|Daniel Fox, Populations and the Law: The Changing Scope of Health Policy, 31 Journal of Law, Medicine and
Ethics 607-613 (Winter, 2003)(27 footnotes citations omitted).
Changes in the scope of health policy in the United States are creating opportunities and obligations for
lawmakers and the lawyers who advise them. These changes are the result of a new politics of policy for the health
of populations. The new politics is connecting areas of policy that, because they have had separate histories, are
governed by distinct, usually uncoordinated laws and regulations.
The subject of the new politics of health policy is what the Iowa Senate President, speaking in a plenary at the
2003 conference on Public Health Law in the 21st Century, called the “quality of life, what the people think is
important.” (1) An increasing number of leaders in general government-- people who run for office and their
staff--have practical reasons to make policy that acknowledges the expanding scope of what their constituents
define as health policy. These connected aspects of policy for the quality of life include: access to personal health
services of appropriate quality; financial security for parents of young children and retirees; surveillance of and
rapid response to threats of disease and disaster; protection against harm as a result of poor water quality, air
pollution, toxins in the soil and contaminated food; control of risks from tobacco and other substances; reduction of
injuries and risk of illness in workplaces, homes, and public space; and protecting the independence of persons
who are frail and have disabilities.
The new politics of health policy is creating demand for new and revised laws and regulations, as well as for
more effective enforcement of existing law. New law is required in particular to coordinate the improvement and
maintenance of health with other important goals of policy. These goals include enhancing economic opportunity
and development, improving the performance of children in school and the productivity of adults in the workplace,
and maximizing the independence of individuals. Each of these goals has support from many voters as well as
from interest and advocacy groups that retain capable lawyers.
Lawyers who advise elected and appointed public officials are particularly important in the difficult work of
improving the effectiveness and coherence of health policy as its scope expands. Most lawyers in public service
work in general government. Lawyers employed in specialized government agencies usually spend more time
informing and negotiating with persons in general government than do most of their agency colleagues.
I begin with a brief history of the new politics of health policy, particularly the expanding scope of population
health, a phrase that includes but is not limited to what is generally called public health. Then I discuss lessons for
the law of health policy from responses to the events of September 11th and the anthrax cases. I conclude by
suggesting how law and regulation can conform with and improve the effectiveness of public spending in the
categories in which general government, especially in the states, budgets and accounts for health policy.
Readers deserve a warning about the methods that inform this essay. Most of what follows is based on the
standard methods with which intellectual and political historians and journalists find, interrogate and cite their
sources. But I also use privileged information I acquired while staffing or advising policy makers in general
government. As a matter of ethics I cannot document information that loyalty to these policy makers (and in one
instance to a researcher) obliges me to hold in confidence.
*608 AN OVERVIEW OF GENERAL GOVERNMENT AND HEALTH POLICY
People in general government survive and prosper as a result of their constituents' opinions about how well
they allocate scarce resources. They decide what policies their constituents desire and--not necessarily the same
thing--what policies the people will agree to pay taxes to support. They do this by reading polls and surveys,
listening to lobbyists and advocates, studying the media and, not least, talking with voters. The scope of health
policy in a democracy is what the people want it to be combined with what leaders in general government believe
their constituents will find plausible. What the people want is often different from what most lobbyists, experts and
advocates would like them to want. (2)
The larger the jurisdiction served by an elected official, the greater the variation in what voters want policy to
be. Opinions about policy differ by occupation, income, region, race, ethnicity, age and health status. These
differences make some people more supportive than others of policies endorsed by particular interest and advocacy
Leaders in general government are always mindful of their last election, as well as the next one, and
frequently explore opportunities to achieve higher office. They observe that most of their constituents accord health
their highest priority when they or someone they love is diagnosed as having a disease that is likely to be
debilitating or fatal. Most people place higher priority on some combination of jobs, income, housing, education for
their children, public safety, and freedom to eat, drink, play and travel as they please than they do on what most of
them along with most experts and the media define as health policy.
For most people in general government, most of the time, the business of health policy is routine distributive
politics. That is, elected officials and their staff negotiate most issues in health policy with people who are in the
business of health in the private, non-profit and public sectors. Most of these negotiations are not covered in the
general media. Health policy has been a major issue of public debate in the nation and most states, competing for
attention from voters and the media with defense, the economy, public safety, education and taxes, on fewer than
ten occasions in the past century.
