But isn’t food safety a pressing concern, a public-health problem we can’t afford to fool around with? Problem is, the problem isn’t. Emotional rants that “thousands die every year!” do not help us grapple with the scope or magnitude of this alleged threat. Let’s try some perspective: According to the Centers for Disease Control, the estimated number of deaths caused by foodborne illness falls between 5,000 and 8,000 a year (down a substantial 35 percent, by the way, from ten years ago). Sounds pretty bad, eh? Time to call in the Salmonella SWAT team? Before you do, consider that the same number of people die by intentionally strangling themselves each year. Or that the same number of people die from Alzheimer’s in California alone each year. Or that four times that number die each year accidentally falling off of things. Moreover, 70 percent of foodborne illness (and presumably deaths) results from poor food-handling procedures during preparation, not from poor food-production practices. The number of people we’re attempting to save with this kind of legislation, in a cosmic feat of irony, is significantly lower than the number of people who die each year from malnutrition (known in the business as “starving”).

Unless you’re also on a crusade to flatten everything, I’d think twice about ceding greater authority over our food system to centralized management.

True to form, Congress has blithely offered its professional problem-solving services to rid us of the menace of deadly food. And, true to form, it’s about to embark on another unarmed expedition into the tortuous territory of unintended consequences.

Adding more regulations to a sector always reduces the number of operators in that sector. It can be dramatic (as in the case of the payday loan industry), or it can be insidious (as in the case of the livestock industry). The food industry is no exception; it’s impossible to envision a wave of enthusiastic newcomers clamoring at the gates to enter the food business now that the FDA has been granted the most sweeping extension of its powers in 70 years. Granted, some of the bad actors need to be pushed out of the industry (as in the Peanut Corp. of America, which apparently intentionally distributed salmonella-laced product). Call me a Pollyanna, but I don’t think the bad actors generally represent the food industry. The people who do represent a large part of the industry are the small, local, independent operators who have been squeaking by for decades. This kind of regulatory barrage is exactly the sort of thing to make them call it quits. BSE (mad cow) regulations pushed my predecessor at the meat-packing operation I own to hang up his hat. The increasing silliness over E. coli testing pushed his predecessor over the brink years ago. Warranted or not, an increasingly difficult regulatory environment will always winnow out the small players, leaving the field more sparse than before.

Fewer Hands

Of course the demand for food hasn’t gone down, so how does the system accommodate a hungry public? Well, that’s where Cargill, Tyson, Monsanto, and the rest of the Big Food set come in. They’re not evil (despite bumper-sticker claims to the contrary); they’re just picking up the slack left when the small guys get pushed out by big government. I know, I know: It’s easier to blame their success on high-priced lobbying and a cozy relationship with regulators. But consider this: The lobbying and cozying can only manipulate government action when government hands are firmly on the wheel of that particular industry.

The unintended consequence in this legislative bid to create safer food is to push more and more production into fewer and fewer hands. As we all know, the more top-heavy a thing gets, the more prone it is to toppling. As Tom Philpott writes, “[T]he real systematic risk of the food system [is] the exponential expansion of hazard that comes from concentrating huge amounts of production in relatively small spaces.”

So is there any solution? If we agree that even one death from foodborne illness is too many (and it is), then how can we aim to squeeze out that lingering menace without artificially exacerbating the very problem we are trying to solve? How can we do to Listeria what we did to malaria in the United States?

I may be waxing heretical, but might I suggest deregulation? Contrary to myth, markets are in fact very good at giving us what we want, even if those things are intangibles like clean air or safe food.

Let me give you an example: As a producer of livestock and owner of a small (very small, according to the USDA) packing house, I know about the raft of bureaucratic “protections” between you and the beef I produce. There is little or no incentive for me to create a remarkably safer production system because my processes are effectively in the hands of our state inspector. The incentive among producers is to win the race toward the bottom, where you can most cheaply and easily meet the minimum standard. Imagine for a moment what the food world would look like if we made food safety a competitive advantage. What if I could demonstrate (through third-party quality assurance, a sophisticated testing regime, or something completely unthought-of as yet) that my beef was quantitatively safer than my competition’s? I suspect that the maligned self-interest of “money-grubbing capitalists” would be instantly harnessed toward the greater public good. I for one would probably behave considerably differently if I were continually striving for the next-higher grade on something like a “Good Housekeeping Seal of Approval” scale instead of aiming simply for the “Inspected—Passed” stamp.

We didn’t regulate malaria out of existence; we simply ensured that millions of empowered individual actors had the information to combat it (that, and some choice applications of DDT). Allowing food processors to compete for customers by marketing their very best possible food-handling practices would have a similar effect.

Regulations are good for imposing minimums, but not for creating excellence. Since our food safety “problem” is clearly in the vanishing margins, excellence is what we need. This can only really be attained when incentives are structured to push our producers (and consumers) to go the extra step to make food as safe as it can possibly be.

Many foodies rightly criticize government meddling in the food sector in the late 1940s for attempting to create cheap food at tremendous ecological and sociological expense. Let us not condone the same mistake under the aegis of “safe food.”

The political movement to ban gun ownership began in earnest in the 1970s. Its partisans relied mostly on emotional appeals rather than on any scientific evidence of the efficacy of banning guns. When the faction’s allies in organized medicine and public health began in the 1980s to publish advocacy research supportive of gun control, gun banners smelled victory.

But two parallel currents in the academy changed everything. First, as constitutional scholars began seriously to study the origins of the Second Amendment, they concluded with near unanimity that the founders meant to affirm an individual right to own and use firearms. Second, a mounting body of criminology research refuted the medical advocacy researchers’ claims that gun owners are unstable, dangerous, and generally responsible for what the advocates called the “disease” of gun violence. The two most prominent criminology scholars disputing the public-health advocacy researchers are John Lott and Gary Kleck. Hemenway directs considerable firepower toward these two, since their work seriously impeaches his own.

One section (Self-Defense Gun Use) reprises a 1997 tussle between Hemenway and Kleck in the Journal of Criminal Law and Criminology over how to determine the frequency of defensive gun uses. This episode, which Hemenway now revisits with apparent gusto, was made possible by the inherent difficulties in studying complex phenomena such as gun ownership and use. Both sides marshal seemingly credible arguments, and one would need graduate-level competency in statistics and econometric modeling to sort out their conflicting claims. Unfortunately, the necessary imprecision of the social scientists’ methods invite the influence of bias. And it is Hemenway’s manifest bias that most characterizes his book.

A disturbing feature is his sprinkling of bigotry between bits of science. In the first chapter he pays brief tribute to typical gun owners being over 40 and in the higher income groups—not exactly a crime-prone demographic. But then quickly come withering deconstructions of the American frontier cowboy (“a hired hand with a borrowed horse, a mean streak, and syphilis”), owners of semiautomatic guns (“more likely than other gun owners to report that they binge drink”), and combat veterans with posttraumatic stress disorder (“likely to kill animals in fits of rage”).

Hemenway is faithful to the public-health creed of guns as pathogens, and his description of this model reveals much about the psychology of public-health activists. Foremost is a nonjudgmental view of human behavior. In the public-health world there are no criminals and no victims. This tenet of progressivism guides the whole public-health anti-gun movement. To acknowledge, for example, a natural right of self-defense would require validating gun ownership and use.

So it’s not surprising that Hemenway gives the public-health treatment to the seventeenth-century classical-liberal philosopher John Locke. Hemenway asserts that Locke’s natural-rights tradition provides little evidence for an individual rather than a collective interpretation of the Second Amendment. He maintains that Locke meant that “rights should be determined and disputes resolved not through private judgment of each individual backed by private force but rather by the public judgment of the community.” Thus does Hemenway in one sentence dispose of the notion that self-defense is a natural right.

Locke’s second treatise, however, is unambiguous on the matter of self-defense. True, Locke’s concept of political society requires resolution of disputes (for example, a highwayman taking a traveler’s money by guile) through the judgment of the community. But in a separate example, the highwayman tries to take the traveler’s money by drawing his sword. In this case, Locke writes, the traveler may use deadly force to defend himself against the highwayman, who has put himself into a state of war with the traveler.

Hemenway’s clear misreading of Locke is proof enough of the author’s blinding bias. It colors his science, his reading of history, and ultimately his credibility as a scientist. One need not be a scientist to observe human nature and to discern how it directs human events. Perhaps social science will someday be free of emotional warp and political prejudice. Until it is, common sense and our political tradition of freedom will serve to guide firearm policy.

