Valuable public health lessons from COVID-19

By Robert I. Field

Never let a pandemic go to waste. You might learn something.

A month, ago how much did you know about self-quarantine, social distancing, contact tracing, flattening the curve, or disease testing kits? Now, most of us know that they may save our life – and the lives of millions of others.

A month ago, could you name the director of the National Institute of Allergy and Infectious Diseases? Now, this government official, Dr. Anthony Fauci, holds the entire country’s welfare in his hands.

A month ago, did you think that hand sanitizer, rubbing alcohol, surgical masks – and toilet paper – would be among the most sought-after consumer products?

We have quickly learned a lot about an essential pillar of our country’s well-being: public health. It is more than the city official who closes a local restaurant or the announcer on a public service video who scolds us about wearing a seat belt. Like the security suite running in the background on your computer, it is the often-hidden support that responds to threats before the entire system crashes.

But if we don’t retain our newly gained knowledge, we will be no better prepared when the next threat emerges. Amnesia can kill.

Here are five key lessons from COVID-19 for all of us to bear in mind in the years ahead.

1.      You never know when you, and everyone around you, will need public health.

Public health threats don’t usually announce themselves in advance, and they can worsen very quickly. The first case of COVID-19 occurred in Wuhan, China last November. In December, hospitals there were treating dozens of cases. In January, the first cases were confirmed in United States and several other countries. Public health infrastructure needs to be there to respond quickly. You don’t wait to buy an umbrella until after it begins to rain.

2.      You don’t hear more about public health because it has been so successful.

Remember when epidemics of polio, smallpox, yellow fever and cholera threatened whole cities? You almost certainly don’t because measures like vaccination, clean drinking water, sanitation and pest control conquered them in this country decades ago, probably before you were born.

3.      Public health is most effective when it is global.

Infectious diseases don’t stop at national borders and never have since the dawn of civilization. It is only through international cooperation that we can hope to control their spread, something that has been haphazard this time. Almost no nation on Earth has been spared from COVID-19. We rely on global monitoring to spot emerging flu strains each year so scientists can develop vaccines before they arrive. The more we cooperate globally, the better protected we are.

4.      Public health transparency is crucial, and a free press is essential to providing it.

Chinese officials kept the public in the dark about COVID-19 until late January, while people moved freely in and out of Wuhan. China lacks a free press to spread the word. Had the Chinese public learned about the outbreak sooner, we might not be facing the current crisis. And transparency builds public trust, without which the current pandemic responses would not be possible.

5.      Our whole economy depends on public health.

Take a look at the stock market. Need I say more?

Those who cannot remember the past are condemned to repeat it, as the saying goes. The lessons of a crisis are of little use if they are not kept in mind after it has passed. COVID-19 is showing us how important it is to keep the security suite running. Even when we don’t see it, we continually rely on public health security so that the threats we don’t yet see are more likely to stay that way.

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Robert I. Field is professor of law and public health at Drexel University. He is also founder, editor and lead writer of the Health Cents blog on Inquirer.com.

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This blog post first appeared as an op-ed in the Philadelphia Inquirer.

Experts discuss mitochondrial replacement therapy and the future of U.S. policy

By Nirban Bhatia

Last month, The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School organized a panel of academics from around the globe to present their research and perspectives on mitochondrial replacement therapy (MRT), a highly controversial treatment that is currently prohibited in the United States.

The MRT process takes healthy mitochondria from a donor’s egg and then replaces its nucleus with the mother’s nucleus. This procedure is primarily done so women with mutant mitochondrial DNA can have biological children without any mitochondrial disease. Mitochondrial disease is known to cause serious issues such as oxygen deprivation, which can leave people bed-ridden or in a wheelchair with severe impairments. While this treatment serves as a great solution for a number of women, experts are not entirely sold on its benefits.  

Each individual panelist was allotted a brief amount of time to highlight the major findings from their work. While the content during the first half of the presentations revolved around the in-depth biology of MRT and the various techniques used, the conversation steadily transitioned into a more interdisciplinary realm, ultimately concluding with a social and bioethical lens on the issue.

