Part III: The Importance of Law in Public Health and Health Equity

A. The Importance Of Law In Public Health and the Achievement of Health Equity

Scholars have long debated the appropriate role of law in furthering the public's health. Broadly speaking, the overarching tension is between paternalism and autonomy--that is, between government's right or obligation to enact laws that either circumscribe individual autonomy (e.g., helmet laws) or shift the decision-making paradigm toward more desired choices (e.g., tobacco taxes) versus an individual's freedom to engage in conduct not immediately and directly harmful to others. Law is an essential tool in reducing health inequity because it is axiomatic that a laissez-faire system disadvantages those individuals with less education, fewer resources, and less political power. The distributive consequences of health policy interventions become quite relevant in any consideration of health equity--where a laissez-faire system may aggravate disparities affecting the already disadvantaged, there are other options, particularly coercive legal mechanisms, that would both improve overall population health and reduce disparities. In some situations, coercive legal mechanisms are the tool by which government can and should “level the playing field,” enabling all people to have an equal opportunity to achieve complete health. The more difficult question is how to do so while preserving a level of autonomy that is consistent with democratic ideals.

Although HP 2020 explicitly seeks to achieve health equity, its unwillingness to advocate for legal approaches in achieving specific objectives is problematic because many voluntary policy initiatives first--and sometimes only--impact population groups that are already at the top of the health ladder. For example, educational campaigns designed to increase desired health behaviors are necessarily less likely to positively affect individuals with limited health literacy. Urging people to eat healthier foods and exercise more means little if steps are not taken to address the myriad social determinants affecting individual choices about food and exercise. The disparate impacts of purely voluntary health promotion policies further the case that coercive legal measures have a key role to play in eliminating disparities. By virtue of their broad applicability and uniform application, well-crafted coercive legal measures are better suited than purely voluntary initiatives to lead to health improvements across all population groups, and, in many instances, to a reduction in disparities.

In the U.S., even where government action on behalf of public health is desired, there is an additional tension between the role of the federal government as compared to that of states and localities. The federal government lacks the state general police power in regard to health and welfare, so federal actions affecting health must be justified under one of Congress's enumerated powers, usually the Commerce Clause. Moreover, even where the federal government has the power to act, there is also the question of which governmental body should act to address various public health concerns. Gostin has observed that “[t]he level of government best situated for dealing with public health threats depends on the evidence identifying the nature and origin of the specific threat, the resources available to each unit for addressing the problem, and the probability of strategic success.” In that vein, concerns often arise regarding federal preemption of a field of regulation, particularly “ceiling preemption,” whereby states and localities are prohibited from enacting measures more stringent than those required by federal law. A recent report by the IOM on the role of law in public health (IOM LPH Report) recommends that, wherever appropriate, federal and state laws set floors rather than ceilings, thereby allowing states and localities the flexibility to enact more stringent standards to protect public health. Similarly, the HHS Action Plan To Reduce Racial And Ethnic Health Disparities recognizes the importance of legal approaches in combating disparities, although its analysis in that regard is primarily confined to the recently enacted Patient Protection and Affordable Care Act (Affordable Care Act or ACA).

Even once the questions of the desirability of government intervention and the appropriate governmental level (federal, state, or local) to implement policies are settled, there is another critical question--Which legal and public policy options will best further population health and health equity? As the IOM LPH Report observes, when government acts to protect public health it has a broad array of legal and public policy options from which to choose, including:

• [T]axation, incentives, and spending (e.g., cigarette and other “sin” taxes, and allocation of the tax to combat the problem, may include pricing policies and financial incentives);

• [A]ltering the informational environment (e.g., food or drug labeling, and disclosure of health information);

• [A]ltering the built/physical environment (e.g., zoning, toxic waste);

• [A]ltering the natural environment (e.g., clean water, air, environmental justice);

• [D]irect regulation (e.g., seatbelts, helmets, drinking water fluoridation, folate fortification of grain-based products, iodized salt; licensure of medical care providers and facilities);

• [I]ndirect regulation (e.g., tort litigation in tobacco); and

• [D]eregulation (e.g., distribution of sterile injection equipment or criminalization of HIV risk behaviors).

As the report notes, cost and cost-effectiveness are often of primary concern among government officials; thus, it is necessary for public health advocates to remind decision makers that evidence strongly supports the position that certain policy interventions offer excellent health returns for the funds invested. The IOM LPH Report concludes that governments can and should utilize effective legal and policy tools to address the leading causes of injury, disease, and early death. However, the IOM does not take a position as to which legal tools are most likely to eliminate disparities, either in general or in specific instances. Among the legal tools available to governments, the most “coercive” are direct regulation and taxation, in that they directly affect consumer behavior either before or at the point of decision-making. Moreover, direct regulation and taxation in general apply to all individuals, and, therefore, in theory, where the behavior intended to be affected is more heavily concentrated among disadvantaged groups, the coercive legal mechanism will affect those groups more strongly, therefore reducing health disparities. However, important concerns about the regressive nature of certain taxes (e.g., cigarette taxes or soda taxes) argue for careful adoption of taxation only in instances where the harm of the product outweighs the hardship imposed by the tax. In addition, taxation in the absence of complementary measures (e.g., tobacco cessation assistance) could be considered unjust in that persons most strongly affected by the tax (lower income individuals) will be the least able to offset the hardship of that tax.

