Beyond Paternalism: Rethinking the Limits of Public Health Law Response

This response to David Friedman’s Public Health Regulation and the Limits of Paternalism challenges his claim that the rejection of paternalism creates a “limit” on public health law’s potential for addressing the obesity epidemic and offers a defense of public health laws as exercises of self-governance. The Article begins by showing why many of the laws that Friedman classifies as paternalistic are not actually paternalistic. Nor are most public health laws as unpopular as Friedman presumes. Moreover, the public’s disapproval of some public health laws may be due to factors other than their paternalism, including their origination at times by out-oftouch public health agencies.

Public health laws, the Article argues, can be justified as an exercise of self-governance; they should be the laws that populations enact to protect their own health. When officials act without regard to that popular foundation, as the New York City Board of Health did in banning the sale of large portions of sugary soda, a backlash may follow whether or not the law is paternalistic. Thus policymakers should worry less about whether a proposed law is paternalistic and more about whether it is responsive to the needs and concerns of the population it seeks to protect.