Voters usually accord very high priority to health policy only when they perceive significant, usually
unanticipated, threats to their health or the health of persons close to them. The most frequent source of such
threats has been a diagnosis of a dread disease and the lack or loss of access to affordable health care of acceptable
quality. Occasionally the threats have been epidemic disease or disasters.
Many leaders in general government, and even more members of their staffs, know that experts on public
health offer compelling evidence that there are multiple determinants of rising life expectancy and the declining
incidence of many dread diseases. They know that advances in health research and increased access to care have
probably not been the major causes of this progress. But they have had practical reasons to continue to accord the
highest priority to personal health services.
The most important of these reasons is that many determinants of health are already high priorities of general
government. Persons in general government who have leadership positions in health policy see scant practical
benefit, and considerable political risk, in advancing on the territory of their colleagues who lead in, for example,
economic development, education, housing, urban and regional planning, retirement income and income support
for the poor. A great deal of taxpayers' money is already spent on these matters. Moreover, established interest
groups in each area have resisted or retaliated against advocates who try to raise the salience of health issues.
Leaders of these interest groups fear that higher costs and increased regulatory oversight could result from greater
attention to the consequences for health of their members' actions.
THE EMERGENCE OF THE NEW POPULATION HEALTH
Until recently, even persons in general government who had strong support from their constituents for
expanding the scope of health policy did not find research on multiple determinants to be of practical use. Evidence
that income and nutrition seemed to have contributed more to better health than personal health services and
traditional public health interventions had been published since the 1950s. (3)
Many of the authors of this research
were European social democrats and American liberals who interpreted their findings as an argument for more
equitable distribution of opportunity, wealth and social status and especially for reducing disparities in health
status between classes and races. (4)
Intellectuals and policy makers of the opposite political persuasion were eager to
shrink rather than expand what they disparaged as the welfare state. They co-opted research on the determinants of
health beginning in the 1970s; embracing evidence that higher standards of living rather than public policies were
the most important cause of improved population health status. Their logic made social democrats and liberals
defensive and, in many political situations, defenseless. Since market economies produced the highest standards of
living, public funding for health care and public health could be restrained or even reduced and the resulting
savings, flowing into markets, would fuel improvements in population health status. (5)
In the 1980s, advocates of
Thatcherism in Britain and supply-side economics in the United States praised research findings about the
determinants of health status. Their political opponents who wanted to expand the scope of *609 health policy and
the social safety-net were limited to arguing about the costs of the socio-ethnic disparities experienced by a
minority of voters in industrial countries.
Events during the 1990s gradually created a counterargument that was grounded in a populist definition of
what determined the health of populations, rather than in research and policy theory. These events eventually made
it possible for persons in general government to claim that policy for population health, and the law that
implemented it, helped to make markets function more efficiently, enhanced the independence, liberty, and
productivity of individuals, and used public and private resources more effectively.
The earliest of the events that would eventually have political significance occurred, ironically, in the
literature of the history of public health. Beginning in the late 1980s research findings began to contradict the
nihilism about public policy for health that reinforced the ideology of conservatives and neo-liberals. Historical
epidemiologists published evidence that policy to prevent disease had accounted for significant improvement in
health status in industrial countries since the 19th century. (6)
Rising income and better nutrition alone could no
longer be considered the principal determinants of rates of death and sickness. During the 1990s other researchers
using the methods of epidemiology published evidence that policy for the built and natural environments and
regulation of food safety contributed to improved health; often at no or low additional cost. (7)
Some researchers tried
to quantify the percentage of improvement of the health of particular populations that could be accounted for by
personal and public health services as well as other determinants. (8)
Evidence from Britain in the 19th century
demonstrated the inexorable linkage of improved health status with increased incidence of taxation. (9)
evidence from the Soviet Union and Russia since 1960 revealed the sensitivity of mortality rates to a substantial
decrease in spending for public services. (10)
The parallel development of research methods to study the effectiveness
of particular health services was, however, of more immediate importance for the politics of policy than these
advances in understanding broad determinants of health. The researchers who developed this methodology used
the epidemiological principles that informed research on the determinants of health to evaluate interventions with
individuals to prevent and treat disease. The subjects of this research were populations that received particular
treatments and others that received other interventions or no treatment. By the early 1990s some researchers who
applied the principles of epidemiology in clinical settings called their work outcomes research; others introduced
the phrase evidence-based medicine. (11)
During the same years other scientists working in the epidemiological
tradition, along with colleagues in the social sciences, elaborated the new science of research synthesis. They
devised and demonstrated the value of rigorous methods for recognizing and eliminating biases'in studies of
primary data, especially randomized controlled trials, and pooling data from multiple studies to increase the
statistical power of their findings. (12)
By the mid-1990s, these advances in clinical science were creating new
opportunities for policy makers. Population-based research made it possible for evidence in which both statisticians
and politicians had confidence to replace assertions of expert opinion in discussions about a great deal of policy for
health care coverage and community interventions to improve health status.
