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Each week, Health Affairs Editor-in-Chief Alan Weil brings you in-depth conversations with leading researchers and influencers shaping the big ideas in health policy and the health care industry.
A Health Podyssey goes beyond the pages of the health policy journal Health Affairs to tell stories behind the research and share policy implications. Learn how academics and economists frame their research questions and journey to the intersection of health, health care, and policy. Health policy nerds rejoice! This podcast is for you.
00;00;00;02 - 00;00;33;07
Alan Weil
Hello and welcome to “A Health Podyssey”. I'm your host, Alan Weil. As the COVID-19 pandemic emerged, various local, state and federal agencies took steps designed to protect the public's health. These ranged from the 42 states in 2020 that issued statewide stay at home orders and the 28 states that issued statewide mask wearing mandates, to a variety of eviction moratoria, vaccination requirements, orders, closing schools and businesses and otherwise.
00;00;33;20 - 00;00;58;19
Alan Weil
Now, many of these actions, particularly over time, became quite controversial, even as the evidence also grew that many of them saved lives in the rapidly emerging pandemic. Were we prepared with the legal infrastructure we needed to protect the public's health? And how do we make sure we are prepared for the next crisis, whatever form it may take? These are the topics of today's episode of “A Health Podyssey”.
00;00;59;12 - 00;01;31;16
Alan Weil
I'm here with Michelle Mello, professor of law at Stanford Law School and professor of medicine in the Center for Health Policy at the Stanford University School of Medicine. Dr. Mello and Lawrence Gostin published a paper in the March 2023 issue of Health Affairs assessing public health laws during the COVID-19 pandemic. They find that the public health laws in place as the pandemic emerged, which were framed in the wake of the September 11th terrorist attacks and subsequent anthrax attacks, were poorly suited to address multi-year pandemics like COVID.
00;01;32;01 - 00;01;43;02
Alan Weil
They argue for a reconfiguration of public health law to better prepare us for the future. We'll discuss these ideas in today's episode. Dr. Mello, welcome to the program.
00;01;44;02 - 00;01;44;29
Dr. Michelle Mello
Thanks for having me.
00;01;45;22 - 00;02;04;25
Alan Weil
Well, you know, I'm a lawyer, too, so I love conversations like this. And I think it is an area where people in health policy often don't pay much attention until it's right in front of them. And this is an issue that really is. Let's start with the basics. Your paper talks about public health law. Maybe that's not even a term
00;02;04;25 - 00;02;10;03
Alan Weil
some of our listeners are familiar with. So what is encompassed in the term public health law?
00;02;11;10 - 00;02;39;10
Dr. Michelle Mello
When we talk about public health law, we're talking about the body of law, constitutional, statutory and regulatory that gives officials power to act in all kinds of ways to promote public health and safety and welfare. And there are a broad net of laws that create everyday powers to take care of us, for example, to regulate tobacco or promote healthy neighborhoods.
00;02;39;28 - 00;02;57;27
Dr. Michelle Mello
And then there is a special suite of statutes, meaning laws that come from legislatures that comes into effect when an emergency is declared by an executive official. And, of course, it's those powers that have affected us all the most over the last three years during the COVID-19 pandemic.
00;02;59;04 - 00;03;30;26
Alan Weil
So emergency powers, which sort of by definition have to be somewhat general because you don't know exactly what the emergency will be, also become this sort of flashpoint for how much authority should these various officials have. Before we go further in public health law, I think it's really also important to talk about the different kinds of authority and the different roles that localities, states and the federal government have when it comes to public health.
00;03;31;11 - 00;03;46;09
Alan Weil
I don't know that we have to go through all the detail, but certainly this combination, and sometimes somewhat overlapping responsibilities, seems really important in thinking about the legal structure. Can you tell me a little more about that?
00;03;46;16 - 00;04;16;06
Dr. Michelle Mello
Well, Americans will be familiar with the fact that much of the law that touches us every day comes from our state. And then there are also certain areas where the federal government is constitutionally allowed to regulate. But our constitutional design sets up states as the primary focus of public health powers. Our 10th Amendment says that any power that is not expressly given to the federal government is reserved to the states or the people.
