Better Health Faster

It is easy to identify health laws that have helped Americans live longer, healthier lives. Indeed, most of the greatest public health accomplishments of the last century depended on legal action. The coordination of research, policy development, public education, and advocacy in the tobacco control movement shows that success is attainable even in the face of powerful industry opposition.¹ The development of automobile safety laws during the past 30 years shows how well-conducted, properly diffused research can instigate policy cascades and guide policy refinement over time.² These examples of “interventional health law”³—using law as a tool of intervention—also illustrate that developing, enacting, evaluating, and spreading health laws is not just the work of lawyers. In these and many examples like them, health advocates, researchers, public health practitioners, and lawyers work in strategic partnership to improve population health through law and policy.

Consistent with the literature on the art and science of evidence translation,^4,5 these efforts were built on effective practices, such as cultivating partnerships among diverse stakeholders. These partnerships promote (1) research that is targeted at the most strategically relevant questions; (2) the development of model laws based on the best available science; (3) sophisticated community education and advocacy campaigns to win, defend, and enforce effective policies; and (4) enforcement to ensure that improved public health outcomes are achieved and sustained.^6–8 The starting point for this commentary is that public health law is not just the work of lawyers but must also be owned by the range of public health disciplines as a transdisciplinary activity.⁹

Knowing how to translate what we have learned from research and experience into effective public health law interventions is not the problem. The problem is that the public health system, writ large, does not deploy well-recognized best practices consistently or strategically across topics. Legal interventions affecting millions of Americans are often not scaled or evaluated for years, if at all. Innovations that show promise in research or practice do not spread, or they spread too slowly.^10,11 The pace can be even slower when innovations are faced with organized ideological or industry opposition.¹² Success requires investment in the same legal infrastructure that was created for tobacco control and alcohol policy and is newly underway in obesity prevention.

“Legal infrastructure” refers to the people, methods, and tools needed to move a policy from conception to widespread implementation. The first step in establishing this infrastructure is defining its elements. After publication of the 1988 Institute of Medicine (IOM) report The Future of Public Health,¹³ public health as a field embarked on an effort to define, measure, and improve the public health system.^14,15 Yet, despite its key role, law largely escaped that systematic treatment. Two of the 10 essential public health services explicitly concern legal and policy work: (1) “develop policies and plans that support individual and community health efforts” and (2) “enforce laws and regulations that protect health and ensure safety.”¹⁶ A recent review, however, found that law has not been robustly integrated into public health systems research and that many basic questions about legal capacity and legal efficacy are unanswered.¹⁷ A transdisciplinary model of public health law that integrates legal and scientific practices demonstrates the value of applying to law the measurement and evaluation approach used in public health in general.⁹ In this commentary, we describe the 5 essential public health law services that define the observable, improvable services required for health agencies and systems to develop and enforce laws to improve public health. As with the 10 essential public health services in which it is nested, this framework can be used to define, evaluate, and strengthen public health law functions across the public health system.

The 5 Essential Public Health Law Services

The mission of public health law is to support the design, implementation, monitoring, evaluation, and scale-up of legal measures that improve public health and health systems. Public health law deploys traditional legal functions, such as advising health officers on legal options or drafting legislation for policy makers. However, it also includes many law-related activities—such as policy development, advocacy, enforcement, monitoring, and evaluation—that are most often performed by people without formal legal training, sometimes in collaboration with lawyers and sometimes not. We present these activities in the form of 5 essential public health law services (Figure). We assert that improving the capacity of lawyers and public health practitioners to work both independently and together to deliver the services will be beneficial for public health.

Figure.

The 5 essential public health law services.

Each link in this iterative chain of services is necessary; if any service is missing, even the best legal interventions may fail. These services are not all purely legal and are not provided only by lawyers. This endeavor is cross-sectoral, requiring expertise, methods, and tools from nonhealth sectors that affect public health (eg, transportation, housing). Although the links are portrayed in a logical order, the process of legal intervention is not linear, let alone orderly. Experience in any one cell can feed back as new demands on another, as when one version of a proposal fails politically or when enforcement must be tweaked. Policy windows open at unpredictable moments, and legal innovation can unfold chaotically across local and state laboratories of democracy. Good policy ideas or model laws may lie dormant for years until research defining the problem they solve strikes a public chord. Thus, these services are general capacities that are needed to operate and be in readiness at all times. The framework can be used as a specification of the legal elements of the 10 essential public health services to break policy-related functions into component methods and tools that can be readily understood and widely available to the public health research and policy communities.¹⁵

