By Scott Burris
As we look toward National Public Health Week amid two long years of a pandemic, reflection for us at the Center for Public Health Law Research has focused on how we move forward in a mostly broken public health system. We see public health law as a central component of a strong future for public health, where transdisciplinary partnership leads the way.
COVID-19 has demonstrated that the impact of law lies not on what is written in the books but what is implemented on the streets. Implementation was largely the problem with law during COVID-19, and that goes directly to the degree to which public health decisionmakers and frontline staff understand how law actually influences behavior and environments, and what it takes to get people to obey the rules. That’s why we public health lawyers see improving the understanding and utilization of public health law as two sides of the same coin. As part of our work to improve the use of law in public health, a partnership of public health lawyers developed a model of Five Essential Public Health Law Services that defines five core legal competencies that virtually everyone in public health needs: designing legal interventions, putting them into actual legal form, advocating for them, implementing them, and evaluating them. These competencies convey two big ideas about law.
The first big idea is that most people in public health, regardless of their training or discipline, are actually doing legal work as part of their jobs. It’s not just lawyers, and lawyers can’t do it alone. Lawyers don’t come up with smoking bans or vaccine policies, we don’t make the decisive political judgments, we don’t lead the advocacy and public education work, we don’t distribute masks or inspect restaurants, and we don’t do the scientific work of documenting effects and side effects — yet all these steps, and the skills to do them, are crucial to making law do what we want it to. Public health leaders and staff get virtually no robust professional training in how to do their legal work properly. As COVID has shown, for example, few public health decisionmakers have a good grip on why people obey the law and how to design and implement regulations to optimize compliance. The repeated series of elementary design and implementation mistakes was incredibly painful for us in public health law to watch.
The second big idea is that using law for public health is a process in which all the elements — from policy design to evaluation and diffusion — have to be well-integrated for law to work. Keep in mind that even in emergencies, public health has the initial impetus, the first chance to define response measures. Through all of what happens next, we always have the most control over what we propose, so the greatest stake in getting it right. If people who design policies are not thinking about legal issues, they may not be ready with good evidence and strong rationales when their policies are challenged in court; if they are not thinking about politics, they may design a legal intervention that can’t be passed or that is hamstrung by widespread non-compliance; if they are not thinking about implementation during the design, drafting and advocacy stages, they may fail to get the specific powers or the appropriation they actually need to implement the law. If we don’t treat legal interventions like other interventions, and properly evaluate them, we don’t know if they are working — or whether they are actually causing harm.
So, as with the first big idea — that law is an integral part of most everyone’s public health work — the idea that law requires the deployment of strategic thinking and a wide range of skills makes clear that we need a drastic improvement in the nature and extent of public health law training and competency if we are to avoid implementation disasters in the future. The “science” we need to effectively use law in public health is not just epidemiology, but social psychology, legal sociology, political science, engineering, economics and so on.
What we clearly saw in COVID was not a problem with law on the books — with the powers available — but in how hard they were to use effectively. We use the Five Essential Public Health Law Services to take law more seriously, not just as rules, but as a set of skills and tasks. Politics, society, and the economy often make our work hard, and we can’t change that. Those external forces cannot be explanations for failure: they are the conditions we’re paid to deal with. Dealing with these barriers, under condition of uncertainty, puts a premium on good judgement, which depends in turn on our storehouse of competencies and our mental and professional openness to useful ideas. Lawyers and long-term thinking about law and human behavior must be more deeply entrenched in public health training and the professional skillset for public health workers of all capacities. True integration of public health, social and behavioral science, and law is the only way forward.
Scott Burris, JD, is a professor at Temple University’s Beasley School of Law and the College of Public Health, and director of the Center for Public Health Law Research.