Currently, MRT is banned in the United States due to unresolved debates about the value of the procedure versus the ethical issues it presents. In terms of public opinion, a study conducted by medical faculty at Columbia University found that 90% of women interested in having children would undergo MRT to have a child. Although there is public support, the relatively niche use of MRT seems to explain why it has not been a significant priority for our nation.

Multiple panelists made references to the United Kingdom, which unlike the United States, allows MRT if a given clinic has a special license and a patient is approved by a review board.

While a UK-based model would be difficult to emulate due to the fragmented health care system in the United States, there are also significant philosophical roadblocks in the U.S. As discussed by Dr. César Palacios-González, a Fellow at The Oxford Uehiro Centre for Practical Ethics, many are concerned that MRTs will pave the way for the increased use of other gene-editing technologies such as CRISPR. Additionally, some critics believe the approval of the unborn child would be necessary to ethically use MRT.

In contrast, supporters believe that barring MRT in the United States infringes upon reproductive freedom, an issue that is consistently brought up in health policy discussions. Many claim their moral and fundamental right to undergo whatever procedures they desire, especially if the procedure can improve health outcomes for many children annually.

Although this panel discussion did not result in any decisions or outcomes, it laid out a highly informative and thorough landscape of the MRT dispute currently troubling policymakers in the United States. You can watch the full discussion here.

Staying in Their Lane: Health Professionals Must Address Gun Violence [from the Hastings Bioethics Forum]

by Patricia Illingworth and Matthew Wynia

In the wake of the recent Twitter fight between the National Rifle Association and U.S. physician groups over whether doctors should speak out about firearm policy issues, we argue that professionalism actually requires that doctors take a leadership role in gun policy debates, even if (in fact, especially if) doing so is politically fraught and financially harmful to them.

The recent publication of a position paper, Reducing Firearm Injuries and Deaths in the United States, by the American College of Physicians prompted the NRA to assert that physician groups should “stay in their lane” and not talk about gun policy issues. So far, the push-back against this admonition has been mostly to emphasize the terrible medical consequences of gun violence, which is appropriate. But medical groups have been mostly silent on the basics of medical ethics and what is required of them as professionals, and that’s an oversight.

Why professions matter today

Translated from Latin, the word “profession” literally means “to speak forth.” So a profession is a group of people who have come together to publicly declare – sometimes even out loud in the form of a creed or an oath – the standards and values that guide their work. This is why new doctors often recite the Hippocratic Oath, and it’s why every profession has a code of ethics. Oaths and codes are ways of speaking forth – professing – what members of the public can expect in terms of skills and attitudes from members of the group. They make up one side of a social contract, in which the members of the profession seek the trust of the public, and all the perks that come with that, in exchange for keeping the promises made in their codes and oaths.

For physicians, their main professional promise is to look out for their patients’ best interests, including putting the health of their patients before their own self-interest. That’s critical for patients, because without the assurance that physicians will always put them first, patients could not, and probably should not, rely on physicians for care when they are at their most vulnerable. For the sick, injured, or dying to place their lives in the hands of a physician, sometimes a stranger, they need to be completely confident that physicians are devoted to patients’ health and well-being and not just looking to enrich themselves.

But there’s more. Upholding professional values isn’t just necessary for strong patient-doctor relationships. It also can help sustain a healthy democracy. Professional values can actually serve as a morally stabilizing force in communities. Truth, trust, the willingness to put the interests of others ahead of one’s own, the impartial treatment of all people without regard to race, culture or income – these are the moral values on which the profession of medicine is grounded, and they happen to be the same moral values necessary to sustain a well-functioning democracy.

Today these values are at risk. Mistrust, xenophobia, hate, bias, partiality, and selfishness sometimes feel like they are becoming new moral norms. Since 2017, trust in government “to do what is right” dropped by 14 percentage points among the general U.S. population. Businesses, NGOs, and the media are experiencing similarly dismal levels of trust, and the Edelmen Trust Barometer is warning of an impending “trust crash.”

