This was published in The Huffington Post on August 23, 2011.
Last week, the 11th Circuit Court of Appeals declared the individual mandate of the Affordable Care Act (ACA) invalid, and now some people are changing their bets about whether the Supreme Court will put the issue on its docket for next session.
But what no one is talking about is the curious bind this opinion puts on the 26 state plaintiffs, who brought the suit the 11th Circuit reviewed, and especially Governor — now Republican Presidential candidate — Rick Perry. The phrase that rings the warning bell is: “Numerous Supreme Court decisions have identified the regulation of health matters as a core facet of a state’s police powers.”
You read that right: A state’s police powers.
A state’s ability to use its police powers to protect the health of its citizens has never been in dispute. This goes back to the historic Jacobson v. Massachusetts decision. In 1905, the Supreme Court upheld the authority of the Cambridge, Massachusetts Board of Health to require its residents to be vaccinated against smallpox, thereby protecting the health of the community as a whole from a smallpox outbreak.
Yet, while the popular interpretation of the 11th Circuit ruling and the political battle cry of Governor Perry and other Republican Presidential nominees is to say “You can’t make me!”, it is clear in last week’s opinion that the state can make you. While the federal government, as part of the Commerce Clause, may or may not be able to force Americans to purchase health insurance, a state can.
Dial forward to 2007 when Texas Governor Rick Perry signed an executive order requiring sixth-grade girls in the state to obtain a human papillomavirus (HPV) vaccine, which prevents cervical cancer, before being allowed enrollment in public schools.
While the Texas Medical Association did not take a position on the executive order, Dr. Bill Hinchey, then president-elect of the Texas Medical Association told the Austin Statesman in February 2007 what public health professionals, physicians and the general public already know: “A vaccine is a much less expensive method to do that than treating cervical cancer.”
And, as was argued in Jacobson, vaccines are not only cheaper, they also save lives.
In Texas, Perry included an opt-out mechanism allowing parents to decide against vaccinating their daughters; however, this provision was not enough to quell opponents, who were essentially saying, “You can’t make me!”
Perry’s HPV vaccination decision was overridden by the state legislature in 2008. Now, as an official presidential candidate, he is changing his tune. In 2007, he forcefully argued the classic public health stance that the benefits of preventing cervical cancer outweighed any risks associated with the vaccine. On Monday, however, Governor Perry told a Des Moines radio station “That particular issue is one that I readily stand up and say I made a mistake on.” He went on to explain that the mistake was not to listen to the people of Texas.
Numerous Supreme Court decisions have made clear that regulation of health matters is a core facet of states’ police powers. Thankfully so! While it might be politically popular to tell people, “the government can’t make you,” that promise doesn’t work in reality. Public health injury prevention provides a good example: Government policies that established speed limits, seat belt laws, and child seat requirements resulted in 90% decrease in traffic deaths. Add to these requirements for automobile insurance, bicycle helmets for kids, anti-drug laws, age limits for alcohol use, and many other examples of how states can exercise its police powers to protect its citizens’ health. These aren’t just useful public health tenets — they protect Americans and save lives.
As the presidential race heats up and the Circuit Court opinions pile up, a majority of governors are demanding that the federal government not tell them what to do when it comes to health care. Will these states take their powers seriously and advocate for better health for their residents? Or will they follow Perry’s path and simply let everyone in their state do whatever they please… high rates of uninsurance, poor access to healthcare, and cervical cancer be damned? For the sake of public health, let’s all hope Perry’s is the road less traveled.