Notwithstanding the importance of complementary measures, when assessing policy interventions purely from a perspective of which are more likely to reduce disparities within an overall population health framework, there are many instances in which coercive legal mechanisms are not only the best, but also the only realistic means of doing so. HP 2020's failure to advocate for those coercive legal mechanisms thus undermines its central objective of achieving health equity. However, even well-intentioned legal mechanisms must be assessed not only for their capacity to improve overall population health, but also for their likely impact on vulnerable populations. For example, the ACA encourages employers to implement “wellness programs,” allowing employers to offer significant financial incentives to employees who meet health-related goals. Without recognition of the barriers to health presented by social determinants such as income level and neighborhood, wellness programs could easily become a tool of discrimination against already disadvantaged individuals. Thus, to truly further health equity, HP 2020 must go further than its current approach of setting targets without recommendations for achieving its objectives--rather, the Project must acknowledge the distributive consequences of various policy options and advocate for those coercive legal measures that are likely to reduce disparities and thereby further health equity.

B. By Failing to Advocate Adoption of Effective Coercive Legal Mechanisms, Healthy People 2020 Fails to Fully Incorporate Health Equity

Healthy People 2020 is organized into a series of thirty-nine topics, each with multiple objectives. Of the thirty-nine topics in HP 2020, the majority have health equity implications. It is not possible to address each in depth; therefore this paper will discuss four diverse topics with particular relevance to health equity and coercive legal mechanisms: (1) Access to Health Services, (2) Environmental Health, (3) Heart Disease and Stroke, and (4) Nutrition and Weight Status. These four topics allow an assessment of the importance of legal mechanisms across a broad spectrum. Much of the analysis is applicable to other topics; for example, the analysis with respect to heart disease has implications for other disease-specific topics such as cancer, diabetes, and HIV.

1. Access to Health Services

Healthy People 2020 considers that Access to Health Services (Access) involves four components: coverage, services, timeliness, and workforce. Of those four, the most immediately relevant to health equity are access to coverage and services. Access has widespread impact on all aspects of an individual's health, making disparities in Access particularly relevant to health equity. As HP 2020 states, “Disparities in access to health services affect individuals and society. Limited access to health care impacts people's ability to reach their full potential, negatively affecting their quality of life.”

a. Access to Coverage

The 2011 HHS Action Plan To Reduce Racial and Ethnic Health Disparities highlights the significant racial and ethnic disparities in access to health care:

Lack of insurance, more than any other demographic or economic barrier, negatively affects the quality of health care received by minority populations. Racial and ethnic minorities are significantly less likely than the rest of the population to have health insurance. They constitute about one-third of the U.S. population, but make up more than half of the 50 million people who are uninsured.

In the HP 2020 Access objectives, the baseline rate of insured Americans is 83.2%, and the target goal is 100%. However, as would be expected, the proportion of uninsured Americans is not evenly distributed across racial and ethnic groups or socioeconomic levels. In the 2008 National Health Interview Survey (NHIS) Report, which is used in formulating the HP 2020 Goals and Objectives, evidence showed that persons with income below 200% of the poverty level were significantly more likely to lack insurance (29.7%) than those with incomes above 200% of the poverty level (10.4%). In addition, wide variations existed across racial and ethnic groups, ranging from a rate of 10.8% of non-Hispanic whites uninsured to 34.1% of Hispanic (any origin) uninsured. Trends have not improved in the intervening years. The most recent Census Bureau report (2010) reports that the U.S. average percentage of uninsured is 16.3%, with a range of 11.7% for non-Hispanic whites to 30.7% for Hispanic (any origin). Evidence indicates that uninsured persons are more likely to have negative health outcomes. Thus, the disparities in insurance coverage are particularly relevant to health equity.

b. Access to Services

There are three key components of access to services: access to a primary care provider (PCP), access to preventive services, and access to emergency care. Though all relate to health equity, and there are disparities across all three, this paper will primarily address access to preventive services because it is the most relevant to legal interventions. Although preventive services are very often received from a primary care provider, distinctions are necessary between access to a primary care provider and access to preventive services. In HP 2020, access to primary care providers primarily focuses on ensuring that there are sufficient primary care providers available to serve the population, whereas access to preventive services seeks to ensure that preventive services are affordable in addition to being readily available. As with access to coverage, there are wide disparities in access to and use of preventive services. Moreover, although use of preventive services is increasing in the population as a whole, disparities among population groups in utilization are not improving. This is troubling because preventive services are critical to achieving health equity-- empirical evidence shows that timely and effective use of preventive services leads to better health outcomes. Thus, a prerequisite for achieving health equity will be narrowing--and ultimately eliminating-- disparities in access to preventive services.

c. The Patient Protection and Affordable Care Act, Access, and Health Equity

This section will first consider the health equity implications of the Affordable Care Act's dramatic expansion in health insurance coverage via the expansion of Medicaid and the creation of insurance exchanges on which individuals and small businesses may purchase coverage. Next, subsection ii will evaluate the content of the insurance benefits individuals will be obtaining, assessing whether the laws applicable to the content of the benefits further health equity.

i. Expansion in Access via Medicaid and the Individual Mandate

In its Access objectives, HP 2020 makes no recommendations for how improved access to services might be achieved, nor does it advocate for a mechanism to achieve 100% insurance coverage. This is surprising because the evidence is clear that the market-based system that has dominated U.S. health care has not, and cannot, lead to universal coverage without significant regulatory change-- that is, through the use of coercive legal mechanisms. The debate preceding the passage of the Affordable Care Act demonstrated this point: the Congressional Budget Office estimated that a package of market-based initiatives proposed by Republican members of the House of Representatives as an alternative to the ACA (e.g., allowing individuals to purchase insurance across state lines and reforms on medical malpractice lawsuits), would lead to essentially no reduction in the percentage of uninsured individuals over a ten-year period. Yet Healthy People takes no position as to how access to coverage can be increased, nor how disparities in access to coverage can be reduced.