History is a chronicle of people clinging to erroneous ideas authenticated as religious or scientific truths. Max Planck (1858–1947), one of the greatest physicists of all time, observed: “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”

In the natural sciences the lifetime of belief in false truths tends to be brief. In contrast, beliefs in false truths in human affairs—in custom, religion, politics, and law—typically linger for decades, centuries, even millennia. “[H]ow can we agree,” declared Mikhail Gorbachev, “that 1917 was a mistake and all the seventy years of our life, work, effort and battles were also a complete mistake, that we were going in the ‘wrong direction’? No . . . it is the socialist option that has brought formerly backward Russia to the ‘right place.’ ”

Gorbachev sought to put a human face on the inhuman visage of communism, and the more he failed, the more he insisted that he was on the right track. American drug prohibitionists—Democrats and Republicans alike—seek to cast the ignoble war on drugs into a noble, therapeutic rhetoric, and the more they fail, the more they insist that they are on the right track.

Coercive world-savers have always been blinded by their reformist zeal. Communists denied the importance of man’s need for private possessions, a propensity they perceived as “property abuse,” and called individuals and institutions that catered to that need “capitalist exploiters.” Drug prohibitionists deny the importance of man’s need for mind-altering chemicals, a propensity they perceive as “drug abuse,” and call individuals and institutions that cater to that need “narco-terrorists” and “narco-states.”

The opium trade is said to constitute one-third or more of Afghanistan’s gross domestic product. People who grow and sell opium, like people who grow and sell olives, are engaged in agriculture and trade not terrorism. Using explosives and herbicides to destroy crops—especially the crops of faraway people with different traditions and religions—is terrorism.

The story of the trade in alcohol in America and the West is familiar, and so also are the medical and social effects of drinking. In the United States alone, intoxicated drivers cause an estimated 17,000 traffic deaths per year, one every 30 minutes. Twenty percent of all traffic fatalities are due to driving while under the influence. The same day that the New York Times ran its report on opium cultivation in Afghanistan, it also ran a story about the use of alcohol in the United States.

The entire state of Wyoming, said the writer, is like “a small town with long streets. . . . The open space means room to roam and a sense of frontier freedom. It also means that on any given night, an unusually high percentage of young people here are drinking alcohol until they vomit, pass out or do something that lands them in jail or nearly gets them killed.” Rosie Buzzas, a Montana state legislator and part-time alcohol counselor, tells the reporter:

We’re a frontier culture, and people say, “I work hard and I’ll be damned if I’m not going to have a beer or two on the way home.”. . . There’s a church, a school, and 10 bars in every town. It has never been hard for young people to get alcohol in Montana, Ms. Buzzas said, in part because many parents think it is a rite of passage for children to drink. “There are plenty of adults who tell me, ‘What’s the big deal? Kids just have to learn to drink.’ ” . . . Not long ago, three children, ages 9, 11 and 12, died of alcohol poisoning in an isolated town in Montana, but the deaths did little to change attitudes.

Customs and traditions are more powerful than laws, guns, and herbicides. We have our customs, other people have theirs. “Why,” asks an unidentified Afghan, “does the government tell us to stop growing opium when it’s doing nothing about alcohol use and prostitution? Opium is not mentioned in the Koran, but alcohol and prostitution are.”

A scholar on Iranian culture reminds us that before Qajar’s period (which began in the late eighteenth century), “opium was deeply integrated into Iranian social and daily life. People consumed opium each morning in order to be in a good mood to go to work. . . . Opium functioned in Iranian society the way that wine does in French society.”

We define certain goods, in particular opium and cocaine, as presenting irresistible temptations, especially to Americans; persecute the tempters and regard their oppression as the protection and promotion of public health; call the people who justify and promote the persecution “medical scientists” and “lawmakers”; and honor the individuals who engage in the mayhem and murder integral to the enterprise as heroes in a noble “war on drugs.”

Taxpayer-Funded Cathedral

Afghans who grow poppy are criminals, and Americans who use heroin are patients suffering from a “diagnosable no-fault disease” we call “substance abuse.” To combat this “plague,” we have erected and consecrated a taxpayer funded-cathedral, the National Institute on Drug Abuse. NIDA’s official “ Mission” is:

to lead the Nation in bringing the power of science to bear on drug abuse and addiction. Recent scientific advances have revolutionized our understanding of drug abuse and addiction. The majority of these advances, which have dramatic implications for how to best prevent and treat addiction, have been supported by the National Institute on Drug Abuse (NIDA). NIDA supports over 85 percent of the world’s research on the health aspects of drug abuse and addiction. . . . NIDA research is a critical element to improving the overall health of the Nation.

Under a subhead, “NIDA for Teens: The Science Behind Drug Abuse,” we read: “By abusing drugs, the addicted teen has changed the way his or her brain works. . . . These changes cause addicted drug users to lose the ability to control their drug use. Drug addiction is a disease. . . . There is no cure for drug addiction, but it is a treatable disease.” In short, government scientists teach American children that the use of some drugs is a “disease” they cannot control and doctors cannot cure, which only lifelong submission to the government anti-drug priesthood can keep in “remission.” “Our goal,” NIDAs mission statement concludes, “is to ensure that science, not ideology or anecdote, forms the foundation for all of our Nation’s drug abuse reduction efforts.”

Could all this deception, self-deception, effort, and expense be the practical consequence of a simple conceptual error consecrated as truth?

Fear not. As is usually the case, beyond the scary headline, deep into the copy, came the real story. Both diseases are in steady decline. Cancer rates and deaths from cancer have fallen every year since the early 1990s. The thing is, incidence and mortality rates of heart disease and stroke have fallen even more over the same period (25 percent since 1990). So while it’s true that cancer has “overtaken” heart disease, that’s really not the story. The story is that both are in decline, heart disease remarkably so.

Late last February, another health story hit the wires: Americans are living longer than ever before. Life expectancy is up across the board, among both genders and all ethnicities. The gaps in life expectancy between men and women and between black and white are shrinking, too.

At the same time all of this good news has transpired, the number of Americans classified as “obese” and “overweight” has been on a steadily upward trajectory since about the mid-1970s. In 1985 eight states reported that at least 10 percent of their populations were obese. By 1990 the number rose to 33. By 2001, it was all 50.

Of course, as you might expect, the scariest numbers about the condition of America’s waistline are overblown—there are significant problems with the way the government measures obesity, which I’ll discuss in a moment. But most researchers agree that the average American is carrying 10–15 more pounds than he was 30 years ago.

If you believe the media, nutrition activists, and public officials, those extra 10–15 pounds portend a looming health-care catastrophe. U.S. Surgeon General Richard Carmona, for example, said in 2004 that childhood obesity is “every bit as threatening to us as the terrorist threat.” A congressionally commissioned report from the Institute of Medicine published in the fall of 2004 called for massive government intervention to stave off the crisis. One author said we need “nothing short of a revolution.” The World Health Organization warned, “If immediate action is not taken, millions will suffer from an array of serious health disorders.”

But if we’ve been getting fatter for 30 years, shouldn’t we be seeing at least the front end of this coming crisis? Why are we getting healthier? In fact, a closer look at the statistics suggests that even some of the diseases most associated with obesity are in retreat.

Take cancer, for example. In 2002 the BBC reported researchers had found that “the more excess weight a person carries, the greater their risk of certain types of cancer.” In 2004 USA Today echoed that claim. “The nation’s current epidemic of overweight and obesity is likely to drive up cancer rates in coming years, ”the paper wrote. The Associated Press said that “heart disease and diabetes get all the attention, but expanding waistlines increase the risk for at least nine types of cancer, too.” (Other sources put it at ten.)

But of the ten types of cancer commonly associated with obesity, deaths from nine—pancreatic, ovarian, gall bladder, stomach, prostate, kidney, colorectal, cervicaluterine, and breast—have decreased since 1992, some of them significantly. Only one—esophageal cancer—has seen an increase in mortality rates over that period.

And heart disease? Case Western Reserve University researcher and obesity skeptic Paul Ernsberger notes that “The greatest improvements are in cardiovascular disease deaths, which are most strongly linked to obesity.”

As noted, the gap in life expectancy between black and white is shrinking. But at the same time, blacks as a group have put on more weight than whites. Incidence of obesity among black women, for example, jumped 11.7 percent between 1988 and 2001, compared to 7.3 percent among white women. Yet black women increased their life expectancy by 2.3 years, versus 1.3 years for white women over that period. It’s true with men too. The rate of obesity among black men jumped by 7.5 percent, versus 7.0 percent among white men, yet black men on average added 4.2 years to their lives, versus 2.8 for white men. So blacks have narrowed the longevity gap with whites, even while widening (pardon the pun) the “obesity gap.”

