Genesis of the Modern Public Health Emergency

The legal premise of PHEs as a distinct type of threat emerged from the aftermath of the terrorist attacks and anthrax exposures in 2001.^{Reference Marmagas, King and Chuk1} The specter of bioterrorism led government officials to retool their antiquated, generic emergency powers to include a bevy of more precise public health authorities. The Model State Emergency Health Powers Act (MSEHPA), finalized in December 2001, was passed by dozens of state, tribal, and local governments over multiple years.^{Reference Hodge2} Under definitional criteria in MSEHPA, a PHE may be declared in response to an act of bioterrorism, emerging infectious disease, or other threat posing a “high probability” of a significant number of deaths, disabilities, or future harms to health.

PHEs have since been declared in response to multifarious conditions, including contagious diseases like H1N1 (2009),³ Ebola virus (2014),⁴ and Zika virus (2016).⁵ Warranted declarations authorize and facilitate advanced surveillance, treatment, and social distancing measures to quell emerging threats. PHEs have also been appropriately declared in response to natural disasters impacting human lives such as hurricanes Katrina (2005), Sandy (2012), and Harvey (2017).⁶ Yet, the legal boundaries of PHE declarations have been stretched to include many other conditions, including water contamination, asbestos releases, domestic violence, food insecurity, homelessness, opioid use, vaping, and even temporary shortages of medical cannabis.^{Reference Hodge, Wetter, Chronister, Hess and Piatt7}

American Public Health “Crises”

Coexistent with the expansion of formally declared PHEs is a national propensity to cloak just about any health hazard in emergency terms. Increasingly government officials, academics, media, and others are defining and classifying varied public health threats as “crises,” “tragedies,” “emerging threats,” “catastrophes,” and “epidemics” (see Table 1. Select Examples of Public Health “Crises”in the Media). The scope of conditions attracting eye-catching labels ranges from chronic/communicable conditions to racial concerns. While some of these topics might also justify formal emergency declarations initially or later, most would not under current legal standards. This is especially true concerning more sensational “crises” such as microaggression (2015),^{Reference Timpf8} decreased sperm counts (2017),^{Reference Gussone9} video game addiction (2018),^{Reference Stock10} and skin bleaching (2018).^{Reference Onyeka and Abajue11}

Table 1 Select Examples of Public Health “Crises” in the Media (from 2015-2019)

Communicable and chronic conditions are often framed ambiguously as emergencies. Infectious diseases like measles and mumps are consistently characterized as crises as they emerge as outbreaks in under-immunized locales. Preventable conditions including diabetes and obesity are cast as serious threats given their enormous costs and disproportionate impacts.^{Reference Porter12} Politically-sensitive reproductive health topics, including restrictive abortion access, under-reported acts of intimate partner violence, and spikes in maternal mortality rates, are apt to be labeled as health threats. Government officials in more than a dozen states have characterized pornography and its links to violence as a public health crisis, leading some opponents to allege “complete fear-mongering.”^{Reference Whitehurst and Cooper13}

High on the list of public health catastrophes are polysubstance addictions, abuses, and correlated overdose deaths. Prevalence of prescription and illicit opioids is rightfully deemed an epidemic but is also juxtaposed against efforts to limit opioid prescriptions for millions suffering from a “crisis” of chronic pain.^{Reference Fiore14} Marijuana and nicotine consumption (including youth vaping and e-cigarette use) have been deemed emergencies as deaths due to associated cancers and other diseases rise. Decades of over-prescribing and misuse of antibiotics have led to a crisis of resistant strains of bacteria infecting thousands of Americans annually.^{Reference Joszt15}

Perceived mental health tragedies heighten awareness for hidden conditions like dementia, loneliness,^{Reference Fielding16} and childhood trauma,^{Reference Blakemore17} linked to adverse health outcomes such as decreased resistance to infection, cognitive decline, and disease susceptibility. Dramatically increasing suicide rates have been called a “neglected”^{Reference Greenhouse18} and “unseen”^{Reference Bible19} epidemic affecting public health^{Reference Carey20} and national security.^{Reference Deboer21} While physician burnout threatens doctor-patient relationships and delivery of health care,^{Reference McCluskey22} a co-existing primary-care shortage “crisis” flows from millions of Americans lacking proper access.^{Reference Colgan23}

Environmental concerns stoked by climate change implicate disease, unsanitary conditions, poor air quality, and food insecurity, consequently lending to classifications such as “major emergency”^{Reference Cheney24} and “catastrophe.”^{Reference Weise25} Novel health concerns underlying systemic racism contribute to a health disparity “crisis.”^{Reference Spicuzza26} Even proposed census citizenship questions are deemed a public health threat to the extent select communities may decline to respond resulting in inaccurate or incomplete population health data.^{Reference Cohen, Ross, Cozier and Galea27}

Palpable Threats to the Public's Health

Lost in the forest of public health crises and catastrophes is the disconnect between perceived, fast-moving health perils and often overlooked, entrenched threats that pose more substantial societal harms. Over two-thirds of American adults are over-weight or obese.²⁸ Hundreds of thousands have terminal cancers or heart disease, many from tobacco use.^{Reference Benjamin, Blaha, Chiuve, Cushman, Das and Deo29} Alcoholism rates among Americans have climbed recently along with opioid misuse.³⁰ Alzheimer's disease and dementia rates are on the rise, affecting millions of Americans.³¹ Tens of thousands will die this year from vehicular collisions. These conditions may be known by Americans as substantial killers, but also viewed as intractable, even unsolvable. As illustrated in select examples below, some of the greatest public health threats persist despite proven legal interventions that could be taken to address them.

Refocusing Law and Policy Responses

Shifting the national foci from attention-grabbing “public health crises” to sustained causes of excess morbidity and mortality is complicated. Individuals are naturally attracted to news or warnings of immediate harms or perceived threats irrespective of their likelihood or significance. Politicians are apt to employ “quick fixes” to quell identified risks to gain temporary favor among constituents. Consequently, long-standing threats to health — cancers, heart disease, diabetes, obesity, injuries, “consumable vices”^{Reference Hodge42} — inch along, year after year, causing substantial disabilities and shortening lives. Reversing a trend of lowered life expectancies for the current generation of Americans justifies a series of law and policy objectives designed to:

• look well beyond short-term determinations of public health crises. Crises labels may raise the public's threat awareness, but should not create an agenda for a national public health system;

• retool PHE legal classifications to assure actual declarations are meaningful and justified. Declarations are legitimated by the responsible and balanced use of public health powers to address emerging risks to health, and not through their misapplication to sensationalized identification of exigencies;

• assess and remedy the underlying social determinants of health. Sophisticated health systems should devote considerably greater resources upfront to address the root causes of poor health outcomes, instead of waiting to treat their manifestations;

• commit to principles of health justice to fairly allocate limited public health resources across populations without biases lending to inequities; and

• prioritize public health prevention as a panacea to engrained causes of excess morbidity and mortality. Within the realm of PHEs, pre-paredness is viewed as equally critical as real-time responses to obviate risks to populations. Preparedness in response to long-standing health risks is all about prevention. Extant public health legal tools (e.g., surveillance, screening, testing, education, vaccination, health education) can be wielded to effectuate purposeful modern prevention strategies. What is needed is the national foresight and commitment to fund and utilize these tools efficaciously.