Physicians continue to score quite high in public trust, with 65% of U.S. adults saying physicians have “high /very high honesty and ethical standards.” Physicians rank fourth among the most trusted professions, following only nurses, military officers, and grade school teachers. Given the crisis of mistrust all around us today, it is more essential than ever that medical professionals uphold their promises and step up to safeguard the moral norms that our society needs to thrive.

Professionalism demands that doctors speak out

If a profession is a group seeking to earn the public’s trust by openly speaking forth on a set of shared promises, then professionalism is best understood as the belief system (the –ism) underlying these promises. In medicine, professionalism is the notion that society can and should trust medical groups to set and enforce standards of practice and ethical norms, based on their promise that they will always use these prerogatives to help improve the health of the community. In other words, professionalism means that with the privilege of self-regulation comes the responsibility to use medical skills and knowledge to promote public health, even when doing so is politically uncomfortable or financially harmful to doctors.

Obviously, speaking out against the NRA can be politically uncomfortable. But what’s rarely said is this: just as gun manufacturers make money from selling guns, physicians make money from treating the victims of gun violence. Bluntly speaking, that means reducing gun violence would actually be financially harmful for doctors, so the self-serving path would be for medical groups to stay silent and for doctors to just keep getting paid to patch up the people injured and killed in gun violence.

Of course, the idea that physicians would stay silent to prop up high levels of gun violence is ridiculous. After all, doctors would never urge people to keep smoking, drinking, or eating fast food, even though those are good for business too.

But why are these ideas ridiculous? They are ridiculous because we all, deep down, actually believe in physician professionalism, which demands that doctors tackle these issues. If physicians were to remain silent in the face of an epidemic – whether of gun violence or from any other source – it would rightly be interpreted as opportunistic, uncaring, and professionally incompetent. Worse, it would be a blatant breach of doctors’ collective promise to always seek to improve the health of the public, even when it’s not easy and even when it might cost doctors some revenue.

And guns are like smoking, drinking to excess, and eating junk food in more ways than one. For each of these products there are self-serving constituencies, uninterested in the health of the public, who wish doctors would just stop talking about the role of their products in hurting people.

But doctors won’t stop, because speaking out when it is difficult and costly is exactly what makes the profession of medicine worthy of the public’s trust, and thank goodness for that. The willingness of physician groups to speak out on gun policy is critical for public trust in medicine, and today it might also be reinforcing the values that are at the heart of our democracy. It proves that professional norms of truth, trust, impartiality, and placing the interests of others before self are more resilient in the medical profession than some might have realized – and maybe seeing physician groups uphold these values  will help preserve these values among the general population, too.

So, while it might be inconceivable to the leadership of the NRA that  the American College of Physicians and the American Medical Association—which perhaps it regards as mere trade groups — could act against the financial best interests of their constituents, for these medical groups it’s actually business as usual when it comes to public health issues. After all, speaking out on issues like gun violence is what proves medicine really is a profession and not just a trade.

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Patricia Illingworth, JD, PhD, is a professor at Northeastern University and a senior fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School.

 Matthew Wynia, MD, MPH, is a professor of medicine and director of the Center for Bioethics and Humanities at the University of Colorado, Anschultz Medical Campus. Twitter: @matthewwynia.

This blog post was originally published in the Hastings Bioethics Forum on December 17, 2018.

Public Comment: HHS Proposed Revisions to Title X Funding Regulations

Yesterday, along with the George Consortium and in collaboration with the Center for Health Policy and Law at Northeastern University School of Law, we submitted public comments to the Dept. of Health and Human Services (HHS) regarding proposed revisions to Title X Regulations. We offer a reprint of the comments we submitted. 

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Office of the Assistant Secretary for Health
Office of Population Affairs
Attention: Family Planning
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 716G
200 Independence Avenue SW
Washington, DC 20201

Re: Docket Number: HHS-OS-2018-0008, RIN: 0937-ZA00

Public Comment on Proposal to Revise Title X Regulations, Compliance with Statutory Program Integrity Requirements

Dear Assistant Secretary ADM Brett Giroir, MD:

The Center for Health Policy and Law at Northeastern University School of Law[1] and the Public Health Law Watch (PHLW)[2] appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 59, “Compliance With Statutory Program Integrity Requirements.” The Center for Health Policy and Law is a university center of excellence focused on providing a rich context for students and researchers interested in myriad health-related topics, including public health law, health and human rights, health governance, bioethics, and drug policy. PHLW is a project of the George Consortium, a nationwide network of public health law scholars, academics, experts, and practitioners. It should be noted that these comments have been prepared by the Center for Health Policy and Law and PHLW, but do not represent the view of Northeastern University School of Law, Northeastern University, or individuals affiliated with either the Center or PHLW.