The Affordable Care Act is a prime example of the necessity of coercive legal mechanisms to disparities elimination. Specifically, the Affordable Care Act contains coercive legal mechanisms that (1) require all individuals to carry health insurance and (2) regulate the content of the insurance policies and the behavior of insurance companies in issuing them, without which there would be no feasible way of extending coverage to all individuals. The Affordable Care Act is a critical component in addressing disparities in Access in that it is projected to dramatically expand access to coverage and services--at the time the law was passed, CBO estimated that an additional 32 million individuals would gain coverage under the Act. The most obvious way in which the ACA furthers Access is in the combination of provisions that will allow nearly all U.S. citizens and legal residents to access health insurance. The ACA accomplishes this dramatic expansion in access, estimated at an additional 32 million individuals obtaining health insurance, through a combination of provisions, including the expansion of Medicaid eligibility, the establishment of “insurance exchanges,” where individuals who do not receive affordable coverage through an employer can purchase health insurance, subsidies to assist individuals in purchasing health insurance, and the requirement that health insurers accept all applicants for coverage without exclusions for preexisting conditions or discrimination based on gender.

However, the mere expansion of access does not ensure that gains will be equitably distributed. Indeed, the unexpected consequence of the Supreme Court's recent decision on the constitutionality of the Affordable Care Act may be to widen, not narrow, disparities in access. In the decision, the Court held that the federal government may not penalize states that decline to participate in the Medicaid expansion by revoking funding for the existing Medicaid programs in those states. In the aftermath of the decision, a number of governors have indicated that their states will not participate in the Medicaid expansion, even though (1) the federal government will pay 100% of the costs from 2014-2016, scaling down to 90% in 2020, and (2) estimates indicate that states will actually save money by participating in the Medicaid expansion due to lower premiums for state employees and reduced expenditures for uncompensated care for uninsured individuals. In states that decline to participate in the Medicaid expansion, the result will be disastrous from a social justice perspective--the sole means by which individuals under 133% of the federal poverty level were to receive coverage under the ACA was via the Medicaid expansion. Although individuals with income from 100-400% of the poverty level ($23,050-$92,200 for a family of four in 2012) are eligible for subsidies (thus theoretically enabling those with income from 100-133% of the poverty level to purchase insurance on the exchanges), persons with income below 100% of the poverty level are ineligible for subsidies, with the certain result being that they will be unable to afford coverage via the exchanges.

Moreover, even in states that do participate in the Medicaid expansion, it is quite likely that the new system will be challenging for individuals to navigate in its early stages, which places already vulnerable groups at particular risk of being left behind. In recognition that procedural barriers such as cumbersome application processes and difficult and frequent eligibility determinations both create and worsen disparities in access to coverage, the Affordable Care Act contains provisions intended to facilitate access, including proposed rules to simplify eligibility rules for Medicaid and the Children's Health Insurance Program. The proposed rules would require that individuals be permitted to apply based on a simple determination of Modified Adjusted Gross Income before being required to be screened based on other eligibility categories (e.g., disability); would allow states to rely primarily on electronic data where available and permit states flexibility in determining what sources to rely upon; and critically, would allow renewal eligibility determinations no more frequently than every twelve months unless an individual reports a change in eligibility status. In addition, such renewal determinations would be based first on existing information rather than requiring a new application. These provisions are a promising start to addressing inequities in access, though it remains to be seen how they will be implemented in practice.

This brief discussion of the ACA would not be complete without addressing the impact of the most controversial provision of the ACA on disparities: the coercive legal mechanism known as the “individual mandate” requiring that all individuals purchase health insurance and the corresponding financial penalty (or, as the Supreme Court recently found, “tax”) for noncompliance. The mandate will not directly impact the poorest individuals because virtually all people who are eligible for Medicaid will be exempt from the penalty/tax on financial hardship grounds. However, many millions of Americans will be subject to the penalty/tax for failure to purchase insurance, which is a strong reason to pay particular attention to ensure that the law does not have the effect of worsening already existing health inequities if, for example, certain population segments fail to enroll in an insurance plan due to procedural, cultural, social, education, literacy, or other barriers.

In addition to enrollment barriers, the subsidies and penalties in connection with the individual mandate merit special discussion because of their relevance to disparities. The ACA and proposed rules thereto provide for subsidies for eligible individuals and families to offset the cost of purchasing insurance and are expected to apply to approximately 20 million individuals. The subsidies will undoubtedly help individuals afford insurance, but the mere existence of subsidies does not, on its face, make insurance affordable. A recent Treasury Department Fact Sheet, explaining how the subsidies will operate, gives the example of a family of four with a household income of $50,000. Because the subsidy amount is based on the “benchmark” plan and is not reduced if an individual chooses a less expensive plan, the obvious incentive for lower-income individuals without significant health problems is to choose the least expensive plan and thereby incur lower out-of-pocket costs if no health problems develop. In the example of the family of four with $50,000 household income, choosing the least expensive plan saves the family $1,500 for a year of coverage. Of course, if a family member develops extensive health problems, this $1,500 savings could quickly be outweighed by the out-of-pocket costs the family will incur, notwithstanding the ACA-imposed limits on such costs.

This example raises the inevitable tension in any health equity analysis--What is “good enough,” and is it equitable that the new system will permit the wealthy to access more comprehensive coverage than lower-income individuals? And, does more comprehensive coverage equal better health? While the probable distinction in coverage levels among socioeconomic groups does have marginally negative health equity implications, there was never a politically feasible way in which to guarantee uniform coverage for persons of all socioeconomic groups--i.e., “Medicare for all.”