00;04;16;12 - 00;04;43;06
Dr. Michelle Mello
And so what that means as a practical matter for public health is it's always been a matter of state law, or where a state has chosen to make a delegation downwards, a matter of local law. And then there are certain areas outlined in the Constitution that the federal government gets to act in if it chooses, things like issues that touch business, commerce across the state, things that involve people and goods and animals coming across national borders,
00;04;43;22 - 00;05;08;24
Dr. Michelle Mello
things that involve spending--Congress has a sort of power of the purse, when it spends money, it can attach conditions--and a few other areas where the federal government has a lot of power. But as we've seen, state and local governments are where it's at, particularly for emergencies. And that's again a matter of our constitutional design. It's also just a practical matter because they will always be the ones on the front lines of an infectious disease outbreak.
00;05;09;17 - 00;05;35;04
Alan Weil
And we certainly saw the different approaches different states have taken and will continue to take. And as you note, that's just part of our system of governance. In the paper, you explain that the laws that were in place as the COVID pandemic emerged came out of a modernization effort after the September 11, 2001 attacks and the anthrax attacks as well.
00;05;36;11 - 00;05;51;26
Alan Weil
Can you give us a sense of sort of the pre 911 picture? But mostly what we put in place because of the events around 911? And then we can talk about whether that was what we needed for this new situation we faced.
00;05;52;27 - 00;06;19;12
Dr. Michelle Mello
So maybe some of our listeners won't be old enough to remember the 911 attacks. Others will. And if you are old enough like me, you remember that one of the things that happened shortly after the attacks was a bunch of scares around anthrax that was delivered to post offices and members of Congress’s office. And all of a sudden, not just terrorism of the World Trade Center kind, but bioterrorism was on everybody's minds.
00;06;19;12 - 00;06;43;15
Dr. Michelle Mello
What's going to happen? Are we ready? And when legal scholars looked around at the laws on the books, the answer was, no, we are not ready. And we're not ready for two reasons. One is that the laws that we have are so old that it is as though the last hundred years of procedural due process litigation never happened because it hadn't at the time that those laws were adopted.
00;06;43;25 - 00;07;09;19
Dr. Michelle Mello
And what that means is that the laws didn't give individuals the protections that courts then recognized for when they are isolated or quarantined. You know, they're entitled to a hearing and all this stuff that came out of the 1960s. And the laws didn't recognize any of that. So they were probably unconstitutional. And the last thing you want in the midst of an outbreak of bioterrorism is a bunch of people taking you to court and having no difficulty convincing courts
00;07;09;19 - 00;07;36;16
Dr. Michelle Mello
the whole statute that confined you was unlawful, and therefore you have no power at all. So that was one problem. The second problem is that they didn't really go far enough to empower officials to do the things that might be needed. Again, thinking about what would be on lawmakers minds when these laws were passed, you know, it was little infectious disease outbreaks that were just by dint of the fact that nobody traveled very far, very fast, always going to be pretty local.
00;07;37;04 - 00;07;59;05
Dr. Michelle Mello
Bioterrorism wasn't a thing. You know, the idea of global threats or pandemics, not a thing. So there were lots of emergency responses that the laws never contemplated. And again, if you're a forward thinking lawmaker, you don't want to be in a situation where you might be able to do the thing that is necessary for you to do right now to protect people, but you might not.
00;07;59;13 - 00;08;18;08
Dr. Michelle Mello
And it's going to be up to a court to decide. So what had to be done was fixing both of those problems. This modernization process did that pretty well. Almost all the states were able to update their laws to do those two things. But again, cast your mind back. What were people thinking about at that time? It was bioterrorist attacks.
00;08;18;12 - 00;08;45;15
Dr. Michelle Mello
It was not a multi-year global pandemic. And so some of the things that turned out to be important to public health response this time around, like travel restrictions, like stay at home orders, like vaccine and mask wearing mandates, were not on the radar screen. And so we're back in that situation where policymakers are thinking, I might have the authority to do this, but I might not, and I'd rather not find that out in court.
00;08;45;21 - 00;08;54;11
Dr. Michelle Mello
And that's why we're saying now it's time to redo this modernization, to have a sort of 2.0 version that takes account some of these lessons learned.