The new salience of knowledge derived from the rigorous study of the effects of interventions on populations
promised to obliterate the conventional boundaries separating policy for health care, public health, and other
determinants of health. But ideas that are obsolete persist in law and regulation, as much history attests. Laws are
difficult to craft but even harder to revise and repeal. Moreover, many laws and regulations become sources of
income and power for particular groups as well as fees for their attorneys. The new population-based research
became a potential source of new law because of events that interest and advocacy groups and officials of
specialized government could neither control nor contain.
Debates about policy for the organization and cost of health care made the new population-based research
increasingly relevant as a tool for policy makers. In the early 1990s, evidence about the effectiveness of
interventions promised to make it possible for coverage decisions by government and health plans to be about care
as well as cost. The federal government began to allocate substantial funds for research on the outcomes of health
care and the preparation and distribution of guidelines for clinical practice. The first uses of the new science of
research synthesis to inform clinical policy, in Canada and the United Kingdom, caught the attention of leaders
among researchers and physicians and a few officials of general government in the United States. (13)
mid-1990s, the substance as well as the buzzwords of “evidence-based medicine” became the basis of policy for
value purchasing, a label devised by enthusiasts for the new research among human resources executives of large
employers and officials of state Medicaid programs. Their purpose in promoting value purchasing was to stabilize
the cost of care for public and private payers while improving, or at least not diminishing, its quality. Further
blurring the conventional boundaries among domains of health policy, these proponents of value purchasing said
that they were making policy to improve and maintain the health of the populations for which they were
responsible; employees, dependents, military personnel, and Medicaid recipients. (14)
The economic downturn after
2000 coincided with a sharp increase in health care costs as a result of resistance *610 by physicians and
consumers to managed care, the historical cycle in markets for health insurance, and a spike, for a variety of
reasons, in the utilization and price of pharmaceutical drugs. Because of a decade of investment in
population-based research, however, the recession and cost escalation also coincided with the availability of several
thousand high quality syntheses of evidence about clinical interventions. As a result, reduced corporate earnings
and shortfalls in tax revenues, combined with rising costs for insurance premium costs and government entitlement
programs strengthened the incentives for policy makers to use the results of population-based research. Evidence
now competed more successfully than ever before with expert opinion and interest group politics to inform policy
for coverage of expensive classes of drugs, diagnostic and screening tests, and medical devices. (15)
Since the early
1990s, moreover, other areas of health policy and law have been re-conceptualized as matters of population health.
Since its origins in the first decade of the 20th century, for instance, federal and state regulation of food safety had
been based mainly on direct observation of production lines by trained inspectors. Deaths from poisoning by e coli
bacteria in the Pacific Northwest in the early 1990s caused the United States Department of Agriculture to institute
a new regulatory system for meat, poultry and eggs. The new regulations required, for the first time, inspection of
food for sources of contamination that inspectors could neither see nor touch. An ongoing population-based
evaluation of the incidence of leading food-borne diseases by the Centers for Disease Control and Prevention
accompanied the rollout of the new regulations. After five years there was solid evidence that the incidence of these
diseases was declining, despite considerable resistance to regulatory reform by meat packers and processors and
federal inspectors. (16)
Other significant areas of policy in which reformers have recently given some attention to
population-based research include the rights of persons with disabilities, long-term care, and the adequacy of
retirement savings and income. The Americans with Disabilities Act (ADA) of 1990 was largely a result of work
by a coalition of liberal advocates of civil rights and conservative promoters of self-help and limited government.