In all, the evidence thus far is that health equity will be greatly furthered by the access mechanisms in the ACA, but only in states that participate in the Medicaid expansion. The CBO originally estimated that the Affordable Care Act will lead to an additional 32 million individuals obtaining health insurance, fully half of which will come via the Medicaid expansion. In view of the Court's decision on the ACA, the CBO has revised its estimate to allow for the likelihood that at least some states will decline to participate in the Medicaid expansion--in the new report, the CBO estimates that 29 million (rather than 32 million) will gain coverage under the ACA. Given the disparities in coverage prior to its passage, the result would be an enormous improvement. However, the Medicaid expansion is in jeopardy in many states, and it now appears that there will almost certainly be a worsening in disparities in a number of states as middle-income individuals gain access to affordable insurance while the poorest are completely left out. That some state officials would not only countenance but actively seek this result (even in the face of reputable estimates that including the poor would save states money) is a strong argument in support of the necessity of the direct regulatory approach of the ACA via the mandate/tax (or a similarly coercive legal approach), in which discretion for states to create such a social justice disaster is removed.

For example, although a number of states are declining to establish exchanges, the ACA better protected middle-income individuals by including a provision for the federal government to create exchanges in states that fail to do so. Thus, for those individuals, their state government's resistance to the ACA will not materially impact their ability to access affordable insurance. In addition, the importance of the direct regulatory approach (i.e., using the mandate/tax to create a large and heterogeneous risk pool to combat adverse selection in the insurance market) to expanding access to insurance cannot be overstated, as the mandate/tax is demonstrably the only effective mechanism for materially increasing coverage short of a single-payer system. The status quo has failed to provide coverage for over 50 million individuals and, in many cases, has provided outrageously inadequate coverage. HP 2020's lack of acknowledgment of the reality of the health care system is puzzling because even in an apolitical strategy there can be no meaning to establishing a target of 100% insurance coverage without a realistic means of achieving that goal.

ii. Access to Services: The Content of Benefits

Another point relevant to disparities reduction via the ACA is that access to coverage is only meaningful if the coverage includes necessary benefits. It would be extremely inequitable to require the purchase of insurance without assurance that the insurance would provide meaningful coverage. In examining the ACA's ability to ensure that the coverage is adequate, a starting point must be the essential health benefits package (EHB) mandated by the Affordable Care Act. Under the ACA, essentially all insurance plans must comply with a number of requirements, including the provision of specified preventive services with no cost-sharing and coverage (with or without cost-sharing) of certain essential benefits. Coverage of preventive services without co-pays is critical to reducing access disparities because evidence has demonstrated that low-income individuals are more likely than higher income persons to forego essential preventive services when co-pays are required. Importantly, ACA regulations requiring essentially all private plans already in existence to cover preventive services recommended by the U.S. Preventive Task Force have already come into effect, which should be most beneficial to lower income individuals given their higher price-sensitivity in regard to health services.

The precise benefits in the EHB are subject to further clarification by regulation, but a report by the IOM conducted at the request of HHS, is revealing in its approach. The IOM explicitly seeks to balance cost and access, recommending that the EHB be adjusted so that the actuarial average for the benchmark “silver” plan in the exchanges will be equivalent to the actual premium that small employers would have paid in 2014 for a typical plan. While a cost-sensitive approach is both necessary and sensible, the particular IOM approach presents significant problems when viewed through a health equity lens. First, the tying of the EHB to the coverage decisions of small employers, whose incentives are markedly different from the (presumed) intentions of the government, is, arguably, illogical. As health care costs rise, as current projections indicate they will, small employers (who generally lack the ability to self-insure, as most large employers choose to do) will likely gravitate toward the lowest-cost plan options within the limits of the ACA. This phenomenon creates a race to the bottom in which cost is prioritized over care, with little thought or reference given to structuring EHB to maximize health outcomes. When cost is the reference point, benefits will necessarily be adjusted to meet cost concerns.

To clarify its views regarding the EHB package, HHS recently issued a bulletin describing its intended approach to the EHB, in which it largely adopted recommendations by the IOM. However, in the bulletin, HHS also announced its intention to permit states, rather than the federal government, to determine the precise composition of the EHB package within statutory guidelines, using as a reference point one of four types of plans, including “the largest plan by enrollment in any of the three largest small group insurance products in the State's small group market.” While the health equity concerns in this approach are obvious (i.e., the strong possibility of varying coverage by state, thereby creating disparities in access), the statutory framework of the EHB within the ACA itself is intended to provide at least a minimum threshold for acceptable coverage. In addition, the proposal by HHS to give states greater flexibility could allow for experimentation by states in increasing access to cost-effective therapies--that is, if certain states mandate coverage of certain services and can demonstrate the cost-effectiveness of doing so, there is potential for other states to follow suit. More likely, however, is that more conservative states (which tend to have higher rates of uninsured residents and worse health outcomes) will require relatively fewer services to be covered within the EHB package, while more progressive states will require greater coverage, thereby worsening health disparities. Even worse, there will be a strong incentive for states to engage in a race to the bottom to lure businesses to states where there are relatively fewer regulatory requirements.

Certainly, cost containment is a critical element of any health system. Resources are finite, and it is illogical to allocate them in a way that fails to account for varying levels of effectiveness among preventive services and therapeutic treatments. However, the use of cost as the primary reference point--that is, the approach recommended by the IOM and largely adopted by HHS--is not the only viable course for balancing cost and access. For example, in Great Britain the NHS works within cost constraints by using a combined cost-effectiveness index including utilization of the “quality adjusted life years measurement” (QALY) to determine what benefits will be covered, thereby prioritizing effectiveness of treatment and maximizing health return on investment. While the NHS system sparks cries of “rationing” and “death panels” in some quarters, it at least avoids the IOM recommendation for arbitrary pegging of the EHB to small employer coverage. Moreover, the British approach to essential benefits explicitly considers and promotes health equity among its entire population, considering it an obligation of the NHS to implement policies that will reduce disparities and thereby further health equity.

