Public Health, Public Trust, and Faith Communities
Michael J. DeBoer
In a recently issued report, the RAND Corporation highlighted a dimension of the impact that the government response to the coronavirus disease 2019 (COVID-19) pandemic has had on trust. It noted that trust in the United States Centers for Disease Control and Prevention (CDC) declined significantly between May and October 2020, and it observed that declines in trust were found across diverse groups of Americans. Additionally, the report explained that “public suspicions of scientific experts and levels of distrust of government institutions are increasing for a variety of reasons, including a blurring of the line between opinion and fact and access to more sources of conflicting information.” In December 2020, the Kaiser Family Foundation reported that 27% of the public is vaccine hesitant for the following reasons: worries about possible side effects; lack of trust in the government to ensure the safety and effectiveness of vaccines; concerns about the newness of vaccines; and concerns about the role of politics in the vaccine-development process.
These recent reports related to trust and the government response to the pandemic reveal that America continues to have trust issues related to public health. On the one hand, many citizens do not appear to trust “public health authorities” (a term used here to encompass government officials, public health researchers and scholars, and others who lead the public health enterprise) to protect the public’s health, to communicate truthfully, and to make wise and just decisions that respect the liberties of individuals and organizations while carrying out the public health mission. On the other hand, many public health authorities do not appear to trust the people whom they serve to make prudent decisions to safeguard their own health and the health of their neighbors. Thus, the trust issues that we currently face run in both directions in the relationship between public health authorities and the people they serve.
This essay reflects on the erosion of trust related to public health in the United States. It begins with an exploration of the importance of public trust to the public health enterprise, and then it places the current state of mistrust, distrust, and suspicion in a larger context. As it discusses this larger context, it considers the public-trust impact of pandemic-related restrictions on religious organizations and services. Finally, it encourages public health authorities to take steps to rebuild trust through engagement and partnership, including with faith communities and people of faith.
Public Trust and the Public Health Enterprise
Public trust is vitally important to the public health enterprise, and the success of the enterprise depends upon the public’s trust in the decisions that public health authorities make. Furthermore, the public’s trust depends upon the transparency of government decision-making processes and the legitimacy of the substantive decisions and activities of public health authorities. In their widely respected book Public Health Law: Power, Duty, Restraint, public health law scholars Lawrence O. Gostin and Lindsay F. Wiley highlight the importance of public trust, transparency, and legitimacy in public health activities:
[W]hen government operates in all of its spheres, it should do so transparently, and this is certainly true in the case of public health. The legitimacy of regulation depends on fair and open procedures and the free flow of information about government processes and actions. In turn, legitimacy and trust promote more effective engagement of health officials and scientific experts with the public whose behavior they seek to influence (66).
Gostin and Wiley also explain that “[o]pen forms of deliberation and decision making” (66), which are hallmarks of transparent government, “engender and sustain public trust, which benefits the public health enterprise” (67). Accordingly, governmental transparency in decision-making processes and governmental engagement with citizens and relevant stakeholders fosters public trust and can lead to the sharing of information, the obtaining of input, and the alleviation of concerns.
The success of the public health enterprise also depends upon the scientific knowledge that public health authorities rely upon in making decisions, and such knowledge plays a key role in promoting public trust and lending legitimacy to governmental decisions and activities. In their book, Gostin and Wiley underscore the importance of scientific knowledge in the public health enterprise: “If there is one article of faith in public health, it is that policy should be based on rigorous scientific methodologies. If public health is not grounded in science, its utility is diminished and its legitimacy tarnished” (68). Scientific knowledge is important to the public health enterprise and the public’s trust because scientific knowledge is believed to result from the rigorous application of scientific methodologies; to be more objective than other grounds for decisions; and to be free from political and ideological influences. In an earlier edition of the same book, Gostin issued a pointed warning about the adverse impact of political advocacy on the scientific grounding of public health activities, writing: “Public health gains credibility from its adherence to science, and if it strays too far into political advocacy, it may lose the appearance of objectivity” (41).