Public Health Law Service 1: Ensure Access to Evidence and Expertise

The first step is to identify a policy that has a reasonable chance of making a difference politically, legally, and epidemiologically. Devising a viable policy approach requires that the policy makers, practitioners, and advocates who are involved have access to relevant evidence and expertise. Developing policy strategically involves more than hoping that policy developers will find the research and experts they need; it involves creating relationship networks that maintain ongoing research and are ready to initiate new research as needed, given the potential policy demands.^6,18

Policy is politics and can be difficult. Defining the problem is crucial to good politics. If the epidemiologic definition of the problem is wrong, the policy intervention designed around the definition will fail. When a community is grappling with a new problem or trying a legal solution for the first time, the success of policy innovation will depend on (1) scientific expertise that can shed light on the problem and how its suspected environmental and behavioral drivers can be blunted; (2) local knowledge of how a problem or solution plays out in a particular setting; (3) political expertise on how the problem and its solution can be framed to generate maximum concern and support; and (4) legal expertise on the ways that laws, regulations, or other levers can be used to best effect.

If the problem being addressed has been well defined politically and epidemiologically and if legal interventions have been attempted and evaluated, policy stakeholders who are facing the problem for the first time will still need to access and understand the evidence base. Finding evidence-based options that already exist requires cutting a path through a glut of information that policy makers often lack the time, resources, and expertise to fully analyze.¹⁹ State and local policy makers and advocates may not have access to scientific literature and may be unaware of resources such as Healthy People 2020 or the many groups that translate evidence into issue briefs and model policies.^20–22 When policy makers are simply adopting a solidly evidence-based intervention, local political or social conditions may pose new questions. The problem may present differently in this new place and time or may be perceived as such so that epidemiologic or behavioral research or a health impact assessment may be required to refine the definition of the problem or make the case for action. In such cases, researchers, practitioners, and lawyers need to collaborate in real time to interpret or rapidly bolster evidence.

If new policies are proven effective, they can be scaled to reach a broader audience. As policies are tested and new research is conducted, laws must be amended to reflect the available science. For example, child safety-seat laws have changed many times during the years to reflect new evidence, technology, and standards.² The process of policy improvement is continual and highly iterative, with the emergence of new evidence driving the refinement of existing interventions.

Public Health Law Service 2: Design Legal Solutions

A key public health law service is translating a policy solution into a legal form that is technically sound and politically acceptable, designed to gain maximum compliance with minimum enforcement, and calculated to avoid or overcome legal challenges. Lawyers are indispensable at this stage and may work as counsel to health agencies or in legislatures or other government agencies. Public health law expertise is also found in nongovernmental and academic organizations.

At the outset, lawyers must assess the authority of a policy maker. For example, a local alcohol tax may be preempted by state law; a labeling requirement would have to be considered in light of the Supreme Court’s expansion of protection for commercial speech. Some limits are political, but legal counselors can often contribute political acumen as well. Once authority is certain, lawyers can devise options that take full advantage of the legal instruments (eg, statutes, regulations, executive orders, enforcement guidance, case law) and the many ways that laws can be designed to influence behavior or environments. Lawyers can work with researchers to ensure the development of scientific evidence necessary for justifying a law or for advocacy or litigation purposes.²³ Lawyers and public health practitioners can work together to better understand the shortcomings of existing public health laws and how they may be better implemented or amended to address the health problem at issue. They can train advocates on what the law allows and how to overcome common legal or political barriers that may be placed in their way. They can also counsel elected officials on how best to achieve policy goals.

Despite the IOM’s recommendation “that every public health agency in the country have adequate access to dedicated governmental legal counsel with public health expertise,”²⁴ many public health agencies do not have access to legal counsel. Increasingly, however, other resources are helping to fill the gap. The Network for Public Health Law, a national program funded by the Robert Wood Johnson Foundation, provides legal technical assistance and resources on public health law to people and organizations concerned about public health. The Centers for Disease Control and Prevention’s Public Health Law Program provides similar assistance to its health officials and those at the state, tribal, local, and territorial levels. Organizations such as ChangeLab Solutions, the Public Health Law Center, and the Public Health Advocacy Institute provide individualized assistance and training and craft generic templates or model text of law and legal instruments, such as joint use agreements.²⁵ A strategic approach to public health law is calculated to expand access to these essential legal services.