Of course, the comparison between the U.S. and British systems is necessarily imprecise in light of certain key distinctions, including the fact that the poor in the U.S. are essentially “cordoned off” into their own plan (Medicaid), which creates different political realities in considering what the benefits package should be. Nonetheless, the British system is a strong example of a value-based system in which available benefits are distributed based on the “return on health” they deliver.

Notwithstanding its shortcomings, Does the EHB package in the ACA help or hurt health equity? As with the insurance mandate and the Medicaid expansion, it is markedly better than the status quo, and to that end, it furthers health equity. However, the monitoring components included in the ACA will be critical to determining the precise impact on the reduction in disparities, particularly in regard to how coverage for certain diseases and ailments (e.g., diabetes) can disproportionately affect certain population subgroups. In that regard, the final definition of “medical necessity” within the ACA will have health equity implications. Moreover, as Gostin et al., have observed, disparities are the result of many factors unrelated to the provision of health care, and the Affordable Care Act--or any legislation based solely on expanding health insurance and traditional health services--cannot resolve them. Indeed, Gostin observes that, “[a]side from increasing health care access and surveillance, [ACA] does little to fund or mandate decisive interventions to reduce health inequalities based on race, income, or other factors” and advocates further development of disparity reduction initiatives, both in the traditional health sector and in addressing the broader socioeconomic and environmental determinants of health.

Even with its shortcomings and the uncertainty regarding implementation following the Supreme Court's decision on its constitutionality, the passage of the ACA was a milestone in U.S. history. Moreover, in addition to furthering health equity, the ACA will likely change the discourse around the provision of health care on a permanent basis. Much as Medicare is popularly considered a right (or, an “entitlement”) for U.S. seniors, so too might health insurance for all Americans now be viewed. And if that is the case, the “right to health” could become significantly more relevant to U.S. domestic policy. In the area of Access, the Affordable Care Act--and in particular the coercive legal mechanisms of the individual mandate and regulation of insurance company conduct and policy content--is a critical legal component toward achieving the HP 2020 objectives, and, more broadly, toward achieving health equity.

In light of the critical importance of the ACA toward achieving the HP 2020 goal of achieving universal health insurance coverage, HP 2020's lack of endorsement for a realistic way of expanding access (namely, endorsement of the ACA) arguably represents a failure of its stated objective of incorporating health equity as an overarching goal. If the nation's “master blueprint for health” consists of nothing more than targets without acknowledgment of the distributive consequences of policy choices, it is unlikely that the policies with the strongest potential of reducing disparities within an overall population health framework will be implemented. This approach was tried in HP 2010 and no reduction in disparities was observed--the objective was to increase the proportion of persons with health insurance, but no guidance was offered on how to do so. Nothing happened. To render its recommendations meaningful for both population health improvement and disparities reduction, HP 2020 should do as it does in less politically controversial areas (tobacco reduction, for instance), and urge the adoption of specific legislation that would result in the desired increase in Access, particularly where a coercive legal approach is the only realistic means of achieving the Access targets.

2. Environmental Health

Environmental Health (EH) is an HP 2020 topic that has particular relevance to health equity and is well-suited to coercive legal interventions. In economic terms, environmental effects are an oft-cited example of “negative externalities”--that is, that pure free-market mechanisms do not properly allocate the costs and benefits of actions with an environmental impact. The classic example is a factory that dumps its waste into a river, shifting environmental and financial costs of its business activities onto the general population. Thus, in most instances, coercive regulatory interventions are required in order to achieve optimal environmental health outcomes, and HP 2020's failure to include such interventions within its EH objectives is a missed opportunity.

HP 2020 uses the WHO definition of environmental health: “all the physical, chemical, and biological factors external to a person, and all the related behaviors.” Environmental health involves “preventing or controlling disease, injury, and disability related to the interactions between people and their environment.” There are six key themes of the EH topic in HP 2020, all of which are well-suited to coercive legal interventions. Indeed, existing legal mechanisms already address these topics to some degree, which raises the issue of the adequacy of such mechanisms given that current environmental health levels are both inadequate overall and within population groups. There are significant disparities in environmental health among racial and ethnic groups, as well as among socioeconomic levels. In addition, there is evidence that poor environmental health is linked to poor health outcomes, particularly in children. Thus, successful interventions seeking to reduce disparities in environmental health would have a strongly positive impact on health equity.

The HP 2020 outdoor air quality objective is an example that demonstrates that coercive legal mechanisms must be a key element of a successful environmental health strategy. First, in order to achieve the objective of fewer bad air quality days, an obvious legal mechanism would be the imposition of more significant statutory penalties for large-scale carbon emitters. There is currently no “carbon tax” in the United States. It is here that the combination of market mechanisms and coercive regulatory authority in a “cap and trade” system might be quite useful. A proposal by the Center for American Progress is illustrative: in essence, total emissions would be capped, but companies could buy and sell emissions permits (auctioned off by the government) among themselves, thereby maintaining some flexibility.