Given the importance of public trust to the public health enterprise, the current state of widespread mistrust, distrust, and suspicion is concerning. But it is also important to recognize that the current state of mistrust, distrust, and suspicion has a history in the United States and that this is simply the latest chapter.
Distrust of the People by Public Health Authorities
The public health enterprise and the American people have a complicated relationship that has involved both trust-building and trust-eroding public health activities. During the twentieth century, many public health successes greatly improved the overall health of the American people. These included effective vaccinations, infectious disease control, fluoridated drinking water, cleaner air and water, safer motor vehicles and workplaces, safer and healthier food, improved health of mothers and babies, and declines in deaths from coronary heart disease and stroke. These successes resulted from public health efforts aimed at controlling and preventing diseases and injuries, which constitute the core mission of public health as traditionally understood. These successes served to bolster the public’s trust in the public health enterprise.
However, over the last few decades, public health authorities have sought to broaden the scope of the public health mission and advance a more aggressive public health agenda, and these efforts have contributed to trust erosion. Pursuant to this more aggressive public health agenda, public health advocates seek not only to prevent individuals and other private actors from harming other people, and not only to protect people who are unable to protect themselves from the actions of others, but also to protect competent adult individuals from the potential harm caused by their own actions. Thus, as noted by Gostin and Wiley, public health authorities, acting out of such paternalism, “override a competent person’s expressed preferences to confer a benefit or prevent harm to the regulated individual herself” (45). Additionally, public health authorities have shifted to a “now-dominant social-ecological model” (21) that focuses on social, economic, and environmental causes of diseases and injuries. Accordingly, the “new” public health seeks to expand the public health mission to regulate in a wider array of areas, to undertake more ambitious projects to address root causes, and to use a range of social, economic, scientific, and behavioral tools to promote population health.
Whether or not such paternalism and such a broad public health mission are desirable or justified, these developments, which are advocated by public health authorities, reveal some of the underlying mistrust, distrust, and suspicion held as to the individuals and organizations regulated. Mistrust, distrust, and suspicion are reflected in language used to describe the people and entities affected by public health interventions who are regarded as non-experts whose “lay judgments” are “unscientific” and “irrational” (56-57); who have “limited willpower” (48); and who are “fallible” people with “rationality” “bounded by cognitive biases” (46). Additionally, public health authorities tend to resist constitutional and statutory restraints that limit their authority and the agenda they seek to advance. These restraints include federal and state constitutional limitations on government power and the rights protections in the federal and state constitutions and federal and state statutes. The resistance of public health authorities to such restraints reveals a bias in favor of governmental power and decision-making and against the freedom and decision-making of individuals and organizations. Recent examples include public health initiatives to regulate soda size, fast food restaurants, junk food consumption, and gun ownership.
During the pandemic, this approach was evident in the defense of public health orders by authorities who urged deference to government decisions, tolerance of wide-ranging government restrictions, and acceptance of infringements on constitutional rights. In cases challenging governmental restrictions on places of worship that reached the United States Supreme Court, this approach was evident in the opinions of several justices. For instance, in his opinion concurring in the denial of a church’s application for injunctive relief in South Bay United Pentecostal Church v. Newsom, Chief Justice Roberts urged that broad latitude was warranted for government officials acting “in areas fraught with medical and scientific uncertainties.” The Court assumed the same deferential posture in its denial of a church’s application for injunctive relief in Calvary Chapel Dayton Valley v. Sisolak. Additionally, in their separate opinions dissenting to the Court’s granting of an application for injunctive relief in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, Justices Breyer and Sotomayor (both joined by Justice Kagan) argued that the Court should defer to government officials making decisions related to the public’s health based upon input from the scientific and medical communities. In her opinion, Justice Sotomayor even rebuked other members of the Court for playing “a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.” And, in her opinion (joined by Justices Breyer and Sotomayor) dissenting to the Court’s granting of an application for injunctive relief in Ritesh Tandon v. Newsom, Justice Kagan asserted that the Court “once more commands California to ignore its experts’ scientific findings, thus impairing the State’s effort to address a public health emergency.”
