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Health and the Power of the State

May 15th, 2018 | 12 min read

By Guest Writer

By Daniel Hindman

Over the last several years, public health has become sexy. It wasn’t always this way. Prevention was boring. Who, besides your dentist, gets passionate about tooth brushing and fluoridation of the water supply? We joke every New Year about the banality of resolving to exercise, again, in order to try to lose weight, again. Public health is prevention. And prevention has not historically been popular. We avoid the doctor and the dentist because we are miserable failures at prevention.

But something appears to have changed. It’s hard to say what, exactly. Was it the Affordable Care Act? Was it LGBTQ advocacy? Ebola? Swine flu? What led to public health suddenly becoming a place for the cool kids?

What if nothing changed suddenly, though? What if this has all been a slow, steady swell?

The Police Power

There’s a famous case in the history of public health law known as Jacobson v. Massachusetts. The facts involve a smallpox outbreak in the city of Cambridge, Massachusetts in the early 20th century. Henning Jacobson was a minister who lived in Cambridge. When the outbreak occurred, the city mandated that every adult be re-vaccinated or face a fine of $5. Jacobson refused, all the way to the Supreme Court of the United States, protesting that the requirement violated his liberty under the U.S. Constitution.

The Court decided 7-2 in favor of the state of Massachusetts. In the majority opinion, Justice Harlan rejected Jacobson’s claim that the vaccination requirement violated his 14th Amendment rights, stating, “According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”

The “police power of a state” is not something many teenagers are taught about in U.S. Government in high school, and many likely never heard it mentioned in college either. What is it? Under the construct of our federal constitution, those powers not enumerated to the federal government are reserved to the states. The police power is, perhaps, the greatest of these powers. These powers are not to violate those rights granted to us by the Constitution nor those powers enumerated to the federal government. Nonetheless, the police power is the otherwise limitless power of the state to regulate behavior.

The decision goes on: “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” In other words, so long as the police power does not interfere with either a protected right or a federal act, it can legislate in any area it pleases. The police power includes, as stated per the Justice’s interpretation, even the very morals of the community, which he appears to relate to issues of good order and health.

It is striking that one of the fundamental cases regarding the police power of the state revolves around health. It speaks to the power of the state government in the area of health. If an issue is found to be associated with health, the state has compelling reason and the authority to intervene on the basis of the police power.

This power of the state to intervene on behalf of health is, by its nature, a good thing. We want the government to be able to quarantine people with Ebola. We want the government to have the authority to require those with active tuberculosis to be treated or face a jail cell (where they will certainly be treated). How many lives have been saved because the state governments required mandatory smallpox vaccination? I have heard a former city health commissioner state that he had more power than the mayor. Because of the police power, he was right.

But what about non-infectious diseases? Smallpox, Tuberculosis, Ebola – these are all communicable diseases. Is the police power of the state able to regulate non-communicable disease? Yes. A number of cases have shown this to be true. Dowell v. Tulsa applied the police power to fluoridation of the water supply of the city so that kids might have fewer cavities. Motorcycle helmets provide another example to the end that accidents might cause less mortality. The police power is broad, as broad as the concept of health itself.

The Ubiquity of Health

One of the things that has stood out to me over the last several years is how our language betrays us when it comes to understanding. It encapsulates ideas and concepts that we may not even recognize ourselves. It is coded with assumptions and beliefs about our world that are not immediately detected by our thoughts. We can only think with the words and ideas that we have. They circumscribe our categories of thought. They limit us. Are we defining our words? Or are our words defining us?

As to language, our use of forms of the word “health” has become ubiquitous. There is talk about healthy foods, healthy marriages, healthy living, and healthy relationships. There is a speciation of health into physical health, spiritual health, mental health, corporate health, financial health, institutional health, and the nation’s health. But what is really meant by all these things? Are these ideas really talking about health? Or are they using a vague metaphor to represent another idea altogether? And what is health in relationship to wellness or wellbeing?

Because I was curious, I plugged the phrases healthy living, healthy lifestyle, health food, and wellness into Google’s Ngram viewer. It lets you see the trends in word use over time. “Health food” and “wellness” take off in usage around 1970 and appear to greatly outperform the other two in their usage. Around this time, the concept of wellness as a way of healthy living was popularized by Dr. John Travis and spread through The Berkeley Wellness Letter. Now there is a Global Wellness Institute and a whole trillion-dollar global economy devoted to wellness. People tweet their workouts, Instagram their diet fads, and blog about their progress (or lack thereof).

It appears that our conceptualization of health began to change in the second half of the 20th century, and our language changed with it. We began to think about health holistically, as opposed to thinking about it as only the absence of disease. The WHO took this stance in 1948, when it defined health as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.” There is much that is good in this broad understanding of disease. It brings attention to not only disease and disease processes but the determinants of disease. We should think about health in a broader sense than merely the absence of disease.