In 2003 the Journal of the American Medical Association published a study commissioned by the Centers for Disease Control that said 400,000 annual American deaths are attributable to obesity. A Lexis search reveals that as of late fall 2004, that 400,000 figure had been cited over a thousand times in mainstream media outlets. It was also routinely cited by politicians, activists, and bureaucrats as justification for large-scale government intervention to curb our pudginess. At a Time-ABC News summit on obesity in June 2004, attendees were inundated with the refrain that “obesity will soon overtake smoking as the number one cause of preventable death in America.” Demands for government action inevitably followed.

But there were fatal flaws in the CDC study’s methodology. First, it was a “meta” study, which incorporated data from dozens of other studies, some of them dating back to the 1940s, and attempted to apply that data to today’s demographics. Second, the study used the Body Mass Index (BMI) as its arbiter of obesity, a crude formula that factors only height and weight and which consequently mislabels as “overweight” or “obese” people who are extremely fit. According to the BMI, for example, half the National Basketball Association is either overweight or obese. But few would suggest they’re out of shape or unhealthy. Third, the study assumed that all premature deaths by obese people were caused by obesity—a leap of faith, to say the least. Finally, the study lumped the “overweight” in with the “obese,” even though there’s little evidence that overweight has any seriously ill-effects on health. The study’s own data showed no correlation between being overweight and premature death, and in fact showed some benefit.

In December 2004 the CDC reluctantly admitted its study was flawed, but only by a little—20 to 25 percent. Critics insisted the flaws in the study’s methodology were much more significant, and in response the National Institutes of Health finally commissioned a review. In April an independent team of researchers led by the University of North Carolina’s Katherine Flegal released a new study sharply at odds with the original study. Flegal’s team determined that it exaggerated the effects of obesity by some 300 percent. She put the real number of annual deaths attributable to overweight and obesity closer to 100,000. What’s more, the new study found that modest overweight actually protects against premature death. When adjusted for the lives saved by extra weight, the number of deaths due to obesity falls to around 25,000—putting the original figure off by a factor of 15.

A subsequent internal investigation revealed that CDC officials were actually made aware of the original study’s flaws during the peer-review process. So why was the more alarmist study published and relentlessly promoted anyway?

As it turns out, one of the co-authors of the original study was Dr. Julie Gerberding, who also happens to be the current director of the CDC. Comments from members of the internal-investigation team reveal that the study was likely published over objections from other scientists at the CDC because the head of the agency’s name was on it.

Gerberding still refuses to accept the new numbers. She has told the media that the CDC will continue with its anti-obesity campaign, which will continue to ignore the subsequent study.

Governments Spring into Action

Local and state legislatures, the U.S. Congress, regulators at all levels of government, and public-health advocates have already seized on the idea that nearly a half million people are needlessly dying every year because of their love handles. The Bush administration has earmarked millions of federal dollars for anti-obesity initiatives (though not nearly enough for the obesity warriors). Congress is considering menu-labeling laws; some in Washington have suggested taxes on high-fat or high-sugar foods; and others are calling on the Federal Trade Commission to regulate the marketing of junk food. Many states have banned junk food from school cafeterias. And Medicare announced last summer that it would begin considering paying for treatment for obesity, a new entitlement that could prove nearly as costly as the prescription-drug benefit.

America is at war with obesity. We could eventually come to find, however, that this war’s origins are as dubious as the sinking of the Maine.

None of this is to say extreme obesity is healthy, or even benign (though, as we’ve seen, some studies suggest a few extra pounds may give a mild protective effect, particularly among the elderly). The decline in incidence and deaths from heart disease and cancer are almost certainly due to advances in medical research and technology. We’re getting better at uncovering these diseases early, and with pharmaceutical marvels like statin drugs and chemotherapy, we’re making huge leaps in treatment once we’ve diagnosed them. And it’s of course likely that the gains we’ve made would be even more significant were the most obese among us a bit more svelte.

But the notion that our expanding waistlines have put us on the verge of a calamitous offensive against our health-care system simply isn’t borne out by the evidence. And so these incessant calls for immediate, large-scale government interference in how we grow, process, manufacture, market, prepare, sell, and eat our food ring hollow, hyperbolic, and needlessly invasive.

A recent Seattle Times investigation of the obesity hype found that much of the panic can be traced back to an aggressive campaign in the late 1990s by the pharmaceutical companies with diet drugs like Phen-Phen in the pipeline to get the government in the business of weight-watching. In 1996 the industry convinced the federal government to move the goalposts when it comes to defining “overweight” and “obesity.” At hearings dominated by researchers with ties to the pharmaceutical industry, an FDA panel eventually agreed. One magical night in 1997, some 29 million Americans went to bed healthy and woke up the next morning “overweight” or “obese.” And none of them gained a pound.

Debunking junk-science studies and bogus Chicken-Little pronouncements are important to refute the idea that obesity represents a looming health-care crisis. But those of us who value free markets and personal liberty wouldn’t support government intervention even if the worst pronouncements of the anti-fat activists were proven true. What we put into our mouths, how often we exercise, and what we feed our children are simply none of the government’s business. How did we get to the point where it could be?

There are two answers to that question, and they should be considered separately. First, we’ve vastly expanded the concept of “public health” to include government intervention into nearly every sphere of our lives. And second, our health-care system is slouching toward socialism, a troubling trend that undermines personal responsibility and exacts a public cost on private behavior.

Public Health

The proper conception of “public health” is innocuous enough. There are unquestionably some threats to our health and safety for which the remedies constitute a legitimate public good. They’re limited to risks to which no rational person would subject himself—examples might include communicable diseases like tuberculosis or typhoid, calamitous events like asteroid impacts or tsunamis, or biological or chemical terrorism. Under these limited circumstances, it’s understandable, even advisable, for a government limited to protecting the lives and property of its citizens to take collective measures to eradicate or minimize such risks, or minimize the damage should they come to pass.

But “public health” as it’s advocated today goes well beyond public goods. Over the last century, “public health” has come to mean state pressure coercing us to avoid risks, even risks we knowingly and willingly undertake. The most obvious and conspicuous example was alcohol prohibition. And though Prohibition took an untold number of lives, bred corruption, and legitimized criminal behavior, it is distinguishable from more recent expansions of public health in that lawmakers at least recognized it as a failure and repealed it. (Unfortunately, we don’t seem to have learned. The last 20 years have seen increasingly aggressive restrictions on the production, sale, and consumption of alcohol by local, state, and federal government.)

But the Harrison Act—which fired the first shots of the drug war—was passed even earlier, in 1914. Drug prohibition has marched onward since. Its episodic ratchetings-up and coolings-down have progressed to a particularly aggressive and militaristic incarnation over the last 25 years.

Once we’ve accepted a definition of “public health” expansive enough for government to dictate what we can and can’t put into our bodies, it’s a short leap to seatbelt laws, motorcycle-helmet laws, and prohibitions and restrictions on all sorts of other risky behavior. More recently we’ve been given “public” smoking bans that extend to private businesses such as bars and restaurants. The Supreme Court recently upheld an Alabama ban on sex toys and marital aids. And parents are all too aware of the myriad regulations on the risks to which they can legally subject their children. Over just the last several years, governments at some level have prohibited motor scooters, “pocket bikes,” all-terrain vehicles, snowmobiles, alcohol vaporizers, and fireworks, to name just a few—all designed to keep people from hurting themselves.

So it shouldn’t be the least bit surprising that “public health” might now come to include the size of our pants and the content of our refrigerators.

The justification for expansions of the government’s power to promote “public health” is typically couched in “the number of lives this will save.” Sometimes, we’re told that a law will add x number of years to the average life. The most-used and easiest tactic is to simply state that the law’s necessary to protect “the children.”

The ad nauseam recitation of the 400,000 figure is a good example, as is a report released in January 2004 stating that being overweight at 40 would cut several years off the typical life. The public-health activists at the Center for Science in the Public Interest have long been fighting for marketing restrictions on junk food, particularly on programs directed “at our children.”