00;08;55;15 - 00;09;24;18
Alan Weil
You know, you mentioned some of our listeners may not have been around or old enough to note and another dimension that seems important to me, not really the focus of our conversation here, is how unified the country was in the need to respond after 911. And if you look at sort of the divisions in how people today think about how we should have and did respond to COVID-19, there was, if I remember correctly, very little of that.
00;09;24;18 - 00;09;47;10
Alan Weil
There were questions about how to prevent terrorism and certainly civil liberties issues, but from a public health perspective, and of course, it was a very different situation, but from a public health perspective, I just don't remember the kind of fragmentation we have. It was more, as you say, we all understood that we weren't ready and we all understood that we needed to change to be ready next time.
00;09;47;28 - 00;10;09;06
Alan Weil
So as we think about getting ready for next time, part of the context is, that you've raised in a few places already, is this notion that you don't want to find yourself in the middle of an emergency and find out that you don't have the powers you thought you did. And that brings me to the question of litigation.
00;10;09;07 - 00;10;20;15
Alan Weil
One of the things you discuss in the paper is the large amount of litigation that has occurred around the response to the COVID-19 pandemic. Can you say a little bit about the nature of that?
00;10;21;23 - 00;10;44;13
Dr. Michelle Mello
There have been over 1000 different lawsuits just that appear in places where we can see the opinions over COVID related orders across the country. And they date to the earliest days of the pandemic, as we all remember, the response in terms of health orders was very swift and, you know, in many people's estimation, very severe. And the legal response happened very quickly.
00;10;44;13 - 00;11;06;12
Dr. Michelle Mello
And it has not stopped. The nature of the challenges have evolved over time, but it's still going on. So there's this huge volume of litigation, and that has been pernicious for a couple of reasons, even though the government has ended up winning most of those suits. The first reason is it was a big distraction. You know, I've spoken with local health officers who are trying to manage a pandemic.
00;11;06;12 - 00;11;27;17
Dr. Michelle Mello
They're, you know, they're working around the clock. They're exhausted, and they're being deposed in litigation that people are bringing, challenging them. Their lawyers are being diverted from working on questions of, you know, “What is the scope of powers? You know, can we do the thing we think we need to do?” to defending against these lawsuits. And that's not a great way to run a pandemic.
00;11;27;19 - 00;11;57;29
Dr. Michelle Mello
Again, you want to work those legal issues out outside of the emergency period, ideally. And the second problem is that even though the government has won most of the time, it's lost or, you know, had an adverse ruling, and according to one analysis by Wendy, Parliament and her colleagues at Northeastern University, probably close to 200 times nationally on all kinds of issues ranging from religious liberty to, does the state statute really say that the governor can do the thing that the governor did?
00;11;58;11 - 00;12;26;21
Dr. Michelle Mello
And so that has meant a few things when those losses have occurred. One is that the public health orders immediately get unraveled. You know, in some cases really creating chaos and sometimes have been replaced by really onerous new requirements for reissuing the thing, like, for example, a court in Wisconsin said that the health officer has to go on notice, undergo a notice and comment period, which as a lawyer should be causing you to have like a gastric reaction right now, Alan.
00;12;26;27 - 00;12;46;27
Dr. Michelle Mello
You know, this idea of like having to put an emergency order through a formal rulemaking process is ludicrous, it’s so lengthy. So this kind of stuff has gone on and then the longer term horizon leaves us feeling kind of uncertain about what all these rulings mean for exercises of public health powers in the future. Even post-COVID.
00;12;46;27 - 00;13;14;27
Dr. Michelle Mello
You know, for example, when the Supreme Court issues rulings on religious liberty, as it has, that greatly seemed to expand protection to cover all kinds of laws that previously got a very light level of judicial review because they didn't target religion. They're just these like neutral laws of general applicability in public health. One has to wonder, how is this going to affect the way that public health officials deal with tobacco or obesity or firearms?
00;13;14;27 - 00;13;25;20
Dr. Michelle Mello
There are all kinds of things now that are called into question. And one of the things I'm most interested in trying to understand better is how public health officials are going to respond to that uncertainty in the future.