There are, however, two obvious health equity concerns in any such proposal: the risk that energy prices would increase, which would disproportionately affect lower-income individuals, and the risk that pollution would become more concentrated in relatively underprivileged regions of the country. The Center's proposal effectively addresses the first concern by advocating that nearly half of the proceeds of the permit auctions be allocated to help offset increased energy costs for low and middle income Americans, but it does not address the pollution concentration risk (perhaps on the theory that the enormous projected reduction in overall carbon emissions over the longer term would outweigh any concentration concerns). A more detailed analysis of environmental regulations is beyond the scope of this paper; carbon emissions are an example of the way in which coercive legal mechanisms are vital to achievement of the HP 2020 environmental goals and to the furtherance of health equity, yet HP 2020 takes no position on achieving cleaner air beyond the enforcement of existing laws.

Other examples of the effectiveness of coercive legal mechanisms at achieving environmental health goals are numerous, but two deserve particular mention in light of their health equity implications. First, in regard to the EH objective of increasing the use of alternative modes of transportation for work, the experience of central London is instructive. Voluntary policies urging people to drive less and use public transportation to navigate Central London were unsuccessful. Thus, in 2003, the City of London implemented a “congestion charge” with the objective of decreasing car traffic and increasing use of public transportation. The tax was successful in that the City has seen a 6% increase in bus traffic, and all funds raised (nearly $240 million) must be used to improve transport in London. However, no data is available on the distribution of the increase in bus traffic across population groups, though one might reasonably infer that those individuals who are most price-sensitive (i.e., lower-income persons) would be the most likely to switch to public transportation following the imposition of the congestion charge. Thus, given that longer commute times (with negative quality of life and health effects) could result from the switch to public transportation, and given that the congestion charge would disproportionately affect lower-income individuals, the congestion charge may also be an example of an instance in which coercive legal mechanisms without adequate safeguards could worsen health equity. A better coercive legal mechanism, though likely more difficult to administer, could be to have a sliding scale of charges based on income, to ensure that incentives were relatively similar across socioeconomic groups. Regardless, HP 2020's failure to recognize the varying distributive consequences of policies around alternative transportation calls into question how thoroughly the principles of health equity have permeated the formulation of its objectives.

Another example of an EH objective for which a coercive legal solution is essential to achieving health equity is EH-15, which seeks to increase the number of single family homes built with radon reducing features, particularly in high-radon-potential areas. Principles of health equity require that persons with fewer resources not be subject to higher levels of environmental toxins like radon; however, free market mechanisms without a minimum level of regulation would almost certainly lead to an inequitable outcome. To advance an equitable environmental health framework, the use of the coercive legal mechanism of a building code requiring an adequate level of radon protection is required--indeed, twenty-five states already have either statewide or local building codes requiring a minimum level of radon protection. HP 2020 sets a target of 100% of new single family home construction in high-radon-potential areas having radon reducing features (an increase from the current estimate of 28.6%), but the Project takes no position as to how that target could be achieved. To truly advance health equity, the Project should acknowledge that the environmental health benefits of radon reducing features will only accrue to the entire population through the use of a broadly applicable coercive legal mechanism like a building code and advocate for passage of state or federal legislation reflecting that reality.

Environmental health is an HP 2020 goal whose achievement would significantly improve health equity, particularly because it is already vulnerable persons (who are disproportionately minority and/or of lower SES) who suffer most from a lack of environmental health. Moreover, evidence and analysis of voluntary or pure free market mechanisms strongly indicate that it is only through the use of coercive regulatory mechanisms that disparities in environmental health can realistically be improved. Thus, HP 2020 does not fully incorporate health equity in its EH objectives when it fails to acknowledge that legal mechanisms are in many instances the only realistic means of reducing disparities in environmental health.

3. Heart Disease and Stroke

Heart Disease and Stroke (HDS) is only one example of the disease-specific HP 2020 goals, but it is one where coercive legal mechanisms show strong promise for aiding the progress toward meeting the objectives because certain preventive aspects of HDS can be effectively addressed through regulatory measures. HDS is an enormous burden on the health of the U.S. population, and disparities are rampant. Heart disease is the leading cause of death in the U.S., and stroke is the third leading cause. The estimated economic burden of HDS is $500 billion annually. HDS is strongly associated with certain modifiable risk factors: high blood pressure, high cholesterol, cigarette smoking, diabetes, poor diet and physical inactivity, and overweight and obesity. A critical point is the importance of early intervention--many of these factors build over time, doing lasting damage to a person's system that can only be partially undone by modifications later in life. The necessity of early stage intervention also strengthens the case for coercive legal mechanisms because paternalism concerns are less significant in the context of protecting the interests of children, though in some instances perceived infringement on parental rights could be a political concern.

HP 2020 observes that significant reduction in morbidity and mortality associated with heart disease could be achieved if “major improvements were made across the U.S. population in diet and physical activity, control of high blood pressure and cholesterol, smoking cessation, and appropriate aspirin use.” The importance of HDS interventions is reflected in the IOM's selection of two HDS objectives (reduction of coronary heart disease deaths and reduction in the percentage of the population with hypertension) in its leading health indicators report.

Disparities in HDS are significant and well-documented. The most recent CDC report on the prevalence of coronary heart disease (CHD) found that although overall prevalence of CHD declined from 6.7% in 2006 to 6.0% in 2010, significant disparities exist on the basis of race and ethnicity, gender, age, education, and state of residence. For example, CHD prevalence was highest among American Indians/Alaska Natives (11.6%), followed by blacks (6.5%), Hispanics (6.1%), whites (5.8%), and Asians or Native Hawaiians/Other Pacific Islanders (3.9%).