Public Health Law Service 3: Engage Communities, Forge Partnerships, and Build Political Will

Proponents of healthy laws, even if armed with solid legal strategy and text, face the challenge of getting the legal intervention onto the books. Just as lawyers are indispensable in designing legal solutions, partners’ experiences in community engagement and advocacy are indispensable in getting healthy policies enacted. Building understanding and support is often the most difficult phase of the policy process and is frequently focused on developing the political will for action among a large and varied group of stakeholders. It can require educating the public about the problem and the solution, working with the community and building coalitions to mobilize active support, getting the public to participate in rule making and other policy-making processes, conducting research on opposition, and lobbying policy makers. All of these activities require resources, skills, and experience, and the literature explaining how to conduct these activities is vast.

Organizations that focus on public health law education and advocacy can provide services such as in-depth legal and policy analysis and how-to guides, action-oriented training, technical assistance, and mentoring services. These organizations can help bring evidence and solutions to policy makers in a form that speaks to them, or they can help researchers and policy makers form the relationships that are integral to translating science and law into practice.²² Together, these integrated services are designed to educate and inform decision makers about the best practices and policy options that are available to them and to build their capacity to get them enacted and implemented. Much of this work is conducted by people who have no formal law training.

Some legal interventions in public health face opposition based on ideologic or financial interests. People who oppose government interventions on principle or for more practical reasons are well organized, well funded, and integrated into think tanks, policy shops, advocacy organizations, academic groups, and business networks. They work assiduously and with few legal barriers to disseminate research that purportedly shows that laws are not needed or will not work; to use preemption and litigation to block legal interventions; to keep their networks well informed; to engage and mobilize the public, allies, and surrogates; and to learn how to blunt implementation of any interventions that make it through the process. They are doing public health law, and they are often doing it very well.

Public health agencies and philanthropies are more limited than many opponents of legal action in what they can accomplish in terms of advocacy. They are subject to rules and prudential considerations that constrain their ability or willingness to engage in lobbying or self-directed advocacy for legislation.²⁶ Few organizations have the capacity to undertake single-handedly the full range of tasks—building community coalitions, engaging in communications, spending face time with legislators—needed in a strategic advocacy campaign. Enhancing capacity among lawyers and nonlawyers to engage the community, forge partnerships, and build political will require support for organizations that can directly and effectively participate in the democratic process.²⁷ National organizations such as the American Heart Association and American Association of Retired Persons take positions and work directly and through affiliates and partners to build public support for policy proposals. A strategic approach ensures that the necessary communications and lobbying capacities are mobilized and networked in a public health legal campaign.

Public Health Law Service 4: Enforce and Defend Legal Solutions

Enforcement and compliance are critical to the success of legal interventions. The effort to design, draft, and win enactment of a law can come to nothing if getting its targets to obey has not been carefully thought out, provided for in the law, and sufficiently resourced. Some interventions, such as smoke-free laws, rely heavily on information and social norms and may require little direct enforcement.²⁸ Others, such as lead abatement regulations in housing, require consistent inspection and enforcement to reduce child exposure.²⁹ Enforcement is difficult, and its importance has been chronically underestimated in public health law practice and research.

Enforcement must be considered in every link in the chain of services. Policy developers should carefully consider how a law might actually work to secure the desired behavioral or environmental changes. Lawyers, public health practitioners, and policy makers engaged in drafting the laws must plan for effective enforcement that builds in the accountability structure, financing mechanism, required reporting, record keeping, or inspection. Advocates must resist the temptation to trade enforcement tools or funding to get a measure passed. Once a law is enacted, enforcement requires good management and adequate staffing. Epidemiologic, laboratory, inspection, and legal staff members must cooperate to identify problems and targets and develop evidence to meet the burdens of proof needed to investigate and prove violations. Although key actors are often not lawyers—from agency administrators to line staff members who conduct inspections and enforcement activities—they do require a firm grasp of regulatory technique and legal principles, including due process requirements. They must know when to call lawyers, and those lawyers must be available.

Effective regulation requires methods that effectively distinguish the well intended from the careless or resistant, that direct scarce regulatory resources efficiently, and that forestall gaming behavior.³⁰ Modes of enforcement available in a well-strategized public health law campaign include traditional government action (eg, inspections, audits), but modern regulation takes many forms. Industry self-regulation and enforcement through private litigation, shaming, or consumer action can both be effective under the right circumstances.^31–33 Little attention has been paid to understanding how to better enforce health laws or provide technical assistance and tools to health agencies that are struggling to implement laws with poorly designed enforcement strategies or without adequate resources. This gap deserves more attention from policy makers, legal experts, and public health practitioners.