Longevity seems to be an obsession among the public-health crowd. Apparently, there is no limit to the costs they’re willing to endure if some policy promises to lengthen lives. It seems improbable to them that there may be people who’d sacrifice a month or two of their senior years for the lifetime of pleasure some get from cigarettes, a night of hard drinking, or a slice of cherry pie after dinner. It’s as if adding more days to the end of our lives were the only reason for living.

Even then, as British doctor and author Michael Fitzpatrick explains in his book The Tyranny of Health, death can’t be prevented. It can only be postponed. And “death can generally be postponed only for a relatively short time by relatively intensive preventative measures,” Fitzpatrick writes. That is, high-cost measures that would typically add just a few days or months to the average life.

There’s certainly nothing wrong with studies or public-awareness campaigns designed to discover and inform us about how we can make healthier choices. It’s that the “advice” rarely stops there. Inevitably, such studies and campaigns lead to calls for government policies aimed at increasing longevity, policies that take options away from people who may value pleasure, convenience, or indulgence more than perfect health or a prolonged geriatry.

In the eloquent polemic Cigarettes Are Sublime, Richard Klein writes,“Healthism in America has sought to make longevity the principal measure of a good life. To be a survivor is to acquire moral distinction. But another view, a dandy’s perhaps, would say that living, as distinct from surviving, acquires its value from risks and sacrifices that tend to shorten life and hasten dying.”

Classical liberals should argue against the ever-expanding “public health” initiatives not only because they’re supported by junk science or manipulated data (though that’s often the case), but because the freedom to risk, indulge, and “sin” are essential to preserving individual liberty and a free society. Governments of free people aren’t authorized to ensure good health. They’re charged with securing liberty, which most certainly includes the liberty to have bad habits.

Socialized Medicine

The other chief reason why “public health” has been able to include ridiculous measures like obesity legislation and seat-belt laws is our increasingly collective system of health care. Even private health care has a collective component to it. Today, routine maintenance-oriented doctor visits are typically paid for by employer-provided health insurance, calling to mind the old Milton Friedman axiom about how generous we tend to be with other people’s money. Health insurance by definition pools risk. But many states (as well as the general culture of the health-care industry) put restrictions on so-called “medical underwriting”—or allowing health insurers to vary premiums based on risk, the same way auto or life insurers do. All these factors together create a system of perverse incentives that undermine the notion that we ought to let people take personal responsibility for their own health and well-being. Healthy people subsidize unhealthy people. When the consequences of poor decisions are shared, there’s less incentive to make good ones.

And that’s just the private sector. At the same time, politicians seem to be falling all over themselves in a rush to expand Medicare and Medicaid benefits for the aging, politically potent Baby Boom generation. The Cato Institute estimates that the new prescription-drug benefit could in the end exceed a trillion dollars. Medicare’s noodling with the idea of covering obesity treatments could very well end up costing nearly as much.

This creeping socialization of medicine gives government new license to meddle with our private affairs. It creates a climate where excessive state interference in the most intimate of personal matters—what we put into our mouths—becomes not only acceptable among the electorate, but desirable. After all, if that cheeseburger you’re eating clogs your arteries and puts you in the hospital, your poor choices will be reflected in my health insurance premiums. If you’re on Medicare or Medicaid, it’ll show up in my taxes.

That’s exactly the argument the government put forward in the summer of 2004, when the Department of Health and Human Services (HHS) announced that Medicare would consider covering the costs of obesity treatments, including diet plans, counseling, and gastrobypass surgery, all new frontiers for preventative government intervention. HHS officials insisted that the change would save taxpayers money over the long haul if obesity were prevented or treated before the ill-health effects associated with the condition begin to present themselves.

It isn’t difficult to see how this argument could be applied in a larger sense—that we need to tax fatty or sugary foods, for example, to save everyone money on health-insurance premiums and to keep the obesity problem from bankrupting Medicare and Medicaid. In fact, that exact argument has been made—and by a credentialed conservative, no less. On National Review Online, David Frum wrote: “And as Americans struggle with an epidemic of obesity—and the ensuing costs to the taxpayer—conservatives who favor (as almost all conservatives do favor) Medicare and Medicaid need to ask themselves whether their easy libertarian attitude to the worst practices of the fast food industry retains its relevance. Big Gulp drinks and super-sized fries are making America sick—and you are paying the bill. A little moderation would cure a lot of medical and fiscal ills; and a little incentive might induce that moderation.”

It’s bad enough hearing that kind of talk from the left. But when it comes from the right, too, it’s a bad harbinger for what might be ahead.

The solution to this is to return some semblance of personal responsibility to the health-care system. Health, or medical, savings accounts (HSA, MSA), for example, enable consumers to roll money not spent on routine medical procedures into a retirement account, tax-free. In contrast to the current system—which if anything encourages poor decisions — HSAs or MSAs encourage consumers to take care of themselves. Money not spent on visits to the doctor’s office is money saved for retirement.

Another suggestion would be to free up health insurers to do medical underwriting. The Bush administration has said it sees no federal barriers to the practice, so to the extent that barriers exist, they’re likely at the state level. Consumers in any state should be free to purchase health insurance from companies in any other state under the laws and regulations of the state where the insurer is incorporated. This would not only free up health insurers to medically underwrite, it would create a kind of competition between the states to ease regulatory burdens to attract insurers.

The result would unleash market forces on the task of finding the best carrot-and-stick approach to encouraging healthy lifestyles. Insurers would compete for customers, while states would lower regulatory barriers. Currently, there’s much debate over whether the illhealth effects often associated with obesity are from obesity itself or from the sedentary activity levels that often accompany being overweight. Hundreds of insurers competing with one another to both attract consumers and develop plans that reward the healthiest habits among their patrons (which of course benefits the insurers through lower health-care costs) might bring us closer to an answer to such questions. At the very least, if each of us were solely responsible for the consequences of our diet and activity level, the point would be rendered moot from a public-policy perspective.

The bizarre thing about the obesity debate is that less than a decade ago, the very thought of it was often discussed only in parody, or in a reductio ad absurdum context. Opponents of the tobacco lawsuits often invoked the idea of trial lawyers suing fast-food restaurants as one example of the “parade of horribles” that might follow should the tobacco suits be allowed to go forward.

Well, we’re here now. This is post-reductio America. If the anti-obesity proposals currently up for debate become law, it would be difficult to think of any aspect of our lives that would be out of the reach of the public-health activists. Or, as one advocacy group that represents the food industry has put it, the question will no longer be “what’s next?” . . . but “what’s left?”

The Illinois pharmacists who object to selling abortifacient birth control argue that their refusal is sanctioned by the state’s “conscience clause.” But critics say that clause applies only to doctors who don’t want to perform abortions. The morning-after pill prevents a fertilized egg from implanting in the woman’s uterus. The Chicago Sun-Times reports that this “has motivated pharmacists in at least a dozen states around the country to refuse to dispense contraceptives.”

Fortunately, we can resolve this problem without getting into the birth-control or abortion controversies. In a free society, human relationships, including commercial relationships, must grow out of the consent of all the people involved. A forced sale is theft; forced service is slavery.

The owner of a drugstore, by virtue of the nature of private property, sets the rules. If customers don’t like them, they are free to go elsewhere. They can even shop on the Internet. Similarly, if a pharmacist-employee with convictions opposed to the morning-after pill works for someone who thinks differently, he will have to find another job if he can’t work things out with his boss.

No one has the right to make demands on other people’s property and then run to the state if turned down. All peaceful means of persuasion are acceptable. But force is not. This is the most basic condition of a fully civilized society. Most store owners, I imagine, will not want to turn away customers, but some will feel so strongly about certain matters that they do not mind losing business. That is their right. That’s how the diverse marketplace works.

Would we hear objections if a supermarket owner refused to sell beer and wine because of his belief that drinking alcohol is sinful or harmful? Probably not. But for many people, birth control requires special rules, and pharmacists do not have a “right to choose.”

It is argued that since drugstores and pharmacists are licensed, the state may attach conditions. But that is one of the objections to licensing: it opens the door to further infringements on individual liberty. To be sure, licensing is always protectionist. In profession after profession, the demand for it came not from consumers seeking safety,but from the practitioners themselves who sought shelter from income-reducing competition. Thus we can assume that licensing reduces the number of drugstores, especially in small towns and rural areas. So is the state justified in requiring that all customers be served? I think not, for this would merely stack intervention atop intervention. We need to move the other way and peel off layers of intervention. Advocates of the freedom philosophy should use cases such as this in arguing against occupational licensing.

