All or Nothing? Compromise and Consistency in Public Health Jurisprudence

Public health policymaking, whether by legislatures or public health agencies, is an exercise in compromise.  It is inevitably constrained by politics, which produces a systemic bias in favor of moderate, incremental approaches and against sweeping change.  Moreover, public health policymaking is often intentionally incremental and incomplete.  What may initially appear to be arbitrary inconsistencies may be (a) experimental initial responses to emerging public health threats, (b) attempts to balance public health concerns with the preservation of consumer choice or other interests, or (c) reasoned distinctions between activities that threaten public health and similar activities that do not. 

By contrast, a wide variety of legal doctrines under which public health policies are evaluated put a premium on consistency.  In the administrative law context, for example, an appellate court recently invalidated New York City’s beverage portion size rule in part because it did not apply equally to all categories of retailers.  In international trade law, the U.S. was found to have violated WTO commitments by banning clove cigarettes but not menthol cigarettes.  And in the First Amendment context, courts have invalidated marketing restrictions that make “speaker-based” distinctions between categories of businesses.  All of these doctrines push public health regulation towards “all or nothing” approaches—the government must regulate extensively or not at all. 

This presentation will use these recent examples to explore the tension between compromise and consistency in public health jurisprudence and the dangers that an implicit “all-or-nothing” rule poses to public health and to the political process more generally.