We offer comments on the proposed regulations’ failure to provide for exemptions or protections for providers whose conscience dictates that they counsel and provide medically-appropriate information about abortion and abortion-related services.

These proposed regulations seek, among other things, to eliminate the current requirement that Title X grantees “offer pregnant women the opportunity to be provided information and counseling regarding… pregnancy termination.”[3] On page 25506,[4] the “supplementary information” section invokes “conscience protections” as one justification for eliminating that provision. Specifically, it reasons that this provision conflicts with statutory “conscience protections” shielding health care personnel from engaging in practices conflicting with their moral and religious values. The commentary posits that eliminating the requirement to give women the opportunity to get information about abortion would solve any potential clashes between that provision and conscience provisions.

This reasoning, however, assumes that moral and religious conviction protections only apply when invoked against abortion. But that is simply not true. Dr. Willie Parker, for example, describes his mission to provide women with abortions as a Christian imperative.[5] Refusing to do so, he reasons, would be akin to the biblical Samaritan who refused to help a fallen traveler. An interfaith coalition blesses clinics that provide abortion for upholding the values of autonomy.[6] The late Dr. George Tiller, who was murdered in his church by an anti-abortion extremist, described his work of providing abortions as “a ministry.”[7] Others view providing abortions as a moral duty[8] to provide needed care to women who need help.[9] Some providers and health care workers believe their conscience requires adherence to professional and medical ethics, which require health professionals to provide all relevant, medically-appropriate information to patients, including when patients ask for a full range of family planning and/or abortion-related options and referrals, and when medically-appropriate even in the absence of explicit requests for such information or referrals by the patient.[10]

These proposed regulations change not only disregard the interests and rights of providers and patients whose consciences support ensuring transparency around and access to information related to abortion and abortion-related services, referrals, and counseling, they also ignore the fact that federal law protects the conscience of such providers. On page 25512,[11] the supplementary information section invokes the Church Amendments (codified at 42 U.S.C. 300a-7)[12] by describing its discrimination protections for health care professionals who refuse to perform abortions.  The notice for proposed rulemaking, however, fails to include, even in its footnoted quote of the law,[13] the provisions in the Church Amendments that explicitly also protect the professionals who do perform abortions, as well as those who counsel and/or refer patients to abortion services.[14] The law equally protects those with “reluctance or willingness to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.”[15] The law recognizes that “religious beliefs or moral convictions” are not homogenous and do not operate solely in one direction. To be consistent with this provision of the law, as well as with the Department’s proposed conscience regulations[16], the Proposed Title X regulations should allow for health care providers whose conscience compels them to provide patients with full and medically-relevant information about their reproductive health options, including by providing them with clear and useful referrals to abortion services and providers, even in instances when patients do not explicitly request such referrals.

Sincerely,

Center for Health Policy and Law
Northeastern University School of Law
lawhealth@northeastern.edu  

Public Health Law Watch
phlawwatch@northeastern.edu  

[1] Center for Health Policy and Law, https://www.northeastern.edu/law/health.

[2] Public Health Law Watch, https://www.publichealthlawwatch.org/.

[3] 42 CFR § 59.5(a)(5)(C) (2017).

[4] Compliance with Statutory Program Integrity Requirements, 83 Fed. Reg. 25502 (proposed June 1, 2018) (to be codified at 42 C.F.R. pt. 59).

[5] Stephanie Russell-Kraft, Reclaiming the Moral Imperative for Reproductive Choice. A Q&A with Dr. Willie Parker., The Progressive (Apr. 11, 2017), http://progressive.org/dispatches/reclaiming-the-moral-imperative-for-reproductive-choice.