This coalition helped to write and then implement legislation that required government and business to prioritize
opportunity over dependency, and to compensate for prior societal neglect, for individuals with disabilities. (17)
Within a few years, disability policy expanded to focus systematically on populations as well as on individuals. In
the 1980s a few theorists of disability rights had described what they called the potential universality, or general
population benefits, of accommodations designed to improve the quality of life for persons with disabilities. For
example, sidewalk curb cuts, advocated initially on behalf of persons with impaired mobility, benefited persons
wheeling baby strollers and suitcases. (18)
The implementation of the ADA transformed the theory of universality
into an issue of policy for population health. Persons who made and implemented regulations to carry out the
various titles of the ADA used population-based research methods to project, for example, the percentage of newly
built or renovated dwelling units that should be accessible, specifications for the accessibility of public buildings
and outdoor space, and spending for accommodations in mass transit. (19)
Disability policy also converged with
policy for long-term care, and then with policy for retirement savings, to create a new area of population health
policy. Court decisions and consent decrees to implement them, beginning in the 1970s, had guaranteed persons
with mental illness and developmental disabilities access to care in the least restrictive settings. Litigation under
the ADA strengthened this right and extended it to public spending on behalf of seniors with disabling
These court decisions gave greater visibility and influence to reformers in the fields of long-term care
and senior services, who had been insisting, in parallel but rarely in coalition with disability rights advocates, that
policy should encourage elderly persons to live independently in their homes and home-like settings as long as they
A growing number of leaders in general government were rethinking the principles of policy for long-term
care for the elderly. Medicare and, more important, Medicaid had fueled a vast, expensive expansion of long-term
care services, especially in nursing homes. Medicaid eligibility rules had made nursing home care for frail elders
an entitlement that enabled middle-class persons to preserve their capital assets.
Law reinforced these characteristics of Medicaid. Because its legal basis was the law of public responsibility
for the poor, rather than the law of responsibility for health, Medicaid policy perversely protected assets,
handsomely rewarded many nursing home providers, and usually did not mandate interventions to moderate the
inexorability of disease trajectories toward death. The law of public responsibility for the poor, as it evolved
between the 17th and 19th centuries, had obligated local government to offer minimal protective services-including
health services-to impoverished persons. Then the law changed.
During the 19th century public policy bifurcated the poor law and health law, initially in Britain then in the
United States. In his Sanitary Report of 1842, Edwin Chadwick, the British official responsible for administering
the poor law, shifted the focus of public health law from the protection and care of individuals to environmental
degradation, particularly diseases caused by filth and impure water. Moreover, Chadwick and his colleagues, like
more recent policy theorists and advisers, insisted that the free market was the best preventive for dependency.
Later *611 in the 19th century, policy and law separated medical care for the poor from relief for destitution;
paupers became patients upon receiving a diagnosis. (21)
By the early 20th century, in most countries influenced by
English law, the poor law addressed the incidence and prevalence of dependency rather than of illness. Under the
poor law security, safety and the standard of accommodations were more important measures of the quality of
services than measurable health outcomes or even mitigating or ameliorating the effects of disabilities.
Policy makers' growing interest in a population health approach to long-term care was converging by 2003
with population-based evidence that many of their working age constituents would not be financially secure in
retirement, especially if they were women living alone who had a serious chronic disease. This research projected a
large and increasing societal deficit for the nation and for each state over the next three decades. This deficit would
create extraordinary hardship for individuals, pressure on the younger members of their families, and open
questions for policy makers and philanthropists. (22)
By the late 1990s the new emphasis on population-based policy
for health had influenced public sector lawyers regulating proposed conversions in profit status by hospitals and
health plans. Like the law governing long-term care, the law of charities and trusts had traditionally been distinct
from the law of public health. Most of the legal controversy in the conversions that began in the mid-1980s and
peaked a decade later was about the size and deployment of the assets that remained available for charitable uses
after investors took ownership of a health care institution. In 1998, however, the attorneys general of California,
New Hampshire and several other states began to investigate the effects of conversions on community health status.
In 2003 the effects of proposed conversions on other goals of health policy were considerations, though not the only
ones, in the rejection of proposed conversions of Blue Cross/Blue Shield plans by the states of Kansas and
Maryland and in the withdrawal of an application to convert in North Carolina.
