Strictly speaking, yes, nobody does. But they do supersize their orders of French fries. Certainly, from a public-health point of view, we do a pretty lousy job of making our own choices, even when we know which choices are better for us. “Heart disease is the leading cause of premature death in New York City,” says Frieden. “Exhorting people to eat less and exercise more is totally ineffectual.”
The history of public health in New York City has no shortage of doctors willing to get aggressive; indeed, intervention and regulation are part of the health department’s essential architecture. The difference is that modern public health concerns itself as much with chronic diseases as infectious ones. And this is where Frieden is really making his mark. “He’s done more in his four years than most public commissioners in their whole careers,” says Allan Rosenfield, dean of Columbia’s Mailman School of Public Health. “He’s out in front: He’s going where public health needs to go. And the fact that Mayor Bloomberg is out in front with him is essential.”
But this has made Frieden the ultimate bogeyman for the libertarian-minded, who claim he’s not administering public health but instead creating a nanny state, a program of social engineering. At a public hearing on the trans-fats initiative, Audrey Silk, the activist who founded New York City clash (Citizens Lobbying Against Smoker Harassment) to fight the smoking ban, said to the commissioner, “Your approach to public health shows contempt for the public, contempt for the marketplace, contempt for the principles of autonomy and choice. Our bodies aren’t yet the property of the state, nor yet the city.”
“Whenever he sees anybody smoking in New York City,” says a former aide, “he considers it his fault.”
“That’s the critical issue, personal liberty and public responsibility,” says David Rosner, who teaches the history of public health at Columbia. Bans against trans fats and smoking—which he argues are reasonable measures—are part of public health’s historical trend of privileging the health of the many over the rights of the few. But the question is how far we as a society are willing to push that valuation. “The big test,” Rosner adds, “is when avian flu or sars comes, and it’s not a chronic-disease issue.” That is, how would Frieden’s model of public health treat an immediate emergency?
His track record clearly cuts against individual rights in favor of collective safety. As director of the Bureau of Tuberculosis Control in the early nineties, he successfully sought the detention of TB patients who repeatedly failed to adhere to treatment. And in his current position, he has pushed for a surveillance system to report diabetics’ test results as well as changes to New York law that would waive the requirement to obtain written consent before performing an HIV test. The American Civil Liberties Union has also criticized the health commissioner for his proposals to open HIV-positive patients’ medical files to health officials so that their progress may be monitored.
“It’s awfully Orwellian that the health department could get your labs, call you up, call your doctor up. I’m not sure that’s the kind of health system I want,” says Charles King, the president and CEO of Housing Works, the nonprofit organization that provides housing and services to homeless persons living with HIV/aids. King told me he found Frieden to be intractable: “He believes in what he’s doing to the point of arrogance, and as a consequence doesn’t really listen to outside voices.”
This is, of course, a very old fight, a battle over the extent to which government should be able to employ paternalistic policies: Is it acceptable to remove trans fats from restaurants? How about locking up TB patients? If these are the precedents, what would stop the city from, say, making it punishable by a prison term to have sex if you are HIV-positive? To put anyone who comes off a flight from Hong Kong in quarantine? To remove a child from a mother who drank too much wine during pregnancy?
“The question is whether you want to give that much authority and power to the government,” says Glaeser. “Even if we accept that human beings don’t always make good decisions, you’ve still got to prove that the government would do it better. And, looking at history, this is crazy!”
Frieden has little patience for such philosophical inquiries. He claims he’s simply removing a poison from a consumer product. “Is it nanny to make sure there isn’t lead in people’s paint?” he said. “No. I mean, come on. So you can have a healthy life without having to go the extra mile, that’s what I’m doing.”
The libertarian arguments are worrisome—and it’s certainly easy to make up hysterical lists of things that could be banned next. (Wild Turkey and Jack Daniels outlawed! One-cheeseburger-a-week limit, no bacon!) But the Board of Health’s passage of the trans-fat ban earlier this month gives Frieden the authority to do the following: remove trans fats from restaurant food. It’s not carte blanche to take away other vices or imprison the infectious or invade people’s privacy. The fact that the proverbial slope is proverbially slippery just means, perhaps, that in these sorts of cases we have to check our footing now and then, making certain that we act to protect essential civil liberties but also accepting a reasonable public health measure for what it is.