The Potential for State Attorneys General to Promote the Public’s Health: Theory, Evidence, and Practice, Lainie Rutkow, Stephen Teret, Saint Louis University Public Law Review (2010)

Research and Journal Articles

This article makes the case that State Attorneys General (SAG) have considerable legal powers to protect the public's health, yet their role in the development of health policy is often under-appreciated or misunderstood. The authors assess typical powers relegated by law to state Attorneys' General and how the use of these powers can lead to the protection and promotion of the public's health. While the specific powers a particular state's Attorney General has will vary from one jurisdiction to another, there are certain typical powers that provide advocates with opportunities to leverage in the fight against policies which undermine the public's health.

The authors illustrate the potential public health impact of Attorneys General through four case studies (e.g., the state tobacco litigation cases to recover expended Medicaid funds for treatment of smoking-related health problems).  However, the discussion of the role of a SAG in the enforcement of state criminal law and investigative activities that explore issues of substantial public interest may be useful thought fodder for advocates, for developing proposals for SAG intervention in critical HIV-related issues.  Issues advocates could ask their SAG to take on could include, for example, the misuse of the criminal law to target the sexual conduct of people with HIV/AIDS, or other enforcement policies that more severely affect marginalized communities, with negative public health consequences.

In the area of law and policy reform, a SAG often is called upon to provide advice to the governor and administrative agencies, and this advice can relate to any legal or policy issue.  Related to this power is the development and issuance of a SAG written opinion, typically solicited by the governor or a state agency.  Although not legally binding, a SAG opinion is afforded considerable weight by state officials as well as by the courts.  In the area of criminalization, it might be possible to secure an Attorney General opinion on the extent to which HIV-specific laws and prosecutions violate the letter or spirit of state and/or federal disability rights laws and policies. 

Another avenue of SAG law or policy reform is through the promulgation of legally binding regulations on areas related to criminal law enforcement and related public health issues. 

The SAG's access to the "bully pulpit" is a formidable tool for securing action, for better or for worse (e.g., witness NY gubernatorial candidate Andrew Cuomo's call for the continued civil commitment of Nushawn Williams, a young man incarcerated for 11 years for statutory rape and reckless endangerment after it was discovered that several of his sex partners were, like him, HIV positive.).  Of course, depending on the empathy and courage of the SAG in question, the bully pulpit can be a very effective way to promote a different, more enlightened approach to sexual conduct that can transmit HIV.

 

It is important to remember that most SAG are elected, and so they are likely to be influenced by perceived voter preferences and prejudices.  Political or personal self-interest, personal beliefs and values –  any of these can influence the likelihood that a SAG will take on an important public health issue, particularly if that issue is complex or likely to provoke strong reactions from members of the public.  These factors need to be understood and weighed in determining whether and how to pursue public health-related policy reform through a call on the SAG to exercise powers to address matters of public importance.