[6] Caroline Kent, The Religious Coalition Blessing Abortion Clinics Across America, Broadly (May 10, 2018, 10:15 AM), https://broadly.vice.com/en_us/article/a3azz4/religious-coalition-reproductive-choice-abortion-clinic-blessing.

[7] Carole Joffe, Working with Dr. Tiller: Staff Recollections of Women’s Health Care Services of Wichita, 43 Persp. On Sexual And Reprod. Health 199-204 (2011).

[8] Elizabeth Reiner Platt, Many Doctors are Motivated by Their Moral and Religious Beliefs to Provide Abortions. Why Doesn’t HHS Care About Their Consciences?, Public Rights/Private Conscience Project Blog (Mar. 29, 2018), , http://blogs.law.columbia.edu/publicrightsprivateconscience/2018/03/29/hhsconscience/.

[9] Holly Fernandez Lynch & Ronit Y. Stahl, Protecting Conscientious Providers of Health Care, N.Y. Times, (Jan. 26, 2018), https://www.nytimes.com/2018/01/26/opinion/protecting-conscientious-providers-of-health-care.html.

[10] See American Medical Association, Physician Exercise of Conscience, AMA Principles of Medical Ethics, I, II, IV, VI, VIII, IX (2016), https://www.ama-assn.org/delivering-care/ama-principles-medical-ethics. See also American Academy of Physician Assistants, Guidelines for Ethical Conduct for the PA Profession (2013), https://www.aapa.org/wp-content/uploads/2017/02/16-EthicalConduct.pdf .

[11] Compliance with Statutory Program Integrity Requirements, supra note 4.

[12] See 42 U.S.C. §300a-7 (2016).

[13] Compliance with Statutory Program Integrity Requirements, supra note 4.

[14] See 42 U.S.C. §300a-7(c) and (e). See supra note 12.

[15] Id.

[16] Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88).

Public Health Law Watch Comments on HHS Regulation Proposal: Protecting Statutory Conscience Rights

Public Health Law Watch, joined by our friends at the Public Health Law Center, submitted official comments to the U.S. Department of Health and Human Services proposed amendments to 45 CFR 88, "Protecting Statutory Conscience Rights; Delegations of Authority." Based on our combined expertise in public health law and policy, we offered comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.

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U.S. Department of Health and Human Services

Office for Civil Rights

RIN 0945-ZA03Docket

HHS-OCR-2018-0002

Public Health Law Watch (PHLW) and the Public Health Law Center appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 88, “Protecting Statutory Conscience Rights; Delegations of Authority.” PHLW is a project of the George Consortium, a nationwide network of public health law scholars, experts, and practitioners.  The Public Health Law Center is nonprofit affiliate of the Mitchell Hamline School of Law, and a leading center of expertise in the use of law to prevent chronic disease.  The Center’s team of lawyers, law students, policy analysts and graduate students helps health leaders nationwide create communities where everyone can be healthy, with a focus on promoting healthy eating, encouraging physical activity, reducing the use of tobacco products, supporting health equity, and addressing cross-cutting legal issues that affect the nation’s health. Based on our combined expertise in public health law and policy, we offer the following comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.

First, we question the need for these regulatory revisions. As laid out in the Supplementary Information accompanying the proposed regulations, federal law already contains a plethora of provisions that protect individuals who invoke a religious objection to providing certain types of care, including abortion and assisted suicide. Yet, that information contained scant evidence that a pervasive discriminatory environment towards individuals and institutions who invoke these protections actually exists.  Rather, while the evidence provided describes an uptick in “conscience” complaints since the election of President Trump in late 2016, a total of only 44 complaints have been made since 2008. That represents less than 0.2% of the estimated 25,000 complaints that the HHS Office of Civil Rights (OCR) receives every year. Most of the remaining claimed support in the accompanying information is based solely on anecdotal commentary rather quantifiable data. Expanding these existing protections also risks directly conflicting with numerous professional standards, including the American Medical Association acknowledgement that conscience protections are not unlimited and that physicians “are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient.”  The current version of 45 CFR Part 88 is fully adequate to properly address existing and potential complaints about conscience protection violations. HHS can also fully institute its stated goals of ensuring “knowledge, compliance, and enforcement” of existing conscience protections via administrative means that do not require revising and expanding the current regulations.