00;13;26;17 - 00;14;08;21
Alan Weil
Well, we need to talk about how to have a system in place so that we can do our best going forward acknowledging a lot of uncertainty about what we’ll face. So we'll turn to that discussion after we take a short break. And we're back. I'm speaking with Dr. Michelle Mello about modernizing public health law. Before the break, we discussed what was in place as the COVID-19 pandemic emerged, that the systems and structures came out of the September 11th attacks and the subsequent anthrax attacks.
00;14;09;09 - 00;14;35;09
Alan Weil
We were just talking about litigation. You know, before we talk about solving some of these problems, there is another topic we probably ought to get on the table, which is the legislative response to this. So you mentioned at the outset that these emergency powers are legislated that some legislative body has said that so and so a person is empowered to declare an emergency and act in certain ways.
00;14;35;18 - 00;14;44;04
Alan Weil
But some of those laws are rolling back. What have you seen thus far? I'm sure the story is still being written.
00;14;45;11 - 00;15;23;01
Dr. Michelle Mello
Well, in states across the country, there is an effort underway to modernize public health laws again. It's just not going the way I think it ought to go. And what I mean by that is that, particularly in states that are Republican controlled and where people have very negative views of how COVID was managed, meaning they think too much was done, the reaction in the legislature has been to introduce bills that radically curtail emergency powers in ways that will really hamstring officials in that state if another pandemic occurs.
00;15;23;01 - 00;15;42;24
Dr. Michelle Mello
And again, we have to have some humility at this point. If there's one thing we've learned from the first round of modernization here is that we can't really predict what the next thing is going to look like, the next major health threat. You know, folks at the W.H.O. (World Health Organization) focused on the concept of a pathogen X that is far more virulent than COVID, far more lethal.
00;15;43;03 - 00;16;11;16
Dr. Michelle Mello
They're trying to plan for that. And so if we think about what's going on in the states in light of a threat like that, it's really worrying. So there are, these laws do things like require that legislatures ratify an emergency declaration after a very short period of time. For example, in Florida, it's like seven days. So unless the legislature can get together and meet and re-up the emergency declaration, it's over.
00;16;12;24 - 00;16;40;09
Dr. Michelle Mello
Things like you cannot issue certain kinds of orders full stop, like mask wearing orders, vaccination orders. Again, people are adopting these laws with the experience that's top of mind right now, which is COVID. But imagine a pathogen X. Now, we cannot require vaccination against this pathogen? We can't require people to wear masks? That's really scary. Things like limiting the things that local officials can do.
00;16;40;10 - 00;16;59;03
Dr. Michelle Mello
One of the big fights in the states right now is if a local community feels that a public health response should be different than the governor feels, should they have the ability to make their own rules? And, you know, it's long been kind of a republican talking point that local control is good and that's really been swept away
00;16;59;03 - 00;17;19;25
Dr. Michelle Mello
in a lot of states now where they have forbid local governments from doing things that are more protective of public health than what the governor has done. And, you know, particularly in our present environment, where there are a lot of political points to be scored by competing to see who can be the most lax about COVID, you know, that leaves many communities feeling like their needs are going unmet.
00;17;19;25 - 00;17;37;10
Dr. Michelle Mello
They would like to do more. For example, they would like their kids to wear masks in schools, and they haven't been able to do that. So those are just a few examples of the ways that the particular form that this modernization effort has taken. It is just dramatic overreach, much more than needs to be done.
00;17;38;01 - 00;18;00;21
Alan Weil
So as we think about some of your recommendations for where to go, I immediately am drawn to sort of the legal efforts to balance that. That's such a common thing that there are competing interests that need to be balanced. As you frame a policy agenda for the kind of modernization you think would be more effective than what you just described,
00;18;01;05 - 00;18;14;08
Alan Weil
what are those interests or values that have to be kept in mind? And different people may put the balance point at different places, but at least we would want them all to be thinking, how do we trade off this versus that? What is the this? What's the that?
00;18;15;29 - 00;18;37;28
Dr. Michelle Mello
Well, I think there are many people who would frame the core tradeoff as being between individual liberty and public health powers. But I think it might actually be more productive to frame it a little bit different. I think it's between democratic accountability and discretion on the part of the executive branch. So let me explain a little bit about what I mean by that.