Distrust of Public Health Authorities by the People
During our nation’s history, public health authorities have engaged in some activities that have eroded the public’s trust. At the end of the nineteenth century and into the twentieth century, public health and eugenics were often aligned in goals, leadership, institutions, and policy. In a recent publication, law professor and historian Paul A. Lombardo notes the early twentieth-century association of the two movements: “The goal of public health and eugenics was population health, or the common good rather than the welfare of any individual.” He adds: “In the literature of both public health and eugenics, [the ideas of] prevention and efficiency joined [the idea of] progress, a general faith in the ability of human ingenuity to design and manage a better world, where social problems would eventually be conquered.”
According to Lombardo, “[t]he clearest measure of cooperation between the two fields was in the passage of health laws based on eugenic premises.” These laws, which often targeted the poor, the disabled, and racial and ethnic minorities, included: prohibitions on the issuance of marriage licenses to “defective” individuals; premarital health testing requirements to prevent the inheritance of diseases and other conditions among “unfit” individuals; compulsory sterilization to prevent reproduction by those deemed “unfit”; prohibitions on marriages among disabled individuals or individuals of different races to prevent reproduction, racial mixing, and dilution of bloodlines; and immigration restrictions to screen those deemed to be of “feeblemind” or an “inferior” race. The United States Supreme Court reviewed Virginia’s compulsory sterilization law in Buck v. Bell (1927), and it was in that case that Justice Oliver Wendell Holmes, Jr. made his infamous statement that “[t]hree generations of imbeciles are enough.” In Buck, that statement was immediately preceded by his statement that “[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes” and his citation to Jacobson v. Massachusetts (1905), a Supreme Court precedent frequently cited by public health advocates in support of government power to protect the health, safety, welfare, and morals of the people and in favor of judicial deference to the decisions of public health authorities. Five years after the Court issued its ruling in Buck, the U.S. Public Health Service began its unethical Tuskegee syphilis experiment on hundreds of Black men, which continued over four decades until 1972.
In more recent history, public health authorities have engaged in activities and promoted policies domestically and internationally that have also eroded trust. For instance, in the 1990s, the Kennedy Krieger Institute, which partners with Johns Hopkins Medicine, conducted a multi-year study of lead paint abatement in Baltimore homes that used mostly poor, Black children as “measuring tools.” Additionally, U.S. public health authorities have promoted controversial family planning, abortion, and population control initiatives globally. Furthermore, public health advocates promoted and defended the contraceptive coverage mandate as a measure designed to promote public health and gender equity goals, which the Supreme Court determined in Burwell v. Hobby Lobby Stores violated the federal Religious Freedom Restoration Act. Several states have removed or considered removing religious or philosophical exemptions in compulsory vaccination programs, and Connecticut recently became the latest to end its religious vaccine exemption.
This history of the connection between eugenics and public health and the participation of public health authorities in unlawful and unethical activities helps to explain why many Americans, including people of faith, are at least suspicious of public health authorities. Indeed, distrust of the medical and public health communities by Black Americans is well-documented, and a recent report of the Kaiser Family Foundation demonstrated that this distrust is translating into COVID-19 vaccine hesitancy. State restrictions on houses of worship during the pandemic have also factored into the erosion of trust as public health authorities treated such institutions differently than favored businesses (such as casinos, restaurants, supermarkets, factories, and offices) and subjected religious services to heavier burdens than secular activities (such as participating in political protests, hair styling, gaming, engaging in athletic activities, and watching sporting events). Courts have now determined that some of the restrictions on religious organizations and activities violated the First Amendment, the federal Religious Freedom Restoration Act, or state statutes or constitutions. And, after reviewing another challenge to California’s restrictions, the Supreme Court recently observed in Ritesh Tandon that “[t]his is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. It is unsurprising that such litigants are entitled to relief.”