SEPTEMBER 11TH AND THE EXPANDING SCOPE OF HEALTH POLICY
The expansion of the scope of health policy that had begun in the early 1990s informed the response of policy
makers in general government to the events of September 11th and the threat of bio-terrorism in ways that
disconcerted many public health officials. For several months after the terrorist attacks many of these officials, in
both the federal and state governments, expected general government to remedy what they believed to have been
the neglect of public health since the 1950s. Similarly, officials of the Centers for Disease Control and Prevention
and the national associations of public health officers, expected general government to embrace a model act that
they endorsed to modernize states officials' powers in health emergencies.
The politics of the new population-based health policy quickly disappointed these public health officials. A day
after the Department of Health and Human Services announced guidelines for submitting proposals for grants to
strengthen public health infrastructure, the Secretary--a former Governor--wrote to governors insisting that they
exert control over the development of applications from their states. (23)
In subsequent months state health officials
found that they shared decision-making about the new federal funds with colleagues in emergency response and
criminal justice. In many states, legislative leaders inquired about the status and clarity of arrangements with
adjacent states for collaboration during health emergencies. When legislators found these arrangements
inadequate, they insisted that lawyers working for attorneys general and health agencies remedy them.
Leaders in state government did not defer to experts in deciding whether and how to use the Emergency
Health Powers Model Act. Before the draft Model Act was distributed, senior state officials, mainly legislative
leaders, advised CDC officials that it was likely to polarize debate about governmental authority. They urged CDC
and the academic lawyers it commissioned to write the draft to issue it as a discussion paper and list of suggestions
rather than as a model for legislation.
State officials recalled recent debates that required them to weigh advocacy on behalf of the health interests of
populations against militant defense of liberty and property rights. These debates had addressed policy for
regulating managed care to assure the optimum distribution of scarce resources, the use of the best available
evidence in making coverage decisions, and the use of information about individuals collected by hospitals and
Controversies about managed care, coverage and information informed the history of the Model Act in 2002
and 2003. Most of the leaders in general government who introduced legislation based on the Model Act
encountered strong opposition from interest groups of the left and the right on behalf of civil liberties and from
hospital associations concerned about the state's use of their property during emergencies. Several states adopted
provisions of the Model Act. More insisted that their existing statutes were entirely adequate. In some states,
leaders of general government decided that pressing to modernize public health statutes would open them to
In one state, the governor and legislative leaders wrote regulations to govern action in health emergencies
and, as a legislator reported, “placed them in the top drawer of the Governor's desk in case they were needed.”
*612 STATE SPENDING FOR THE EXPANDING
SCOPE OF HEALTH POLICY
In the months before September 11th, leaders of major organizations of state officials finalized the
methodology of a national study to provide the first systematic accounting of spending for the expanding scope of
policy for health. This study, like its two predecessors on state spending for direct health services, had implications
for the law under which state funds are authorized and appropriated. (25)
Data in the first two reports in the series
compel revision of the conventional wisdom that spending to maintain and improve the health of Americans is
primarily a private sector activity, with the public sector having a residual responsibility. The National Health
Accounts (NHA), published annually by the federal government for over four decades, have found that public
spending is between 40 and 45 percent of total spending for health care. The first two reports in the state officials'
series contradicted the NHA numbers for state spending. On examining this discrepancy, state officials learned that
the NHA counted all spending for public employees' health coverage in the private sector. Then they learned that
the NHA, contrary to the implications of the Congressional Budget Act of 1974, counts as private rather than
public spending federal tax expenditures for health benefits (income tax foregone as a result of spending by
employers and employees). The state officials' data reveals that public spending for health services is at least 60
percent of the total. (26)
Since leaders of state government, as a matter of custom, only make large pronouncements
that have immediate practical implications, they did not trumpet this finding. Some of them noted the implication
of the first two studies that the public sector has gradually and without publicity assumed most of the financial
responsibility for preventing and treating illness and injury. A few remarked on the absence of a coherent policy
and legal framework for carrying out this enlarged responsibility. Instead of pronouncing, they expanded their
survey of state spending in order to learn how much states spent to improve and maintain the health of populations
in addition to spending for direct services.