That is not the only intervention involved here. The pharmacists refuse to fill prescriptions, which are made necessary by law. Again, this has more to do with supporting the incomes of doctors and pharmacists than with consumer welfare. The problem would not have arisen if products were available without prescription. As the New York Times editorialized, “Pharmacists who refuse to fill prescriptions for morning-after pills are inadvertently strengthening the case for providing them as nonprescription medicines on the open shelves. Such availability would allow women to get the pills promptly without going first to a doctor and then to a potentially obstructionist pharmacist.”

Once again, individual freedom and private property are shown to be indispensable for resolving disputes.

***

After so many years of neglect, the subject of Soviet concentration camps has started getting the attention it deserves. Jon Utley, who has a special reason to be interested in the camps, recently took a tour. See his report inside.

The success and prosperity of a society depend on freedom and private property, which are really the same things. James Dorn elaborates.

It’s been 36 years since Neil Armstrong set foot on the moon and almost 33 years since the last trip. Bill Walker says it’s about time moon and space exploration were turned over to private enterprise.

It’s been a bad couple of years for the Food and Drug Administration, and reform is in the air. Don’t bother, Arthur Foulkes says.

Today the government’s degradation of the American medical system is a topic of much discussion. But as this month’s FEE Timely Classic shows, Dr. Frank Primich had the ailment perfectly diagnosed in 1980.

The U.S. Postal Service is asking for another hike in first-class postage. This prompts Robert Carreira to wonder what we would expect from a legally protected monopoly.

The threat of state encroachment on private and home education is an ever-present threat. Hal Young describes how the parents of North Carolina have exercised eternal vigilance.

When an establishment “progressive” discovers that government intervention ostensibly on behalf of the poor actually harms its intended beneficiaries by stifling economic growth, it is indeed a newsworthy event. George Leef has the details.

Do we ever have thought-provoking columns this issue! Richard Ebeling makes the case against the welfare state. Lawrence Reed ponders the importance of ownership. Thomas Szasz examines the relationship between mental illness and legal incompetence. Stephen Davies looks at J. A. Hobson, a key figure in the change of the term liberal. Russell Roberts wonders why some people hate Wal-Mart. And Aeon Skoble, reading the claim that choice is a burden, responds,“It Just Ain’t So!”

Books subjected to our reviewers’ scrutiny deal with national greatness, protectionism, eminent domain, and conservative power.

The study is important because it influences policy debates, especially in the states, and because the local news media like to focus on the ALA’s ranking of counties and states. In reality every aspect of the ALA report is methodologically flawed. Its reporting of ozone data and the extent of detrimental health effects is hyperbolic, and its grading system and rankings are meaningless.

First, the ALA report is based on data as much as four years old and says little or nothing about current or future trends. Despite its title, “The State of the Air: 2003” focuses on 1999–2001 and says nothing about the state of the air in 2003 or 2002.¹ Ground-level ozone is heavily dependent on the weather, particularly heat, sunlight, and humidity, and can vary dramatically from year to year. For example, from 1999 to 2001 the average number of ozone exceedence days per monitor in North Carolina fell by more than two-thirds, a fact not mentioned in the ALA’s discussion of air quality in the state. In spite of this flaw, the media typically report on the study as if the data were both current and an accurate reflection of past and current trends.

The ALA’s grading system and the comparisons based on this system convey little if any useful information. A county is given an F if there are more than three monitor readings greater than or equal to 85 parts per billion (ppb) of ambient air averaged over eight hours for the three-year period.² This raises several problems.

Imagine county Y and county Z. Y registers ten mild exceedence days of 85 ppb over the period with no other days registering above 70 ppb. Z registers 20 days measuring 80 ppb with no day below 75 ppb. The ALA grading system would give county Y a grade of F and county Z, with no exceedences, a grade of A. According to the Environmental Protection Agency’s Clean Air Scientific Advisory Committee (CASAC), these two grades would tell us nothing about the relative healthiness of the air in these two counties.³ CASAC concluded that when considering a range of 70 to 90 ppb “there is no ‘bright line’ which distinguishes any of the. . . standards . . . as being significantly more protective of public health.” In this case the difference between A and F, while appearing quite dramatic, would turn out to be, in terms of actual protection of public health, no difference at all.

Compounding this deception is the fact that the ALA study uses its conclusions to rank counties and metropolitan areas according to relative levels of ozone pollution. The problem is that different counties, cities, and states all have different numbers of monitors. The more monitors a jurisdiction has the more likely an exceedence will be registered on any given day. That biases the comparisons against areas with more monitors. While the ALA is clearly aware of this problem, it has never attempted to adjust its rankings for the numbers of monitors in each county.

In reporting data from a county, the ALA counts an ozone exceedence from any one monitor against the entire geographical area. Assume a county has four monitors each at a different location, if only one shows an exceedence for a given day, the entire county is reported as being out of compliance. Therefore, a county will always be reported as having considerably more ozone exceedence days in a given year than any location in the county actually experiences. For example, in the latest report, Wake County, North Carolina, was cited as averaging 16 high ozone days per year during 1999–2001. In reality the annual average for the four monitors in the county was only six exceedence days each. In 2001 they averaged only two each.

Exaggerates Risk

In adopting this misleading methodology the ALA exaggerates the number of people who are at risk. Whenever the study cites a county as having an ozone exceedence day, even if only registered on one monitor, the entire population of the county is reported at risk. For example, during 1998 in Wake County, a monitor in the small rural community of Fuquay Varina registered four exceedence days that were not registered on any other monitor. In spite of this, the ALA listed the entire “sensitive” population of the county as “at risk”—including the population of Raleigh, which showed no exceedences on those days.

Along these same lines, the ALA misleadingly reports the identical people as being at risk in several different categories. For example, in stating that “as many as 27.1 million children 13 and under, and over 1.9 million children with asthma are potentially exposed to unhealthful levels of ozone,” the ALA is actually referring to many of the same children twice.⁴ This occurs with several other categories of “at risk” populations. Technically double counting is avoided only because the ALA does not aggregate.

The annual “State of the Air” report is pure propaganda, and its primary purpose is political advocacy. This is clear from the ALA’s website and from the fact that it regularly joins coalitions with leftist environmental pressure groups such as Earth Justice, Environmental Defense, and the Natural Resource Defense Council.⁵ The media and everyone else should view its publications in that light.

1. Found at http://lungaction.org/reports/sota03_full.html.
2. The 85 ppb, eight-hour threshold is central to the controversial EPA standard that was proposed in 1997. But the ALA standard is even more stringent than the EPA’s. For the ALA, if any one ozone monitor crosses the threshold during the day the entire county is in violation of the standard. As the ALA notes in the appendix of its report, “some counties will receive grades of F . . . while still meeting EPA’s 1997 ozone standard.”
3. “CASAC Closure on the Primary Standard Portion of the Staff Paper for Ozone,” Clean Air Scientific Advisory Committee, U.S. Environmental Protection Agency, EPA-SAB-CASAC-LTR-96-002, November 30, 1995.
4. “American Lung Association Fact Sheet Children and Ozone Air Pollution,” American Lung Association, September, 2002.
5. See “Environmental Groups Sue EPA for Weakening Clean Air Act,” February 28, 2003, www.lungusa.org/press/envir/air_022803.html.

Junk Science Judo: Self-Defense Against Health Scares and Scams

by Steven J. Milloy

Cato Institute • 2001 • 191 pages • $18.95

Reviewed by Theodore Balaker

So much of staying healthy and sane is worrying about what’s important and not sweating the small stuff. It makes sense to worry about, say, getting enough exercise since exercising regularly can greatly improve one’s quality of life. Most rules for maintaining a healthy life are quite simple.

Since most of us are not physicians or actuaries, we rely on the media to furnish us with the health information we incorporate into our personal risk-assessment calculus. Unfortunately, media outlets often muddy our view of risk assessment with outlandish and overstated threats. At the core of many of these threats one often finds the fingerprints of the junk scientist. He urges us to fret about small risks like Alar, breast implants, and secondhand smoke, and confuses us with shrill warnings about what we breathe, buy, and eat. Sometimes it seems that the junk scientist would have us sweat only the small stuff. Thankfully, Steven J . Milloy reminds us that the most important lessons of risk assessment are often the simplest.

His book, Junk Science Judo: Self-Defense Against Health Scares and Scams, delivers what it advertises. The antijunk-science movement revels in exposing quacks, crooks, and misguided do-gooders, but here Milloy goes a step further. He gathers the lessons learned from locking horns with junk scientists and offers a handbook for staying sane in a culture seething with corrupted science.