Rebuilding Trust and Practicing Constructive Engagement
The American experience with the pandemic has highlighted serious underlying trust issues regarding public health authorities. As noted above, there is a history both of public health authorities not trusting the American people and of the American people not trusting public health authorities, and thus the current state of mistrust, distrust, and suspicion is not new. Nevertheless, mistrust, distrust, and suspicion need not be as widespread or as pronounced as they have been or currently are.
Because of the importance of public trust to the public health enterprise, public health authorities should take several steps to rebuild the trust they have played a role in eroding. First, they should acknowledge both their violations of the rights of individuals and groups and the persistent risk of such abuse. As recently highlighted by Lombardo, “the police power, via public health law, is always open to abuse. The history of public health law demonstrates that it has been abused, particularly against society’s most disfavored and most vulnerable members.” A humble acknowledgement that public health authorities themselves have abused and are not immune from abusing those affected by the programs and activities they advocate would be a first step in rebuilding trust.
Second, public health authorities should modify their understanding of governmental power, which has depended heavily on Jacobson v. Massachusetts. Their approach has emphasized expansive police power, discounted individual and organizational rights, and advocated minimal judicial scrutiny. By taking this approach in their pandemic-related restrictions, public health authorities imposed overly restrictive measures, including unlawful restrictions on houses of worship and religious exercise. However, the Supreme Court in its recent rulings on these restrictions on religious freedom rejected this approach and discredited the interpretation of Jacobson advocated by public health authorities. The Court made it clear that public health authorities must shift their approach to one that more appropriately reconciles police power and scientific opinion with constitutional and other legal limitations on that power.
Third, public health authorities should respect the constitutional and other legal limitations on government power, and they should honor the rights of individuals and organizations. As the Court noted in its Cuomo ruling, “even in a pandemic, the Constitution cannot be put away and forgotten.” As to religious freedom specifically, an array of federal and state laws, protections, and doctrines (such as free exercise, church autonomy, religious speech, religious association, equal protection, and parallel provisions in state law) limit public health activities that affect houses of worship and restrict religious services, and these limits must be observed. Furthermore, government officials should use their authority to ensure that public health authorities comply with legal requirements, as the Indiana Attorney General did when he sent letters to Allen County and Indianapolis and Marion County authorities who issued orders that unconstitutionally restricted religious organizations and services.
Fourth, public health authorities should view those regulated by public health activities as valued partners to be constructively engaged. Rather than appealing to expertise and government power, they should recognize that those subject to public health regulations largely share the same interest in protecting the health and safety of people in their communities. And although public health authorities have resisted the application of the strict scrutiny standard, which the Supreme Court in the Cuomo and Ritesh Tandon cases determined was the relevant standard for the challenged restrictions on religious freedom, they should accept (and even welcome) this standard because it will encourage meaningful consultation and constructive engagement with faith leaders and other shareholders and assist authorities in carefully tailoring their measures. Early in the pandemic, the State of Alabama adopted such an approach of constructive engagement with religious leaders and communities. The Alabama governor formed a task force of faith leaders, medical personnel, and the former head of the Alabama Department of Public Health to develop guidelines for reopening houses of worship in Alabama. These guidelines were released at the end of April 2020, and places of worship followed these guidelines (and even supplemented them with additional guidelines and practices) to safeguard parishioners and the public’s health.
Consistent effort for a considerable time will be required to move from the current state of mistrust, distrust, and suspicion to a state of trust. But by taking these steps, public health authorities will gradually rebuild the public’s trust and, in the process, promote the public’s health. ♦
Michael J. DeBoer is the Associate Dean for Academic Affairs and an Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law in Montgomery, Alabama. He specializes in law and religion, public health law, law and bioethics, contract law, and administrative law.
DeBoer, Michael J. “Public Health, Public Trust, and Faith Communities.” Canopy Forum, June 10, 2021. https://canopyforum.org/2021/06/10/public-health-public-trust-and-faith-communities/.