Second, we are concerned that the regulations contain no protections for patients who face denial of care when health care providers and entities invoke these “conscience protections.”  By leaving patient consideration out, these regulations not only devalue those patients as individuals, but also potentially put their lives at risk. We have no way to know exactly how many times such “conscience protections” have been invoked or the extent of harm caused, but we do know that providers have, for example, refused to inseminate a woman because of her sexual orientation, refused to help a profusely bleeding pregnant woman because the fetus would not survive the procedure necessary to save her life, and refused to transport a pregnant woman by ambulance to a clinic that provided abortions. As the American Academy of Family Physicians has emphasized, “There is a distinct difference between declining to participate in a procedure versus denying access to care to an individual patient. The former is a protected right, the latter is an unacceptable shirking of our basic responsibility to care for our patients and contrary to the key underpinnings of the Code of Medical Ethics.”  Even if OCR prioritizes “conscience protections” of the health care providers and entities, the regulations also need to adequately protect the health and lives of the patients affected when such conscience protections are invoked. Further, the regulations are focused solely on health care providers and entities that refuse to provide certain types of care, yet fail to protect health care workers who view providing services like abortion as moral imperatives and yet face constant barriers and little consideration for their views.

Third, though the regulations are intended to enforce the “conscience protection” provisions in federal law, several of the proposed definitions in section 88.2 are so wide as to significantly expand existing law. We are particularly alarmed about the broad proposed definition of the term “referral or refer for.” While some of the existing provisions include a right for health care workers not to provide a “referral” for a service they have a religious or moral objection to, this definition of referral includes “the provision of any information…by any method… that could provide any assistance in a person obtaining….a particular health care service, activity, or procedure[.]” (emphasis added). This expansive definition conceivably allows a health care provider to not only refuse to provide a direct referral for care, but also to present the health care services he or she is willing to perform as the only medical options available to the patient. This could deprive a patient of the ability to make a decision with informed consent and leave them unaware that they can seek alternative and appropriate care from another provider. Again, these regulations provide no recourse to a patient harmed by this situation; rather, the regulations consider only the provider.

Compounding the concern about the broad definition of “refer,” the terms “workforce” and “assist” also have definitions that include activities, omissions, and persons far beyond the scope of those already protected under federal law. “Workforce” includes not only health care entity employees and contractors but also includes unpaid volunteers. “Assist in the performance” means “to participate in any program or activity with an articulable connection to a…” procedure, activity, or program. This explicitly includes, but is not limited to, “counseling, referral, training, and other arrangements….” These exceptionally broad definitions expand the scope of those who can invoke “conscience protections” beyond those originally envisioned in many of the federal provisions at issue. By allowing such a broad population of individuals to invoke “conscience protections” in such a wide range of situations, the care of patients is further diminished. This particularly puts at risk the health of patients in areas with few existing resources; low-income U.S. residents are already more likely to live in areas with fewer physicians and fewer hospitals and to have significantly poorer health overall. Residents in rural and farm communities also face similar barriers to access and health disparities.  The regulations should ensure adherence to the federal laws so that they apply narrowly and therefore minimize the impact on patient care.

Fourth, we are deeply concerned that these regulations particularly imperil care of the LGBTQ population. Health care already has a long history of anti-LGBTQ discrimination, such as classification of homosexuality as a psychiatric disorder and “treatment” that included electroshocks and “conversion” therapy. Partially as a result of this harm, LGBTQ populations have numerous health disparities, including higher rates of HIV, suicidal ideation and attempts, and violence victimization. They face frequent discrimination in health care contexts and these regulations would only enhance that discrimination by allowing a health care worker to raise a “moral objection” to, for example, homosexuality in general or to same-sex marriage. The objection could conceivably even be invoked to refuse treatment to children who have same-sex parents. Within the LGBTQ community, the transgender population is particularly at risk under these regulations. Absolutely no evidence exists that health care providers are being forced, for example, “to perform gender-affirming surgeries against their will…but what is happening every day, is transgender patients are being denied every kind of medical care you can think of.” A full 22% of transgender people in America already avoid doctors and medical care due to fear of discrimination and 31% have no access to regular health care at all. Those numbers are already alarming in the context of public health; these regulations risk leading to even wider denial of care, which would only increase that crisis.