Milloy reminds us that, while science may appear intimidating, the scientific process remains simple. We should find comfort ii the scientific method with its predictabli process of observation, hypothesis, testing revising of hypothesis, and more testing. Science plods, ever so slowly and deliberately toward truth. Science is not fickle; it does not leap from one truth to the next. Headlines that tout the findings of a shocking new study should be understood in the largei context of science plodding toward truth One study cannot turn thousands of years ol accumulated knowledge on its head. As Milloy notes in a pronouncement typical of the book’s colloquial style: “A hypothesis should get the you-know-what tested out of it until it is credible enough to be labeled a ‘theory.’” Even then more testing is needed before a theory can graduate to scientific law. Before we buy into the scare of the moment we ought to see how it conforms to the larger body of scientific knowledge. It may not be necessary to uproot the family and move away from those power lines, after all.

Milloy correctly notes that most of us remain properly skeptical of scientific claims made by corporations, since corporations often have self-serving motives in understating or overstating health risks. But we become trusting when confronted with the claims of government officials, activists, and consumer and environmental groups. Some groups seem untainted by self-interest, motivated only to serve the common good. However, the intentions of activists may be especially menacing since noble rhetoric camouflages their self-interest.

Take fundraising for environmental groups. It has become a multibillion-dollar industry, and, whether the science is sound or not, coffers grow with each new scare. Often the junk scientist is merely a partisan in public advocate’s clothing.

Milloy is particularly effective when he illustrates (with endless examples) two fundamental rules of Junk Science Judo: statistics aren’t science and the dose matters. Statistics provide associations; they do not establish causation between two phenomena. Often journalists try to skirt this issue by using weasel words. “May,” “might,” “possibly,” and my favorite, “link,” all imply causation where causation may not exist. Milloy rebuffs a journalist who writes that PCBs have been “linked” with cancer: “Certainly PCBs have been ‘linked’ with cancer — the same way Richard Jewell was ‘linked’ with the bombing at the Atlanta Olympics. Both were accused and assumed guilty but subsequently vindicated.”

Such prejudice is common in the public sphere. Certain substances are simply presumed guilty. Alar, radiation, dioxin, and lead can only be harmful. While the mantra of the junk scientist is “any dose is poison,” Milloy encourages us to remember a fundamental principle of toxicology: “the dose makes the poison.” Two aspirin relieve your headache; two hundred may kill you. Here we find the crux of an archetypal junk science issue, the Alar scare. Yes, you might be at greater risk for developing cancer if you drink juice from Alar treated apples — but only if you spend your life drinking 19,000 quarts per day.

One area Milloy could emphasize more is the importance of taking the junk out of science. Junk science makes us less safe by using the noise of outlandish risks to distract us from health and safety measures that actually improve lives. Moreover, crisis is the seedling of big government. So even if we sidestep junk science in our personal lives, we still must face politicians bent on making it the law of the land.

By now everyone knows that the fast-food chains are being sued because they allegedly contribute to obesity. On Fox’s “Hannity and Colmes” program last July, Samuel Hirsch, the attorney who filed lawsuits against McDonald’s, Burger King, Wendy’s, and KFC on behalf of his client who blames them for his poor health, admitted that the restaurants are not completely to blame. But he added that their failure to post warnings about nutrition content and their sophisticated marketing strategies make them partly culpable.

Hirsch’s claim that nutrition information is not available is false. Every one of these companies has its nutrition information available on its website, and I have seen nutrition-content posters at several fast-food establishments. But even if the restaurant provided no information, it is easy enough to learn from books, the Internet, television, and radio that certain foods can promote heart disease, diabetes, and high blood pressure. To hear Hirsch tell it, “working” parents must be stupid because they don’t know what they are buying. With his use of the term “working” he was setting himself up as the champion of the “common man.”

The ridiculous claim that corporations are responsible for people’s health problems is nothing new. Remember the lawsuits against the tobacco companies? If you smoke let me ask you this: did an employee from one of the tobacco companies put a gun to your head and make you smoke a cigarette? I didn’t think so. People who are dying because of smoking-related illnesses have nobody to blame but themselves. And it’s the same for people who eat poorly. I have never seen Ronald McDonald with an M-16 forcing people to buy Big Macs. A person has to drive to McDonald’s, order a Big Mac, and eat it on his own.

The lack of personal responsibility has even my high school students blaming their poor diets on the school cafeteria. Granted, our cafeteria sells burritos and pizza, but they also sell salads and other healthy food. And if that weren’t good enough, I would tell them to wake up earlier and make their own healthy lunches. But that would involve a cost—waking up earlier. So I tell them to stop complaining and that they need to understand a simple economic concept—actions are what count. Obviously the benefit of eating their “bad” lunches outweighs the cost of waking up earlier or taking the time to make their lunches the night before. Eating unhealthy lunches is their choice.

Will ice cream companies be next? What about candy companies? And, God forbid, Starbucks! Caffeine may be bad for us, right? And all that whipped cream and caramel syrup in those Frappuccinos can’t be good for us.

Thomas DiLorenzo and James T. Bennett in their book From Pathology to Politics: Public Health in America (2000) correctly predicted this absurd litigation. Their book also points out that many public-health “experts” are not so concerned about health as they are about politics and their social agenda, which means more government control over our lives. Even before lawyer Hirsch came on the scene, there were those who advocated “fat taxes.” Not flat taxes, as supported by supply-side economists, but a tax on fat. In other words, foods that are considered “bad” will be taxed and foods that are considered “good” will be subsidized.

It’s Your Life

Look, I am a “health nut” myself. I do not eat fast food (maybe once in a while), and I do not smoke cigarettes. I make a choice to eat that Subway sandwich with no cheese and no mayonnaise, rather than that juicy hamburger or large fries. I make the choice to go to the gym and lift weights and run. Get the picture? It’s called personal responsibility. Those notorious restaurants exist because consumers want them to exist. While I may think smokers and people who live on fast food (like many of my friends) are unwise, it’s their lives. They have to weigh their own costs and benefits. No company is forcing them to do anything.

At the end of the “Hannity and Colmes” show, both conservative Sean Hannity and “liberal” law professor and guest-host Susan Estrich agreed that it is up to the person to choose what to eat. They both laughed at Hirsch, who responded by saying, “In five to ten years you won’t be laughing.”

I think he’s right. Unfortunately, I believe the laws will be changed to “protect” people from these evil companies. I tell my students that in ten years Starbucks will have bouncers at their door checking for IDs (and eventually Starbucks will be shut down because caffeine will be illegal). No more Jolt Cola or Mountain Dew for you high school students either unless you are 18. And cigars and cigarettes? I think we will see a new Prohibition on tobacco. The public-health movement will have a role in this socialist plot. As DiLorenzo and Bennett write in their book:

The denial of individual responsibility for one’s own life and well-being has become the keystone of the public health movement. For if individuals are responsible for their own health, who needs the “public” health establishment’s political agenda? The very word “public” in this regard is a euphemism for “socialized.” And once our health is socialized, then all behavior becomes the “legitimate” province of state control and regulation. But once it is agreed that the state has a “right” to control any and all behavior that might possibly have a negative effect on “public” health, then we are on the road to losing all of our privacy and our freedom.

Milton Friedman made the simple statement in his “Free to Choose” television series that a voluntary exchange will not take place unless both parties believe they will benefit. Every time you buy cigarettes or unhealthy food, and every time you do not buy food that’s good for you, you are weighing your own costs and benefits. I give credit to those who keep quiet about personal health risks. It’s the whiners and people who cannot accept responsibility that are irritating. As F. A. Hayek wrote in The Constitution of Liberty: “Liberty and responsibility are inseparable.”

Mass transit, it is argued, would carry people about in a more economical and energy-efficient way and would have minimal casualties from accidents. There are those who claim that it would help restore a sense of community, making everyday travel a shared experience again.

Well, as it happens, I live in a European city, Warsaw, with a fairly well-developed mass-transit system of buses, trams, a commuter-rail system, and a suburban light-rail line. Recently it has been improved by the addition of a subway line, currently being extended, with plans for additional lines. I don’t have a car.

More than a few people have noticed that the most prominent American proponents of mass transit all seem to get around in cars, and often chauffeur-driven cars at that. However one can’t blame them for not using a system that doesn’t exist, and I’m sure that Messrs. Gore and Nader and their cohorts will all be rubbing elbows with the rest of us on the subway trains and light-rail carriages just as soon as they are built. Although I didn’t happen to run into Mr. Gore when he was last in Warsaw, I’m sure he enjoyed his trip from Okecie Airport to the Bristol Hotel on bus number 175, affectionately known to us expats as the “pickpocket express.”