Most public health legal interventions are never challenged. Those that are challenged often have an outsized role in shaping the perceptions of public health’s mission and authority. Good legal work at the policy development and drafting stages can forestall many challenges, but anticipating and executing defensive litigation is a necessary public health law service.²³ Effective participation of external legal and health experts—for example, by preparing legal briefs as amici curiae (friends of the court) or advising the jurisdiction affected—can contribute greatly to the likelihood of success.

Public Health Law Service 5: Monitor and Evaluate Policy

If law matters to health, then public health officers, policy makers, and researchers need to know what the law requires, where it applies, and whether it works. Policy surveillance is the ongoing, systematic collection, analysis, and dissemination of information about laws of health importance.³⁴ Policy surveillance generates data to evaluate laws and policies, measure the progress of legal campaigns, and provide public access to legal information.³⁵ The use of scientific coding procedures, combined with modern information technology, allows the efficient publication of digitized data to the Internet. Publication supports the rapid diffusion of policy information to health professionals, policy makers, and the public. The adoption of policy surveillance as a standard practice of public health, which the IOM has encouraged,²⁴ will bring traditional legal research in line with how public health monitors other phenomena of interest (eg, incidence of disease), making it easier to track the adoption of policy recommendations. Partnerships among quantitative researchers, including epidemiologists, biostatisticians, and legal researchers, can lead to the integration of legal data with health data sets to evaluate a law’s health effects.³⁶

Evidence-based public health law rests on evidence, which the public health community knows how to produce rigorously and in time to shape policy.² The Guide to Community Preventive Services and the Cochrane and Campbell review libraries have found enough evidence to designate more than 40 major legal interventions as effective.³⁷ There is, however, room for improvement in the funding of timely evaluations of the many health interventions initiated by state and local lawmakers. More research is also needed on implementation and the generic mechanisms of legal effect. Health impact assessment, modeling, experiments, and other research aimed at informing policy development are underused. The dispatch with which our health research system identifies effective and ineffective legal interventions can be measured in lives and resources saved.

Toward a Transdisciplinary Public Health Law Infrastructure

A stronger public health law infrastructure is the foundation for evidence-informed health law and improved population health. The 5 essential public health law services are designed to increase the strategic and evaluative impact of the 10 essential public health services approach on the law-related aspects of public health practice. The services outlined in this commentary are not novel, but they have not been consistently conceptualized, deployed, or evaluated in this structured fashion. Applying this framework within public health systems and research will be a learning process in both its strategic and evaluative dimensions. Some major health law campaigns, such as those targeting obesity, already cover all these bases. Using the framework for diagnostic purposes may reveal gaps in legal services (eg, advocacy support for soda taxes, policy surveillance of school physical education requirements). In other areas, such as diabetes control and drug overdose prevention, a systematic audit may reveal more substantial gaps. The tool may also be applied within broad topic areas or to assess infrastructure in relation to legal interventions, such as removing legal barriers to the operation of syringe exchange programs.

The scope for the framework as the basis for better planning and service delivery is considerable. Substantial effort is made by the federal government to develop recommendation resources, such as Healthy People and the Community Guide, but little is known about how (and how well) the information they offer reaches policy makers and whether the resources address topics of concern to legislators. Legal expertise for public health work is more accessible today than ever before, but too many health departments still lack dedicated legal counsel because many local departments are too small to support their own lawyers. There is no guarantee that current public health law programs will continue to be supported. Although policy surveillance is gaining visibility, its effects are largely untested. Too few resources are devoted to rapidly and credibly evaluating the impact of legal health interventions. Quality improvement requires that we measure what we are doing in public health law and learn from the results. Perhaps the best reason to adopt a strategic approach is that those who oppose action have already done so. Organizations subjected to regulation systematically develop evidence (or what they put forward as evidence) and implement concerted action across the domains of the model in exactly the way that we propose here.³⁸ Indeed, they are usually more skilled and always better funded than public health forces.

Law is important to all facets of public health. Researchers, practitioners, policy makers, and advocates all have roles to play in designing, enforcing, monitoring, and evaluating the law. True integration requires good coordination of people doing different things in different disciplines, but it also requires adoption of shared methods, tools, and perspectives. The framework presented in this commentary defines the necessary components of a strategic effort that can enhance the chances that lifesaving legal reforms can be devised, tested, and spread as quickly as possible. Funding legal infrastructure is a sound investment in achieving better public health faster.