Finally, the health care services explicitly targeted most often by these regulations (and by existing federal law) are those involving reproduction. In fact, the regulations often seem to be directly intended to “undermine existing legal and ethical protections for patients’ access to sexual and reproductive health information and services, and other critical care.” Many of the existing federal provisions explicitly allow providers and entities to invoke conscience protections in relation to directly providing abortions. But conscience protections have also been invoked to refuse access to emergency contraception for rape victims and to refuse to perform medically necessary procedures to save a woman’s life. The United States already has the worst rate of maternal deaths in the developed world, and this issue is further compounded by significant disparities: black mothers die at a rate 3-4 times more often than white mothers. To allow health care providers to invoke conscience protections to lifesaving reproductive health care even as a woman dies will escalate already unacceptably high rates. Further, these regulations also target – according to the supplementary information provided - laws requiring insurance coverage of reproductive health services, public notice requirements for “crisis pregnancy centers,” and attempts to require hospitals and healthcare professionals to provide abortion care when a woman’s life is endangered. These provisions go well beyond what the federal law currently covers, dangerously encroaching not only on a constitutionally protected right to reproductive health care but also on the very lives of women as patients. 

While protecting religious convictions has indeed been a long-respected – though never unlimited - right in the United States, HHS’s proposed regulations prioritize expansion provider protections without adequate consideration for how they endanger the health and lives of already vulnerable patient populations. We urge HHS not to adopt these proposed regulations.

Sincerely,

PHLW and PHLC

Public Health Law Watch

A project of the George Consortium

Publichealthlawwatch.org

Public Health Law Center

Publichealthlawcenter.org

Making America Healthy Again: Analyzing Trump's Take on the Social Determinants of Health [from Health Affairs Blog]

George Consortium member and Northeastern University professor Patricia Illingworth concludes on the Health Affairs Blog that the Trump administration shows "little interest in addressing the social determinants" of health, such as "education, socioeconomic status, poverty, the physical and social environment, employment, and discrimination, among others..."  

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Access to health care is critical for the health of individuals and for the well-being of the community, but health depends on more than medical care. Studies show that the social determinants of health, including education, socioeconomic status, poverty, the physical and social environment, employment, and discrimination, among others, are at least as important for health as is medical care. It is worth considering where the new administration stands with respect to the social determinants of health. President Trump’s budget, perhaps the best indication we have of his administration’s priorities, unfortunately appears to show little interest in addressing the social determinants.

The President’s Fiscal Year 2018 budget request, proposed back in May, targeted many of the social factors that impact health, slashing funding for education, energy, the environment, housing and urban development, among other social sectors. If the social determinants of health are underfunded, however, people’s need for health care will increase. As a result, these cuts would hurt the health and well-being of people living in the United States and would drive up the cost of health care. Take, for instance, the connection between education and health. According to economists David Cutler and Adriana Lleras-Muney, four extra years of education reduces the risk of heart disease by 2.16 percentage points and the risk of diabetes by 1.3 percentage points. People with more education are also less likely to smoke, drink excessively, use illegal drugs, or be overweight.

In a recent study published by the Brookings Institution, Princeton University economists Anne Case and Sir Angus Deaton show that “deaths of despair”—those associated with drugs, alcohol, and suicide—have risen significantly among middle-aged white non-Hispanic Americans without a college degree. In this respect, the United States is unique among the affluent nations Case and Deaton compare. They largely attribute this rise to a decrease in work opportunities for people with lower levels of education. Trump’s proposed budget, rather than boosting education and training, cuts funding for the Department of Education by 13 percent and for the Department of Labor by 21 percent. It also reduces funding for before-school, after-school, and summer programs by over $1.2 billion.

