When Is “Good Enough” Not Good Enough? Making Public Health Policy in Politically Contentious Times
October 5, 2022
As lawyers who care about public health, we hope for sound public health law and policy that is based on robust epidemiological evidence. But often the reality is a patchwork of provisions based on compromise, or no law at all. Compromise in public health lawmaking is often inevitable and even desirable in a democratic society. But is it ethically problematic to support a policy that the public believes is in place because it is protective when the evidence doesn’t support that conclusion? As public health lawyers, should we be satisfied that at least something is being done or remain firm in our support that only proven or effective policies should be passed?
As lawyers who care about public health, we hope for sound public health law and policy that is based on robust epidemiological evidence, evaluated regularly, and revised according to evidence of effectiveness and any unintended consequences. But often the reality is a patchwork of provisions based on compromise, or no law at all. Researchers and advocates across the field of public health struggle with policies that fall short of what the science indicates would be most beneficial. Is “good enough” ever not good enough?
Many factors, including political palatability, cost, and human resources, interfere with legislative bodies or executive agencies passing laws or implementing policies that are demonstrably optimal based on prevailing medical or epidemiological evidence. As a result, public health and safety proponents must consider what the public will tolerate when balancing the evidence with political will and individual liberties. For example, we’ve known for a long time that no amount of tobacco use is safe but bans on the sale of cigarettes are politically unfeasible.
Similarly, research shows that prohibiting tackle football for players under age 14 would prevent cumulative brain damage that can lead to chronic traumatic encephalopathy and other degenerative brain diseases for these athletes over their lifetimes. Advocating for such a ban in Texas would be like trying to ban high school basketball in Indiana.
Studies of graduated driver licensing (GDL) laws show that the benefit of supervised driving hours (if there is one) begins at 100 hours, but only one state (Oregon) requires 100 hours and only for those who did not attend driver education. Most states only require that drivers-in-training spend between 40 and 60 hours in supervised driving. Is that good enough? The evidence points to no. In fact, the recently enacted Bipartisan Infrastructure Bill eliminated Section 405(g), a longstanding provision that would have provided funds to states that reached certain thresholds for GDL programs—thresholds set by the National Highway Traffic Safety Administration based on prevailing evidence. No state ever qualified. And good enough was not good enough.
Too often there is an assumption that something is better than nothing—that public health can take “baby steps” toward more ideal public health policies. The alternative, for example, is no supervised practice requirement for novice drivers at all. Return-to-play laws in all 50 states and D.C. are better for athletes’ long-term health than the totally unregulated landscape of youth sports we had in the past. A reactive rental property inspection program is better than no inspection program at all, even if it only serves as a deterrent for some bad actors. Background checks and storage requirements are better than no gun restrictions at all.
But is it ethically problematic to support a policy that the public believes is in place because it is protective when the evidence doesn’t support that conclusion? As public health lawyers, should we be satisfied that at least something is being done or remain firm in our support that only proven or effective policies should be passed? There may be times when “good enough” truly is not good enough—when doing nothing would be better for public health than doing something less than what the evidence supports.
For example, tobacco control advocates supported a 2020 Maryland bill that would have banned flavored tobacco products, including vape cartridges, which have been shown to entice children. However, the amended version of the bill would have allowed a loophole for menthol-flavored tobacco products, which are disproportionately consumed by and marketed to people of color. Tobacco control advocates saw this as unacceptable and withdrew support of the bill. This example illustrates that “good enough” policies often serve only those who already benefit from better health, safer communities, better housing, higher education, and better health.
On the other hand, evidence-based public health policies can also exacerbate inequity: requiring 100 supervised practice hours and a costly driver education class for obtaining a driver license places inherent burdens on kids with busy single parents and limited income.
Compromise in public health lawmaking is often inevitable and even desirable in a democratic society; open discourse can help garner public support and identify unintended consequences or problems. But when is “good enough” truly good enough? To answer this question, we may need a framework that considers all factors at play: the epidemiological and medical evidence, political palatability, cost, human resources (enforceability), existing structural bias, and the ethical and real consequences of compromise.
We’d love to hear from you…what do you think? When is “good enough” truly good enough, and when is it not? Email me at email@example.com.
This post was written by Kerri McGowan Lowrey, J.D., M.P.H., Deputy Director and Director for Grants & Research, Network for Public Health Law— Eastern Region Office.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.