A committee of state leaders, chaired by a past President of the National Association of State Budget Officers,
devised a working definition of population health spending based on the accounting conventions used by most
states. The committee used the criterion of plausibility to officials of general government to categorize expenditures
as either direct health services, population health, or not health-related. The test for plausibility was whether
leaders in general government believed that their constituents would understand why they had placed an
expenditure in a category.
The plausibility criterion, which exemplifies the politics of the expanding scope of health policy, appalled two
groups of people. One group were academic experts, who insisted that the definition of policy for the health of
populations should follow from research about what determines health status, not from the demands of electoral
politics. For example, a researcher, in a conversation with me, criticized the plausibility criterion for ignoring what
she considered obvious, “The entire state budget is population health.” This remark perplexed leaders in general
government when I quoted it to them. If the entire budget is about health, they agreed, there are no elements of the
budget to defend or augment in order to promote health.
State and local health officials also attacked the plausibility criterion and challenged the ability of budget
officers and legislators to define health expenditures and count them accurately. Early in September 2001 the new
presiding officer of the Association of State and Territorial Health Officials told his colleagues that he was helping
to design the state officials' study.
The next day, I received similarly worded email messages from approximately eighty state and local health
officers. They said that public health officials are the only persons qualified to conduct such a study and especially
to determine the criteria for defining population health. My form reply to these form messages explained a
significant difference between general and specialized government. Many public employees have opinions about
state spending, I wrote, but the numbers that guide policy are those that budget officials in the executive and
legislative branches agree on.
The study compiled data from the states for fiscal years 2000 and 2001. As it had done in the first two
editions, it reported spending for health care: Medicaid, State Children's Health Insurance Program, state
employees health benefits, corrections, higher education, state insurance and access expansion, direct public health
care, state facility-based services, and community-based direct services (for example, substance abuse treatment,
vocational rehabilitation and mental health).
The state officials reported spending for population health other than health care in categories based on the
plausibility criterion that they had developed in committee and field-tested in ten states. These categories included:
prevention of epidemics and the spread of disease, protection against environmental hazards, injury prevention,
promotion of chronic disease control and encouragement of health behavior, disaster preparation, disaster response
and health infrastructure (which includes public health department administration, licensure and certification of
facilities, vital records and laboratories).
SPENDING CATEGORIES AND THE LAW
The report compiled by the legislators and budget officials is the only description of the current scope of health
policy that has been endorsed by leaders in general *613 government. As a result, it could inform an agenda for
persons who work in health law. Such an agenda would take account of two characteristics of these categories. The
first is that when persons in general government define the scope of health policy, they do not dichotomize services
for particular individuals and interventions on behalf of populations. Persons in general government are allocators
rather than advocates. They are interested in how spending across as well as within these categories affects their
constituents. Specialists in public health who want to inform health policy could have incentives to abandon
conventional definitions of public health responsibilities and functions that are enshrined in textbooks and
The second characteristic of these categories is that, although persons in general government are willing to
expand the scope of health policy, there is a limit to how far they will expand it. Although these leaders
understand, for example, that income and health are related they do not include the cost of state employee pension
systems within health policy. Similarly, they are not ready to agree that the growing body of evidence linking
aspects of policy for child development with better health status across the life span justifies trying to count as
health expenditures some of what they budget for early childhood services and education.
The categories of health spending in the report suggest a contemporary definition of the duty of government to
maintain and improve the health of populations. There is considerable work to be done by health lawyers in
describing how this definition relates to duties described and implied in constitutions, statutes and case law.
The principal lesson from the events I have described in this essay is that persons who draft and craft law and
regulations for health policy could profitably re-characterize their subject. Persons who practice public and
population health law could join lawyers working in other aspects of health affairs to address the law of health
This change of emphasis would have profound consequences for persons who have worked primarily on a
particular aspect of health law. Most important, improving and maintaining the health of populations would have
high salience in a revised law of health policy. A revised law of health policy would, for instance, accord more
attention to how law and regulations about long term care affect the health of populations of seniors and other
persons with disabilities, or to how the regulation of the price and coverage of health insurance effects the health
status of particular populations. Health policy lawyers would be concerned about both the privacy of patients'
records and prescriptions and making information about patients available for research and surveillance. They
would be sensitive--here I indulge a fantasy--to scientists' definition of population-based evidence in rule making,
in coverage appeals, and in tort litigation. (27)
Persons in specialized government have strong incentives to respect
the perceptions and priorities of the persons in general government to whom they are accountable. Policy is the
result of negotiations among persons in general government and between them and representatives of interest
groups. In conducting these negotiations persons in general government use the best knowledge available to them
in the context of the preferences and political salience of interest groups and, over-riding all other opinions, of
1. Mary Kramer, remarks during plenary session “From Public Health to Population Health: How Law Can
Redefine the Playing Field,” Centers for Disease Control and Prevention Public Health Law Conference (June
2003). Forthcoming, supplementary issue, Journal of Law, Medicine and Ethics.