Living conditions also impact health. Asthma has been found to be the leading cause of children’s visits to emergency rooms, hospitalizations, and school absenteeism. Exposure to parasites and infectious agents, air pollution from vehicles, and the construction of buildings with poor circulation and little fresh air are among the causes of asthma in children. Not surprisingly, asthma is more prevalent in poor and minority communities. There is also evidence that public housing is itself a risk factor for asthma. Instead of increasing support for housing, Trump’s budget proposes a 15.2 percent reduction to housing assistance over a 10-year period.

The burden of the proposed budget’s assault on the social determinants of health will be borne primarily by the poor, but not only by them. Because people are social, the health of one person can impact the health of many people in a community. Health has some of the qualities of a public good. People are social; they flourish in the company of others. Their health is affected by the health of others and it affects the health of others. Contagious diseases are one example of how the poor health of one person can affect the health of others. Herd immunity demonstrates how the good health of some confers health benefits on others. To put it differently, health has a spillover effect.

Studies show that people are healthier when incomes are relatively equal, when early education is high-quality and accessible, and when poverty is low. For better or for worse, our health depends upon the health of other people, and their health upon ours. Unless we are prepared to live solitary lives, policy that affects the social determinants of health must contend with the inextricable connection between our health and the health of others.

Given the social dimensions of health, failure to ensure the health of all people with, for example, enriched educational opportunities and adequate housing and social programs, puts everyone’s health at risk. There are important social justice reasons for promoting the social determinants of health. But one need not care about justice and ethics to want to provide for the health of others. Self-interest speaks for itself. In this case, the message is loud and clear: ignore the health of others at your peril.

Public Health and the Battle for Local Control

By Micah Berman

Last year -- over at Notice & Comment -- I blogged about two laws in Arizona that were taking seemed to be extreme forms of state-level preemption.  SB 1847 provided that if the state Attorney General concluded that a local government had passed a local law that was preempted by state law, the state could withhold all state funding from the locality.  Meanwhile, SB 1524 provided -- in incredibly broad and vague terms -- that a local government "may not take any action that materially increases the regulatory burdens on a business unless there is a threat to the health, safety and welfare of the public that has not been addressed by legislation or industry regulation within the proposed regulated field."

In a recent article in the Journal of Law, Medicine & Ethics, James Hodge and colleagues helpfully noted that these two laws are part of a broader trend they have labeled "Preemption Plus."  Hodge et al, explain:  

These schemes, including direct threats, fines, loss of funds, and deauthorizations, are gaining traction especially in public health arenas impacting big industries (e.g., tobacco, sugar sweetened beverages (SSBs)) or specific interests (e.g., rights to bear arms, religious freedoms). Collectively, they can essentially force states or localities to comply with higher level policies that are antithetical to the public’s health.

"Preemption plus" efforts noted by Hodge et al include a Florida law providing that local officials can be held personally liable for enforcing preempted gun control laws, and a proposed law in Virginia that would make "sanctuary cities" liable for crimes committed by undocumented immigrants.  Not included in their account was a law I recently heard about in Colorado, that withholds state cigarette tax funds from local governments that pass their own tobacco control regulations.

A July New York Times article notes many of these same efforts and dives deeper into the politics of preemption.  It notes:

In the last few years, Republican-controlled state legislatures have intensified the use of what are known as pre-emption laws, to block towns and cities from adopting measures favored by the left. The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.

It notes that the industry-based American Legislative Exchange Council (ALEC) has been promoting model state laws pushing some of these "preemption plus" tactics.

Interestingly, the NY Times article mentions the late 19th-Century practice of "ripper bills" that took authority away from local governments and passed it to the states.  According to Richard Briffault, these laws were often passed by rural-dominated states legislatures that wanted to take power away from the cities.  These "ripper bills" were also frequently the product of corruption, designed to benefit special interests.

Outrage at "ripper bills" led to the rise of the modern "home rule" movement, prompting state constitutional reforms and other efforts aimed at protecting local control.  Will the rise of "preemption plus" tactics lead to a similar backlash?   A new organization, the Campaign to Defend Local Control, has formed to bring attention to this issue and to push back against preemptive laws.  Those interested in promoting public health should wish them well and get involved.