Guest post by Maxwell J. Mehlman
In a November article for the New England Journal of Medicine, Harvard law professors Michelle Mello and Glenn Cohen argue that in upholding the Affordable Care Act’s individual insurance mandate as a tax the Supreme Court “has highlighted an opportunity for passing creative new public health laws.” As a bioethicist who writes extensively on the question of coercive public health this troubled me on several fronts. In this case, Mello and Cohen give an example of the laws that they have in mind: higher taxes on people whose body-mass index falls outside of the normal range, who do not produce an annual health improvement plan with their physician, who do not purchase gym memberships, who are diabetic but fail to control their glycated hemoglobin levels, and who do not declare that they were tobacco-free during the past year.
Some of these suggestions seem ineffectual. It’s hard to imagine what the public health benefit would be from rewarding people for making a health-improvement plan without having to follow it or for joining a gym without having to use it. As for swearing off the use of the “pernicious weed,” aside from being unenforceable, it is too reminiscent of the loyalty oaths of the McCarthy era to be taken seriously.
The other taxes that Mello and Cohen describe are problematic for other reasons. Their underlying assumption that, by adopting healthier lifestyles, individuals can successfully alter their body-mass index, is belied by the overwhelming mass of data showing that weight-loss produced by lifestyle changes tends to be modest and short-term. Furthermore, in light of increasing evidence that obesity is associated with variations in certain genes, such as FTO and BDNF, making people with genetic predispositions to obesity pay more taxes than others is unfair and, if not now an illegal form of genetic discrimination, should be made so. As for glycemic control, adherence to a control regime is especially difficult for populations adversely affected by health disparities, and it seems unfair to add higher taxes to their already disproportionate burdens.
Mello and Cohen state that the law should be used as an “assertive intervention” to induce healthful lifestyle changes. But how “assertive” do they think the law should be? The constitutionality of U.S. public health laws rests on a 1905 Supreme Court case, Jacobson v. Massachusetts, which upheld the imprisonment of a Cambridge, Massachusetts, resident who refused to pay a fine after he resisted efforts to vaccinate him against smallpox. Would Mello and Cohen advocate fining and jailing people who did not follow their wellness regime?
The wellness movement is reminiscent of the attitude of Republicans during the recent presidential campaign that people can overcome poverty simply by pulling themselves up by their bootstraps, and that those who don’t are slackers. A majority of voters, recognizing the obstacles that bedevil exercises of the will in the real world, rejected this view. Is there any reason to give it any greater credibility when it comes to health?
Maxwell J. Mehlman is a professor of bioethics, the Petersilge Professor of Law, and director of the Law-Medicine Center at Case Western Reserve University. He has written several books about genetics, law, and society, including The Price of Perfection: Individualism and Society in the Era of Biomedical Enhancement and Transhumanist Dreams and Dystopian Nightmares: The Promise and Peril of Genetic Engineering.