Ironically though, as our thinking about health appears to have broadened, our actual health has greatly worsened. Obesity became epidemic. Rates of diabetes sky-rocketed. Depression and anxiety spread through large swaths of the population. We talked about health more, but we practiced it less.

It may be a myth of our current time, however, that prior generations were ignorant that health was a broader concept than the absence of disease. Galen, after all, wrote a work entitled On Healthfulness. Hippocrates said, “Eating alone will not keep man well; he must also take exercise.” The four humors were a medical theory but also used to explain moods and personalities. One might be melancholic or sanguine. William Osler, the father of modern medicine, said himself, “The good physician treats the disease; the great physician treats the patient that has the disease.” He saw the behaviors and practices of the patient as integral to the patient’s health.

One feature of our society that has clearly changed is our discomfort with metaphysical or spiritual concepts, especially in any organized form. But through the language of wellness and holistic health, we take ideas that were, in previous times, often acknowledged as within the spiritual realm and clothe them in the language of health in order to feel more at ease with them. We’ve taken the collar off the priest and put him in a lab coat. In doing so, we have made what was previously the domain of the pastor or theologian the domain of the physician-scientist or the epidemiologist. In other words, when we talk about wellness, we could as easily use the word shalom.

Defining and Achieving Wellness

In addition to shifting many of our everyday concerns from the domain of Religion to the domain of Medicine and Science, this shift in our language has also re-shaped who we see as responsible for defining and promoting wellbeing in society, which brings us back to the police power of the state. If Jacobson v. Massachusetts made it clear that the police power could be used to protect health, the ubiquity of health in our language has now made it so that everything is about health. From the clothing we wear to the jobs we work to the way our rooms or houses are arranged, health and wellness have come to be one of the most important criteria for how we live our lives. And now everything that infringes on these many spheres risks infringing on our health.

When the definition of health expands, so does the definition of disease. Since public health is about prevention, and since it is the responsibility of a state through the use of its police power to uphold “the safety, health, peace, good order, and morals of the community,” the government through the practices of prevention becomes key in upholding our modern concept of wellness. Prevention becomes public wellness.

With the responsibility of the state to protect health, the most pressing question then becomes who or what controls our definition of health, particularly for the public? Philosophical and theological concepts of wholeness and what it means to be well (or flourish societally or individually) have a rich history within their respective traditions. These traditions typically have an understanding of wellness that is derived from an idealized understanding of what it means to be human in the world. Science, however, has no such starting point for what it means to be well. It does not operate within the world of the way things were meant to be or should be, as if there was some end to which the world was made or is destined. Science functions as a measuring tool of the way things are. It is pragmatic.

For example, a scientific study may tell us that Drug A is more likely to work than Drug B, but it does not give us the values to decide whether the benefits, risks, and cost of Drug A make it better than Drug B. In the absence of a philosophical or theological framework to inform these value decisions, studies to help inform public health on a given issue easily devolve into decision-making based on the greatest good for the greatest number, using narrow conceptions of mortality and morbidity that, by the nature of scientific study, are often dissected from any holistic understanding of what it means to be human in the world. Alternatively, capitalism becomes the criterion for decisions, using pragmatic measures such as quality-adjusted life years and disability-adjusted life years and their relationship to the dollar.

Again, there is irony here. Health is ubiquitous. We talk about it all the time. We have spread its ashes everywhere, but we do not know its person. Our understanding of health is piecemeal. Science has given us a reductive knowledge of the individual building blocks of health. But how do they fit together? Or better yet, how ought they to fit together? This is a question that Science cannot answer.

However, since we have no shared theological or philosophical source for understanding what it means to be whole and well, it seems that the state and its experts are becoming the default means for attempting to put the pieces together. Public health arguments appear increasingly used as a justification for political measures, whether environmental, social, or financial, which demonstrates the usefulness of this approach to the exercise of state power (as well as federal power, through different, and perhaps more limited, means than the police power). This is not to minimize the process of peer review or the importance of the practice of public health. Rather, it is to highlight the pressing need for how we think about what it means to be well due to the ubiquity of health in our language and the implications of wellness for the public and the power of the state.

Public health has increased in popularity because to define public health and to practice public health is to wield significant power through the state. It becomes a means for promoting wellness in service of the state that is pragmatically derived through Science from the way things are rather than any shared philosophically or theologically guided concept of the public good. But if public health is to truly serve the public rather than the politician or a cause, then we must consider anew what it means to be well in the world, both as individuals and as societies.

Daniel Hindman is a physician and practitioner of public health in Baltimore.

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