2. D.M. Fox, Power and Illness: The Failure and Future of American Health Policy (Berkeley: University of
California Press, 1993 and 1995): 113-141. In this chapter I describe the concepts that I now characterize with the
phrase general government and give sources for them. More important, this chapter has been read by a number of
persons in general government who have told me that I accurately described how they think and act.
3. For reviews of sources on the determinants of health see D. Porter, Health, Civilization and the State: A History
of Public Health from Ancient to Modern Times (London and New York: Routledge, 1999); and J.C. Riley, Rising
Life Expectancy: A Global History (Cambridge, UK and New York: Cambridge University Press, 2001).
4. For the UK, A. Oakley, Man and Wife: Richard and Kay Titmuss; My Parents' Early Years (London:
HarperCollins, 1996). For the left interpretation of the data in the US as an exemplary source is J.B. McKinlay and
S.M. McKinlay, “The Questionable Contribution of Medical Measures to the Decline of Mortality in the United
States in the Twentieth Century,” The Milbank Memorial Fund Quarterly/Health and Society, 55 (1977):
5. S.R. Johansson, “Food for Thought: Rhetoric and Reality in Modern Mortality History,” Historical Methods, 27
(1994): 101-125; S. Szreter, “Rethinking McKeown: The Relationship Between Public Health and Social Change,”
American Journal of Public Health, 92 (2002): 722-725.
6. S. Szreter, “The Importance of Social Intervention in Britain's Mortality Decline, c. 1830-1914: A
Reinterpretation of the Role of Public Health,” Social History of Medicine, 1 (1988): 1-37; Anne Hardy, The
Epidemic Streets: Infectious Disease and the Rise of Preventive Medicine, 1856-1900 (Oxford: Oxford University
Press, 1993). For other citations see Riley, supra note 3, 58-80.
7. D.M. Fox, R.J. Jackson, and J.A. Barondess, “Health and the Built Environment; G.W. Evans, “The Built
Environment and Mental Health;” M.E. Northridge, E. D. Sclar, and P. Biswas, “Sorting Out the Connections
Between the Build Environment and Health: a Conceptual Framework for Navigating Pathways and Planning
Healthy Cities”; A.V. Diez Roux, “Residential Environments and Cardiovascular Risk”; H.V. Savitch, “How
Urban Sprawl Shapes the Human Being,” Journal of Urban Health/Bulletin of the New York Academy of
Medicine, 80 (2003): in press.
8. J.P. Bunker, H.S. Frazier, F. Mosteller, “Improving Health: Measuring Effects of Medical Care,” The Milbank
Quarterly, 72 (1994): 225-258; R. Evans, M. Barer, and T.R. Marmor, Why are Some People Healthy and Others
Not? (New York: Aldine De Gruyter, 1994); D.A. Kindig, Purchasing Population Health: Paying for Results (Ann
Arbor: University of Michigan Press, 1997).
9. S. Szreter, “Economic Growth, Disruption, Disease and Death: On the Importance of the Politics of Public
Health,” Population and Development Review. 23 (1997): 693-728; S. Szreter and G. Mooney, “Urbanization,
Mortality and the Standard of Living Debate,” Economic History Review, 50 (1998): 84-112.
10. F. Mesle, J. Vallin, and V. Shkolnikov, “Reversal of Mortality Decline: The Case of Contemporary Russia,”
World Statistics Quarterly, 51 (2000): 191-206; M. McKee, V. Shkolnikov, “Understanding the Toll of Premature
Death Among Men in Eastern Europe,” British Medical Journal, 323 (2001): 1051-1054.