Sorry, satiric irony always seems to get me in its grip when I contemplate the logical and well-thought-out plans of the overeducated and underexperienced. I may sound like a broken record, but in any conflict between logic and experience, experience is almost always a better guide. Don’t tell me how it would work, could work, or should work–tell me how it works. If there is no direct experience, find me a historical example, and if there isn’t any then find me a close analogy.

In this case, how about asking an intelligent and articulate person who lives in a city with a functioning mass-transit system and uses it every day? For example, me. How does it affect one’s life to be totally reliant on mass transit for traveling around the city, the country, the continent?

In the city and surrounding towns, not bad. It’s quite nice to be able to live without a car actually. Finding parking can be a frustrating experience. Warsaw was almost completely rebuilt by socialist planners after its destruction in the General Uprising. They didn’t plan for so many cars, and consequently people often use the broad sidewalks for parking and get indignant when you walk across the space they are trying to park in. The older apartment buildings, where a storage area/garage comes with each unit, were usually built with tiny European cars in mind, not the big American cars people love so much here. It’s also difficult to provide for both curbside parking and bus stops.

What’s really lovely is that a whole category of bills is out of your life when you live without a car. And in Poland, especially if you’re an expat, there is a world of bureaucratic hassle you don’t have to put up with if you don’t have one.

Within Warsaw it’s not too difficult to get around by tram, bus, and metro, and you can buy a reasonably priced monthly pass to ride on all of them. Commuter trains run fairly frequently to outlying towns and villages for people who only work in Warsaw.

From Warsaw you can reach any number of interesting cities via train in no more than a day and a half, and quite cheaply too. You can also go to Gdansk and take ferryboats, with a wide range of prices and accommodations, all around the Baltic, to Sweden, Finland, and the Baltic States.

So okay, unlike in America I can actually get everywhere I want to go by regularly available mass transit. Is there a downside? I mean, considering that people, even with mass transit available, nonetheless seem to want to get cars whenever they can afford them.

Somebody Else’s Schedule

To begin with, you have to adjust your life to somebody else’s schedule. Along the most traveled routes the trams/buses come along every few minutes, but 15 minutes here and ten minutes there add up after a while. Considering the time spent walking to and from the nearest stop, plus time spent waiting (and you always have to allow a bit more because the trams and buses are never precisely on time), it adds up to quite a few man-hours. A friend of mine with a job that required him to go to several different places every day estimated that he was spending two-and-a-half hours a day either on buses or waiting for buses. He has a car now.

This puts a dent in the argument about personal transport not being as efficient as mass transit, though it won’t show up in any statistics that government bureaus keep. I strongly suspect that the man-hours lost fiddling around with mass transit might more than cover the man-hours spent manufacturing cars.

Second, during the peak traffic hours the damn things are crowded. I don’t mean standing-in-a-movie-queue crowded, I mean rubbing-intimate-body-parts-with-strangers crowded. Better in some cities than others for sure, but as a rule riders on the early-morning suburban commuter lines are packed like sardines.

On a visit to Belgrade shortly after the bombing, buses at all hours were so crowded that a pickpocket couldn’t have plied his trade, obviously because of a sharp and sudden increase in the city’s population. Warsaw buses are much better, but any way you look at it, relying on large passenger vehicles for short-range transport always creates problems with scheduling for different times of day. Either you have too many buses, trams, and subway cars carrying too few passengers or too few of them carrying too many. For economic and budgetary reasons planners have to split the difference and aim for an unhappy medium.

In Lithuania they solved this problem by opening up the market to private ten-passenger minibuses that are allowed to use the same bus stops and route numbers as the city and intervillage buses. In addition, drivers are quite amenable to picking you up or dropping you off at points in between the regular stops. The charge is a local bill in common circulation rather than a ticket or token. This has been so successful that the newly privatized large bus companies are now clamoring for protection against their upstart competitors.

Another item that will never show up in the man-hour productivity statistics is a public-health issue. With crowded mass transit, whenever anybody sneezes on a bus or a tram–the city catches cold. Cars actually perform the function of a cordon sanitaire for those of us who are not sick enough to skip work without feeling guilty. How many man-hours are lost due to sick time or just lowered productivity because of feeling miserable?

I understand that in Japan it is considered impolite to spread disease–so Japanese with colds wear surgical masks and perhaps gloves while riding mass transit. This is a marvelous custom that I, for one, wish the West would adopt. However, much experience this past century has shown how difficult it is to engineer culture, so I suppose we’ll be putting up with boors who cough and sneeze on public transport and hold on to the passenger rail with hands they’ve just used to wipe their noses with. And from time to time I will be one of those boors no doubt.

Nonetheless I like my city’s mass transit. A new subway stop has just opened up directly across from my apartment, and along with the convenience, I get warm fuzzies thinking about what this has done for the rental and resale value of my apartment.

European Style

Aside from areas rebuilt in the Stalinist-era concrete stackaprole style (essentially identical to American housing-project style, only uglier), Warsaw was largely rebuilt in a European style. That is, buildings in the city center are not high, perhaps to eight stories, and are built around a central courtyard. On the street-facing side the first floor contains shops and walk-in businesses. Higher stories are apartments and/or offices. Apartments look down on the interior light well/atrium from the kitchen windows. This means that mothers can send their kids into an area to play that has at least a patch of open sky above, can be monitored, and can be made secure by closing one or two gates.

I don’t know if the original structures had such small interior spaces. That tends to cut down on the hours of direct sunlight and makes them rather damp in the colder months. Cities such as Prague and Budapest have lower buildings and broader interior spaces, many of which can support tall trees on the sunlight available.

Anyhow, it turns out that the classical city design is a tremendously efficient way of housing a really dense population with a fair amount of privacy and security. It also means that more of your shopping and errand needs are going to be within convenient bus, tram, subway, and foot distance. As a bonus it tends to focus the attention of people in the shops and businesses on the street, making them more secure.

American cities are not built that way. For good or ill, in our suburbs and smaller towns we seem to reproduce in miniature a neighborhood of English manor houses: a house in the middle of a surrounding yard, and the consequent low population density. The distance between one house and the next isn’t great but adds up over the neighborhood. How could each and every suburban home be served by a mass transit stop within a five- or ten-minute walk of every house?

But I don’t have those problems. I can go literally everywhere I wish by tram, bus, metro, and a pretty cheap taxi system. Plus an awful lot of places I go are within an easy and pleasant walk.

However, all of that went out the window with the birth of our first child. The biggest drawback of mass transit, is of course, the fact that it limits the loads one can carry. A baby plus support system is a lot of load. It’s still nice to have as an option, but lately my enthusiasm for mass transit has dampened a bit.

A few days ago my wife and I had one of those married moments of silent communion when we each had a perfect understanding of what was going through the other’s mind. She first broke the silence to express our shared feeling, “So when are we going to get a car?”

Stephen Browne is an English teacher, freelance writer, and editor based in Warsaw. He has lived and worked in Eastern Europe and the Middle East since 1991 and is the founder of the English for Liberty summer camp held annually in Lithuania.

The Model State Emergency Health Powers Act, proposed by the Centers for Disease Control and Prevention (CDC), would provide a state’s governor with sole discretion to declare a public-health emergency. Once the emergency was declared, public-health officials would assume police powers, the militia would be mobilized, and the legislature would be prohibited from intervening for 60 days. Any new orders and rules issued by the governor would have the full force of law. Existing laws and individual rights could be suspended.

To promote the legislation, state officials and legislators have related it almost exclusively to the threat of bioterrorism. But broader authority is proposed. The new powers would be authorized during any declared public-health emergency. An emergency could be declared with the occurrence or imminent threat of a health condition or illness that is believed to be caused by bioterrorism, or the appearance of a novel, previously controlled, or previously eradicated infectious agent or biological toxin. That belief is the only criterion. And although there must be potential for a large number of people to be affected, there is no definition of “large number.” The governor, in consultation with health officials, would decide.

The 40-page proposal would require individuals to submit to state-ordered vaccinations, examination, testing, treatment, and specimen collection. Resisters would be charged with a misdemeanor and quarantined. Physicians and other health-care professionals would be required to perform medical procedures or be charged with a misdemeanor.

