HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, July 5, 2022

Imagining a Better Public Health (Law) Response to COVID-19

Evan D. Anderson (University of Pennsylvania), Scott Burris (Temple University), Imagining a Better Public Health (Law) Response to COVID-19, 56 U. Richmond L. Rev. (2022):

The United States did not respond effectively to the COVID-19 pandemic; we were not even close to the league leaders. Several narratives are getting traction in explaining how the public health system lost its way during COVID-19. The “bad leaders” narrative focuses on the incredible failings of, if not outright sabotage by, the Trump administration and its political allies. The “bad budgets” narrative attributes problems in current public health practice to decades of underinvestment.This immiseration of key sectors of the public health ecosystem, along with related structural and cultural problems, underlies the “bad institutions” narrative, which takes plenty of force and evidence from the continuing missteps by the nation's key key public health entities. The “bad Americans” narrative locates the root of our poor pandemic response in the selfish, ignorant, and tribal impulses of the populace in their embrace of Trumpian populism, vaccine denialism, and conspiracy theories.

All these explanations capture part of the failure story and point to things to change and do differently if Americans want better results next time. In this paper, we want to focus on the failures within the public health community. Public health professionals—including the authors of this article —did fail, not each of us or in every case, but as a collective, as a field, as a “technology” for managing a pandemic. We drew faulty inferences, gave poor advice, and launched COVID-19 control rules with shocking indifference to social, psychological, economic, and political factors. Public health cannot be blamed for bad leaders, or budget cuts, fake news, or bad law. All of us in public health could certainly fall back on the defense that we were not heeded or lacked the power to properly deploy our expertise. But such outward-looking explanations do not capture the elements of the story that are useful to public health going forward. Knowing who else we can blame does not help those of us within the field of public health to be better or do better. Irresponsible leaders, angry Americans, and insufficient budgets are not “problems” that get in the way of public health— they are the conditions in which we work, and it just will not do to point to them as the causes of failure. Where we have agency in this broad field is over what we do, and there is plenty to talk about—not just COVID-19, but opioids, obesity, and other big problems we have identified that have not gotten better.

This Article is not a thorough-going history of the pandemic response. By way of critique and suggesting a way forward for public health, we are going to imagine how public health—both the official agencies and the interconnected nodes in academia and health systems—might have approached COVID-19 differently. This is a story that focuses on good judgment as the lynchpin of optimal pandemic response and allows us to think about where good judgment seems to have been lacking, and how public health culture and institutions might change to improve the chances of better judgment next time.

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