11. Jeanne Daly, Evidence-Based Medicine and the Search for a Science of Clinical Care (Berkeley: Milbank
Memorial Fund and the University of California Press): in press.
12. I. Chalmers, L.V. Hedges, and H. Cooper, “A Brief History of Research Synthesis,” Evaluation and the Health
Professions, 25 (2002): 12-37; Morton Hunt, How Science Takes Stock: The Story of Meta-Analysis (New York:
Russell Sage Foundation, 1997).
13. P.D. Cleary, D.M. Fox, eds. “Effective Care in Pregnancy and Childbirth,” The Milbank Quarterly, 71 (1993):
14. U.S/U.K. Purchasers Group, Better Information, Better Outcomes? The Use of Health Technology Assessment
and Clinical Effectiveness Data in Health Care Purchasing Decisions in the United Kingdom and the United
States (New York: Milbank Memorial Fund, 2000): D.A. Kindig, ed., Value Purchasers in Health Care: Seven
Case Studies (New York: Milbank Memorial Fund, 2001).
15. The Reforming States Group, “State Initiatives On Prescription Drugs: Creating a More Functional Market,”
Health Affairs, 22 (2003): 128-136; D.M. Fox, A. Oxman, eds, Informing Judgment: Case Studies of Health Policy
and Research in Six Countries (New York, Milbank Memorial Fund and the Cochrane Collaboration, 2001).
16. John E. McDonough, Proactive Hazard Analysis and Health Care Policy (New York: Milbank Memorial Fund
and ECRI, 2002): M.R. Taylor, M. O'K. Glavin, J.G. Morris, Jr., and C.E. Woteki, Food Safety Updated:
Developing Tools for a More Science-and-Risk Based Approach (New York: Milbank Memorial Fund and
Resources for the Future, 2003).
17. J.West, ed., “The Americans with Disabilities Act: From Policy to Practice,” The Milbank Quarterly, 69
(1991): vii-xxxi, 3-360.
18. I.K. Zola, “Toward the Necessary Universalizing of a Disability Policy,” The Milbank Quarterly, 67,
Supplement (1989): 401-428.
19. J. West, ed., Implementing the Americans with Disabilities Act (Cambridge, MA: Blackwell Publishers and the
Milbank Memorial Fund, 1996).
20. Olmstead v. L.C., (98-536) 527US 581C 1999.
21. A. Brundage, The English Poor Laws, 1700-1930 (Houndmills, Basingstroke, Hampshire, UK: Palgrave,
2002): 96-98, 147; L.H. Lees, The Solidarity of Strangers: The English Poor Laws and the People, 1700-1948
(Cambridge, UK, Cambridge University Press, 1998): 278; Simon Szreter, “Health, Economy, State and Society in
Modern Britain: The Long-Run Perspective,” unpublished manuscript, July 2003.
22. J.C. VanDerhei, C. Copland. “Can America Afford Tomorrow's Retirees: Results From the EBRI-ERF
Retirement Security Projection Model,” EBRI Issue Brief no. 263, November 2003 (Washington, DC: Employee
Benefit Retirement Institute); J.C. VanDerhei, C. Copland, “Kansas Future Retirement Income Assessment
Project,” Third Draft, July 16, 2002, and “Massachusetts Future Retirement Income Assessment Project,” Third
Draft, December 1, 2002, available at <www.ebri.org>.
23. See Letter from T.G. Thompson to Governors, January 31, 2002, accompanying HHS News, “HHS Announces
$1.1 Billion in Funding to States For Bioterrorism Preparedness,” January 31, 2002, available at <
24. J.M. Colmers, D.M. Fox, “The Politics of Emergency Health Powers and the Isolation of Public Health,”
American Journal of Public Health, 93 (2003): 397-399.
25. National Association of State Budget Officers and the Reforming States Group, 2000-2001 State Health Care
Expenditure Report (New York: Milbank Memorial Fund, National Association of State Budget Officers, the
Reforming States Group, 2003).
26. D.M. Fox, P. Fronstin, “Public Spending for Health Care Approaches 60 Percent,” Health Affairs, 19 (2000):
27. D.M. Fox, P. Fronstin, “Public Spending for Health Care Approaches 60 Percent,” Health Affairs, 19 (2000):