Quarantine, or isolation, could be imposed without a court order, although an order would have to be obtained “promptly” thereafter. Medical care could be rationed or withheld; private property could be taken or destroyed; compensation for loss of property would be limited; and no person acting under the orders of government officials would be held liable for death, injury, or property damage.

The names, addresses, and physical conditions of, and any other necessary information about, individuals suspected of harboring diseases or health conditions that might have been caused by bioterrorism or an epidemic would have to be reported immediately by doctors and pharmacists. No patient consent or notification would be required.

The public first got wind of the government’s plan when the CDC published a draft proposal last October. What began as a murmur of concern through e-mail soon became a wave of opposition around the country. The Health Privacy Project at Georgetown University took the first shot. It sent a letter to Lawrence Gostin, author of the proposal and director of the CDC’s Center for Law and the Public’s Health at Georgetown University. The letter attacked the draft’s lack of definitions for “epidemic” and “pandemic,” terms critical to determining when an emergency could be declared. It also expressed concern over the “breathtakingly expansive scope of the definition of ‘public health emergency.’”¹

Final Details Unveiled

On December 21, the CDC unveiled its final proposal. Responding to public criticism, the wording had been softened and the definitions made less vague, but there were few substantive changes. In fact, some sections are more egregious than before.

Due process is virtually eliminated. Health officials could pluck citizens out of their homes, place them in quarantine, and need not apply for a court order until ten days later. Nothing specifically would prevent officials from using quarantine or its threat to coerce individuals into submitting to medical procedures they would otherwise refuse. And although a court hearing would be required 48 hours after the court order was received, health officials could request a delay.

Doctors, other health professionals, and health-care institutions would also face coercion. If they refused to follow state-ordered medical directives, officials could strip them of their licenses to practice or operate in the state. On the order of an official, those who take an oath to protect patients might be compelled by state law to harm them (such as by administering a vaccine or performing a high-risk procedure). If a physician questioned directives, followed his conscience, advised citizens to refuse, or obstructed the plans of state officials, he could end up flipping burgers to support his family.

Additional provisions of the final proposal are just as alarming. Isolation of the sick and quarantine of the exposed must be in different locations, assuring the separation of children and parents. As in the first draft, state officials could ration care, initiate continuing health surveillance, commandeer and control medical supplies, and confiscate personal property. And although the misdemeanor charges were dropped for citizens who don’t comply with medical procedures, those who refuse to submit to quarantine and isolation could still be charged with a crime.

The media soon sounded the alarm. By January 2002, the San Francisco Chronicle had warned of endangered civil rights. Investor’s Business Daily called the bill “unhealthy tyranny.” Jewish World Review said it is a “prescription for disaster,” and the Wall Street Journal reported that a “new battleground” had been created between health officials and civil libertarians. In early April, Time magazine covered the issue of detention powers in an article aptly titled “Mr. Quarantine, meet Miss Liberty.”

Public-policy groups began to rally their constituents. The American Legislative Exchange Council (ALEC), a group of 2,400 conservative state legislators, opposed the model act and set up a Web page to track the legislation in every state.² The Eagle Forum dedicated an entire radio program to the issue. The Free Congress Foundation denounced the act as a “bad idea.” The Association of American Physicians and Surgeons expressed concern about granting governors “dictatorial power.” And the Institute for Health Freedom warned of “new state medical police powers.”

Proposal Defended

Gostin defended the proposal’s purported modernization of the public-health laws. In the December Insight magazine he claimed the September 11 attack had one silver lining: “The political community is coming together with a clear determination to protect the civilian population from harm.”³

In a classic doublespeak, Gostin also claimed that data-privacy safeguards would be in place. But his proposal would permit state public-health agencies to share an individual’s medical information with law-enforcement officials, other government agencies, and public-health officials in other states.

The CDC reportedly agreed to pay Gostin $300,000 a year for up to three years to write the model act.⁴ He is professor of law at Georgetown and Johns Hopkins universities and sits on the Institute of Medicine’s Committee on Assuring the Health of the Public in the 21st Century.

Expanded health powers have long been on Gostin’s agenda. The CDC Center for Law and the Public’s Health, which he heads, spent the past couple of years culling existing state public-health laws in order to write a uniform comprehensive law that all states could enact. In 1998 Gostin co-wrote a paper proposing that states provide health officials with “a broad and flexible range of powers. By equipping public health authorities with graded powers ranging from isolation, quarantine, and directly observed therapy to cease-and-desist orders or mandated counseling, education, or treatment, authorities will be able to tailor interventions to the specific situation and disease threat.”⁵

Health surveillance is the key. To identify emerging health threats, Gostin claims government officials must be empowered to monitor the most minuscule medical details of American life. “If there’s a run on anti-diarrhea medications, how would [the federal government] know that?” Gostin asked.⁶ Therefore, the health-powers proposal would require an active disease-surveillance system, forcing doctors, hospitals, and pharmacists to share patient data with state health officials.

The Bush administration likes the idea of health surveillance, and in January the Department of Health and Human Services made $1.1 billion available for bioterrorism preparedness. Federal funding will be directed to, among other things, the development of round-the-clock disease-reporting systems involving hospital emergency departments, state and local health officials, and law enforcement.⁷

Thus far, Arizona, Florida, Georgia, Louisiana, Maine, Maryland, Minnesota, New Hampshire, South Dakota, and Utah have passed versions of the CDC proposal. Nine states-Connecticut, Idaho, Kentucky, Mississippi, Nebraska, Oklahoma, Washington, Wisconsin, and Wyoming-have defeated similar legislation. In 13 states, bills are pending in the legislature, and officials in five more are considering whether to introduce legislation.⁸

Battle in Minnesota

In Minnesota, where several citizen health-policy organizations exist, the legislative battle was intense. While the commissioner of health tried to shepherd the bill to passage by personally attending every hearing, citizens repeatedly testified against it. Health-care professional associations were unethically silent, asking only for immunity from lawsuits.

The original 44-page bill was cut to nine pages in the Senate and 11 pages in the House. Requirements that health-care professionals provide, and citizens submit to, medical examinations, vaccination, and treatment were deleted. A right to refuse such procedures was added. Legislators demanded authority to rescind the governor’s declaration. And a provision allowing the governor to endow a “designee” with the governor’s authority to issue orders and write rules was removed.

The legislature initially voted to return the bill to conference committee–a signal that the bill was dead. However, last-minute amendments to appease gun owners and AIDS activists were added and the bill passed on the final day of session. The legislation allows broad declaration authority for public-health emergencies, commandeering of private property, unprecedented empowerment of the governor, and year-around authority to impose quarantine and isolation-without a court order or declaration of a public-health emergency.

The potential effectiveness, or lack thereof, of the CDC’s heavy-handed proposal has received little attention. The inauspicious, at times violent, history of martial law has been ignored. Disregarding human nature and all wisdom to the contrary, health officials continue to march a top-down command-and-control proposal across the nation.

Public trust requires thoughtful contingency plans that uphold constitutional rights and freedom of conscience, support medical ethics, and encourage voluntary cooperation with disease containment strategies. State legislatures should not rush to enact ill-conceived, ineffective legislation. Public policy must always recognize and respect the rights, dignity, and intelligence of individuals. An angry public is not a cooperative public. If health officials are empowered to harm the very people legislators want to protect, a public-health emergency may soon become a crisis of the public’s trust.

Twila Brase, R.N. is president of the Citizens’ Council on Health Care, a free-market health-care policy organization in St. Paul Minnesota (www.cchconline.org).

Notes

1. Letter from Health Privacy Project to Lawrence O. Gostin, November 7, 2001.
2. See www.alec.org.
3. Lawrence O. Gostin, “YES: New Laws Are Needed to Enable Federal and State Agencies to Work Together in an Emergency,” Insight, December 18, 2001.
4. Meryl Nass, “The Model Emergency Health Powers Act Creates Its Own Emergency,” redflagsweekly.com, April 8, 2002; www.redflagsweekly.com/nass/2002_april08.html
5. Lawrence O. Gostin et al., “Improving State Law to Prevent and Treat Infectious Disease,” Milbank Memorial Fund, 1998, p. 2.
6. Quoted in Matt Mientka, “CDC Releases Model Bioterrorism Law,” U.S. Medicine, December 2001.
7. “HHS Announces $1.1 Billion in Funding to States for Bioterrorism Preparedness,” HHS Press Release, U.S. Department of Health and Human Services, January 31, 2002.
8. See the map at the American Legislative Exchange Council website, www.alec.org.