedence—or when public health laws serve to create in the public a perception of safety or protection—do principles of ethics demand that the law be effective? Others have described the importance of acknowledging ethics in public health policy and the position of policy analysis as “lying squarely (if uncomfortably) between science and ethics.” We seek to take this conversation further, using youth sports-related traumatic brain injury (“TBI”) laws as a case study to argue that policy evaluation—the attempt to ensure that public health laws are effective, or at least not harmful—and action based upon resulting knowledge are ethical imperatives, particularly in the face of evidentiary uncertainty.

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