00;18;39;11 - 00;19;15;28
Dr. Michelle Mello
I don't actually think there are that many people in the United States who would say that if we faced a pathogen X, they don't think individuals should be compelled to do things that would protect themselves and others like, you know, receive a vaccine or therapy or have to take a test for it. What they've objected to, rather, is being ordered to do that by executive officials, meaning governors, local government bodies, and especially health officers who are unelected officials, usually. Without having a means of bringing kind of majoritarian democratic processes into the mix, at least not an easy way to do that.
00;19;16;19 - 00;19;52;10
Dr. Michelle Mello
And so when I talk about democratic accountability, I'm talking about creating meaningful ways for legislatures and for groups of the public to give input and have some degree of control over those kinds of orders, at least over the long term. You know, my own view is that when we're talking about a short term emergency, it's appropriate to cede that power to health officials and to governors. When we hit kind of the three month mark, which is where solidarity around COVID measures started to fray, then it starts to seem appropriate to have more democratic measures in play.
00;19;52;20 - 00;20;18;21
Dr. Michelle Mello
So that value needs to kind of get elevated the longer an emergency wears on. But the other side of the tradeoff is executive discretion. And by that I mean that the whole point of having emergency powers laws is that we can't predict what executives are going to need to do. Governors and health officials need to have the flexibility to respond to threats in the way that is most likely to be helpful using the information that they have on hand.
00;20;19;00 - 00;20;43;20
Dr. Michelle Mello
And so when we pursue these modernization strategies that just dramatically retrench that flexibility again, we are ultimately harming our long term good. So there needs to be efforts to push out powers in certain ways. There are ways in which we did not give executive officials enough power, but they have to be, as you say, balanced by appropriate accountability checks as emergency periods wear on.
00;20;44;12 - 00;21;11;12
Alan Weil
Well, I really appreciate that framing, because I do have to say the freedom, individual autonomy versus public health protection does always seem like a frustrating and overly simplified way of thinking about it. If you are, don't feel safe being out and about because people are not taking protective measures, that's not really the kind of freedom at least a lot of people would like to have.
00;21;11;29 - 00;21;40;04
Alan Weil
It may be a choice, but it doesn't feel very free. And so this notion of checks and balances, of limitations on duration and maybe scale, that seems like a more realistic or more honest, actually, to me way of thinking about it. So if someone wants to get all the details of what modernization 2.0 should look like, I'm going to send them to your article in Health Affairs, because there's more than we can cover here.
00;21;40;04 - 00;21;53;29
Alan Weil
But as we come to the end, can you say a little bit more. You've set this stage about the limitations and some of the parameters. Can you just highlight for our listeners a few of the key recommendations you made regarding modernization 2.0?
00;21;55;10 - 00;22;23;11
Dr. Michelle Mello
So I'll start with the accountability piece. We make a number of recommendations, but only, we mentioned two that I think would be especially helpful. One has to do with what legislatures get to have a say in. I already talked about when they should have a say and I’ll preface this by saying, I don't think any of this should’ve kicked in for at least three months, but eventually legislatures ought to have the ability to strike public health orders after making a showing.
00;22;24;13 - 00;22;46;23
Dr. Michelle Mello
And that's a lawyerly term for, as you know, for producing reasoning and evidence supporting that their action meets standards of being reasonably necessary to promote some important value or interests of the state. The problem is that the way most state laws set this up right now is the legislature can only strike the emergency declaration. They can't strike particular orders.
00;22;47;02 - 00;23;17;02
Dr. Michelle Mello
And that stinks if you're a legislature, because there are some things that become possible because of emergency declarations that very few people would want to end. Like you get to access pools of money that have been held in reserve or strategic stockpiles of PPE or other necessary supplies. You get to waive state hospital regulations to enable hospitals to surge their capacity or do telehealth, do all these things that were really super helpful in managing the needs that arose during COVID.
00;23;17;07 - 00;23;38;08
Dr. Michelle Mello
You don't want to turn all that off. So what you’d like to turn off is, like, the stay at home order. So let's let legislators do that, again, after making a specific showing and after a considerable period of time has passed. A second accountability check I think is requiring more consultation and in ways that are more likely to be helpful.