As noted above, certain modifiable risk factors are strong contributors to and predictors of HDS. For that reason, HP 2020's HDS section sets objectives for improvements in many of those areas, including cholesterol. Cholesterol is an HDS objective where a coercive regulatory intervention would be especially effective. For example, artificial trans fat is a known contributor to HDS, as it both raises LDL and lowers HDL cholesterol. Trans fat (primarily contained in partially hydrogenated oils) is a uniquely harmful man-made substance that is used to lower costs and extend the shelf-life of processed foods. A study published in the New England Journal of Medicine found that trans fat is demonstrably harmful even in amounts as small as two grams per day:

On a per-calorie basis, trans fats appear to increase the risk of CHD more than any other macronutrient, conferring a substantially increased risk at low levels of consumption (1 to 3 percent of total energy intake). In a meta-analysis of four prospective cohort studies involving nearly 140,000 subjects, including updated analyses from the two largest studies, a 2 percent increase in energy intake from trans fatty acids was associated with a 23 percent increase in the incidence of CHD.

Some progressive jurisdictions such as New York City have banned the use of artificial trans fat in restaurants and prepared foods on health grounds, and the estimated health benefits are significant, including projected elimination of 500 annual deaths in New York attributed to trans fat. Thus, in light of the improvement in HDS that could result from elimination of the consumption of trans fat (by some estimates as many as 228,000 heart attacks per year are caused by trans fat), an effective implementation mechanism is imperative.

Currently, the FDA requires the “Nutrition Facts” panel of packaged foods to display trans fat content, though there are no limits on the amount of trans fat that a particular food can contain. The food industry has taken steps to limit the amount of trans fat in both fast food and in packaged food, and the ACA will require many chain restaurants and operators of vending machines to post nutritional content, but it is here that the limits of these essentially voluntary and/or informational policy measures become clear, raising health equity concerns. Although trends in removal or reduction of trans fat in packaged foods are encouraging, there is simply no way to know whether restaurants not subject to menu labeling requirements are reducing or eliminating their use of trans fat unless restaurants choose to disclose that information. It is generally accepted in public health policy that wealthier and more educated consumers may demand such information and have the resources to patronize only establishments that meet their demands, whereas consumers with fewer resources may have less ability to discern whether trans fat is being used and few alternatives in the event that it is. Moreover, where voluntary initiatives were attempted they resulted in essentially no impact on the rates of trans fat consumption because restaurants made no changes to their practices in the absence of regulation.

Here the particular benefits of a coercive legal mechanism, such as a trans fat ban, become apparent, especially because evidence shows that trans fat bans do not lead to increased prices for food or increased costs for restaurants. A ban on the use of artificial trans fat is the only feasible mechanism to “level the playing field” between socioeconomic groups in regard to trans fat consumption. Unfortunately from a disparities perspective, a review of jurisdictions that have enacted bans on the use of trans fat reveals that it is largely left-leaning, healthier states that have done so, which may lead to even greater disparities between those states and (generally more conservative) states with the highest prevalence of heart disease. An FDA ban on the use of trans fat would be a highly cost-effective way to improve population heart health and health equity, particularly because vulnerable populations would benefit from the intervention to a greater degree than advantaged groups. Thus, HP 2020's lack of advocacy for a specific, demonstrably effective coercive legal mechanism such as a trans fat ban in order to further its cholesterol reduction target represents another missed opportunity to fully incorporate the principles of health equity.

Another example of the essential nature of coercive legal mechanisms in improving HDS while furthering health equity is in the area of tobacco control. The U.S. Surgeon General Report on the consequences of involuntary exposure to tobacco smoke observes that there is no safe level of exposure to secondhand smoke and that even short exposures to secondhand smoke can increase HDS risk. Thus, in light of the significant risks associated with secondhand smoke, the importance of health equity in any proposed solution is clear. Here, the coercive legal mechanism of a ban on smoking in public spaces is an example of a particularly successful intervention, for a few reasons: first, by virtue of being broadly applicable, the ban protects the entire population, not just those with the most resources to demand smoke-free spaces; second, by applying to all work spaces, it protects many individuals (e.g., service industry workers in bars and restaurants) who would otherwise lack bargaining power to secure a smoke-free workspace; and third, in the case of New York City, which has extended its ban to outdoor public spaces such as parks and beaches, the ban guarantees smoke-free outdoor space to all socioeconomic groups, not just those who can afford private homes with yards. The positive health effects of smoking bans have been demonstrated by evidence showing a reduction in hospital admissions for chest pain and heart attacks in jurisdictions where bans have been implemented.

Interestingly, perhaps because tobacco control laws are more politically palatable than some of the legal mechanisms discussed above, HP 2020 does explicitly advocate for an increase in tobacco control laws, including smoking bans in public spaces. While some advocacy for effective legal mechanisms is better than none, the Project arguably does health equity a disservice by advocating only for those legal mechanisms that are either already in place (as in the case of enforcement of existing environmental laws) or are not politically divisive (as for tobacco control). True advancement of health equity requires an impartial assessment of the distributive consequences of policy options and advocacy for effective coercive legal mechanisms, even where political feasibility of immediate implementation is doubtful.

4. Nutrition and Weight Status

Perhaps no issue in public health is as hotly debated as what HP 2020 terms “Nutrition and Weight Status” (NWS), which encompasses both adequate nutrition and the obesity epidemic. Disparities in NWS, particularly with regard to obesity rates, are stark, both among racial and ethnic groups and among socioeconomic groups. Current data indicate dramatically different obesity prevalence across ethnic groups, ranging from 49.5% for non-Hispanic blacks, who have the highest age-adjusted rates of obesity, 39.1% for Hispanics, and 34.3% for non-Hispanic whites. Regional, gender, and socioeconomic disparities exist as well. As with heart disease, there are some coercive legal interventions that could positively affect both population health and health equity, but HP 2020 does not suggest them. Interestingly, HP 2020 does advocate for a very few legal mechanisms to improve NWS, but only in regard to children, and only as affects food offerings at schools. While advocacy of politically realistic options is laudable, clear opportunities exist for further promotion of effective legal mechanisms.

For purposes of this paper, a threshold question is the appropriateness and effectiveness of government intervention in the food market in pursuit of dietary changes (with the ultimate goal of improving NWS), whether through regulations mandating content of food, taxation on certain disfavored foods, or outright bans on the sale of certain foods. Much has been written on the tension between paternalism and public health, and on the effectiveness of government intervention in general on NWS, particularly in regard to the obesity epidemic. For example, Gostin observes that law at every level of government directly and indirectly affects the risk factors for overweight and obesity, although the “concerted use of legal-based strategies as an integral component of obesity prevention and control efforts is nascent.” This paper does not attempt to prescribe a particular approach for improving NWS as a whole, or for combating obesity. However, evidence supports the effectiveness of certain coercive legal mechanisms in improving NWS, and HP 2020's lack of advocacy for those mechanisms to achieve a number of its NWS objectives is a missed opportunity.

Among its many NWS objectives, HP 2020 sets target reductions for intake of sodium, saturated fats, solid fats, and added sugars. The importance of these indicators was affirmed by the IOM, which selected reduction of the consumption of solid fats and added sugars as a critical indicator of population health. The Project supplies no suggestions for how the reductions should be achieved, but there are certain coercive regulatory mechanisms that can be utilized in achieving those goals without worsening disparities or compromising health equity (as a purely voluntary initiative might). For example, Denmark has recently implemented a tax on products containing saturated fat above a specified percentage, and other European countries have implemented or considered similar initiatives. In the U.S., various proposals have been made in recent years for significant taxes on calorically sweetened beverages, though none have been enacted. Although it is too soon to measure the impact of the Danish tax, evidence and economic theory both suggest that the tax will have its intended effect of reducing saturated fat consumption. Indeed, WHO has recognized that taxation can be an effective mechanism to influence consumer choice on food consumption. Moreover, the same factors that lead to the reduction in saturated fat consumption also contribute to the likelihood that greater reductions will be seen among lower income persons than higher income individuals--thus, by narrowing disparities in saturated fat consumption, the tax would further health equity within a framework of overall population health improvement.

While promising, taxation of unhealthy foods does have problems from a health equity standpoint because food taxes are inherently regressive. Thus, many policy analysts suggest that revenues from taxation of unhealthy foods be used to support other health-promoting measures such as fruit and vegetable subsidies and/or broader changes to agricultural policy. Regardless of the possible shortcomings of taxation, principles of health equity require that any policy initiative designed to achieve NWS targets in regard to solid fats, sugars, and sodium be designed to, at minimum, not worsen disparities in consumption of harmful additives and, to the extent possible, reduce such disparities. In the absence of any evidence that voluntary mechanisms will achieve its NWS objective for solid fats, sugars, and sodium, particularly without worsening disparities, HP 2020 should take the opportunity to advocate for additional taxation of foods not meeting nutritional targets.

In addition to taxation, coercive regulatory mechanisms should be incorporated as part of a successful NWS strategy. For example, in regard to sodium reduction, the status quo is unsatisfactory--the only policies in place are early-stage voluntary initiatives. One such initiative, the National Salt Reduction Initiative (NSRI), is a coalition of local and state health authorities and health organizations collaborating with food producers and restaurants to seek a 20% reduction in U.S. salt intake over five years. The coalition projects that the effort, if successful, will save “tens of thousands of lives each year and billions of dollars in health care costs.” However, there is no evidence that the project has had any success to date.

Moreover, and aside from the lack of evidence that voluntary initiatives such as the NSRI can be successful (at least without the threat of regulation if targets are not achieved), health equity concerns exist in the particular design of the NSRI. Among the participating restaurants and food producers, it is unclear which of their food products will be targeted. For packaged foods, the 20% reduction target is not uniform across food categories, which creates the potential for worsening disparities if foods preferred by certain population groups are targeted for reduction in greater degree than those preferred by others, or if foods that are unaffordable to lower income persons are targeted for more significant reductions than less expensive foods. Again, the distinction between improving overall population health and reducing disparities becomes apparent, though it is worth noting that the current voluntary approach is not out of line with prevailing international efforts. However, from a health equity standpoint, a regulatory approach shows more promise in achieving sodium reduction targets because a regulatory initiative could preserve some manufacturer flexibility while still ensuring either that all categories of food are equally targeted for sodium reduction or, at a minimum, that manufacturers do not use demographic data to target reductions primarily for foods that appeal more to already healthier populations.

Comparing regulation of food content versus taxation of unhealthy foods, the regulatory approach is likely to further health equity to a higher degree. This is because the regulatory approach would, in theory, benefit all population groups to a more equal degree, and indeed, those groups that consume more packaged foods--typically groups with lower health status--would benefit to a greater degree than already healthier persons. However, either approach is probably superior to a purely voluntary approach, which, for the reasons discussed above, presents significant health equity concerns. Although the political problems with advocating a regulatory approach in this context are obvious, a meaningful discussion of the feasibility of achieving HP 2020's NWS targets must involve a discussion of the effectiveness of various legal interventions and, particularly, their impact on health equity. Indeed, it is because HP 2020 explicitly incorporates health equity as one of its four overarching goals that it is obligated to prefer those policy options that would most further health equity, and the failure to do so, both in NWS and throughout, diminishes the likelihood that HP 2020 will have a meaningful impact on disparities reduction and health equity.