00;23;38;09 - 00;24;01;28
Dr. Michelle Mello
You know, the main way that the public got to offer input on COVID orders was that these virtual or in-person town hall meetings where everybody got to test out how loud their voice could be and how angry. And, you know, I don't find that kind of forum to be a particularly helpful forum for actually contributing constructive input on what people would like to see happen as opposed to venting.
00;24;02;11 - 00;24;34;08
Dr. Michelle Mello
And maybe there's a place for that. But what I'm talking about is a consultation process that would bring together groups of legislative leaders, representative groups of community members to meet with health officials and others in a way that they can really voice concerns. We know from other research that the most important determinant of whether people are willing to accept public health policies that are a little out there, a little out of their comfort zone, is feeling that they had a voice in the process, that a person like themselves could have some influence over the process itself.
00;24;35;00 - 00;24;58;04
Dr. Michelle Mello
So those are two of the suggestions that Larry Gostin and I make as to expanding accountability. Now, how about on the other front of expanding powers so that officials can be sure to be able to mount an effective emergency response? Well, job one is clarifying that these state laws permit officials to issue orders that affect a whole class of persons, like a stay at home order.
00;24;58;16 - 00;25;27;20
Dr. Michelle Mello
As much as we all don't want to repeat that experience again, if we imagine a pathogen X type scenario, surely we want that to be in the toolkit of possibilities that officials ought to have. And again, in some states it's just not clear. There also needs to be, I should say, better processes outlined for individuals to challenge those orders, because all of the hearings and challenge processes that are outlined in the statutes right now contemplate quarantining one guy, and not a community full of people.
00;25;27;20 - 00;26;06;03
Dr. Michelle Mello
And so there needs to be better thinking about that. Another really important step that needs to be taken is clarifying the federal powers. Many judges and justices today are adopting quite a strict view of how to read statutes such that when they have an executive official or an agency doing something of dramatic social, political or economic significance that is not clearly authorized in a statute, they're inclined to say, no, we don't feel confident that the state legislature or Congress meant for this agency, this official to have such sweeping power.
00;26;06;19 - 00;26;27;10
Dr. Michelle Mello
If the legislature wants to do it, they can do it, but you can't. And that's not great. We can't have legislatures governing pandemics from day one. It doesn't work, you know, just in terms of process. They have such an unwieldy lawmaking process for emergency management. So the alternative is for Congress and legislatures to speak more clearly about what agencies can do.
00;26;27;18 - 00;26;47;00
Dr. Michelle Mello
For example, the Centers for Disease Control has been told by the courts that it may not issue an eviction moratorium. It's run into trouble when it's tried to govern the terms that cruise ships have to follow in order to sail and do a bunch of other things, including vaccination mandates. If Congress would like it to have that power,
00;26;47;15 - 00;27;03;05
Dr. Michelle Mello
in other words, if it would like there to be some power at the federal level to do those kinds of things, it needs to clarify the Public Health Services Act. So there are a bunch of other things that can be done to kind of clarify and expand state and federal powers. But those are some of the highlights.
00;27;04;02 - 00;27;28;14
Alan Weil
Well, that's really helpful. And again, just if our listeners want more detail, you can see it in the paper. But this notion that you need clear boundaries, but also clear authority that we should go into this with a sense that we when in an emergency, there are going to need to be a small number of people who are highly trained, who are looking at the evidence and making decisions.
00;27;28;22 - 00;27;52;25
Alan Weil
But those decisions aren't forever. And we need to think about what decisions we might need them to make, even though we don't know what emergency they are going to face. And that, I, in many respects, I think is the hardest. It's just so hard to get your head around what something might look like, but there's sort of no point having all these laws on the books if they're not able to handle the situation that emerges.
00;27;53;19 - 00;28;17;19
Alan Weil
That takes a lot of imagination. But it's hopefully something we can focus on during a quieter period than we're in right now. Well, Dr. Mello, thank you so much for this analysis, for the review of how we got here. For some great advice on how to go forward. Always great to talk to a lawyer and to be able to think about these issues from a legal angle as well as sort of the broader public policy angles.
00;28;18;02 - 00;28;21;02
Alan Weil
Thank you so much for being my guest today on “A Health Podyssey”.
00;28;21;21 - 00;28;25;03
Dr. Michelle Mello
Been great talking with you. Thank you.