The picture of then New York mayor Michael Bloomberg photo-shopped in a dress was capped with the title: The Nanny: You only thought you lived in the land of the free.

It was a clever advertisement placed in The New York Times in 2012 by the Center for Consumer Freedom to draw attention to the mayor’s ill-fated ban on big-gulp soft drinks. Michelle Mello, Stanford professor of law and School of Medicine professor of health research and policy, thinks it also offers a cautionary tale to scholars in her field of public health law about the way that well-intended policy can foment a backlash.

“When public health law is done right, it is powerful,” she says. But, she explains, this is a fairly new area of health law and public opinion does matter.

“I think there is an argument, but it’s ours to make, as to why there is a role for law and for government in helping people achieve the highest level of health,” Mello says. She lays out key dimensions of good public health law including feasibility, justifiability, and effectiveness.  “Our task is to really understand when leaving health-related choices purely to individuals and markets fails to produce the population health outcomes we want—and why. And it’s our task to identify the solutions—among these, to discover whether and how smart regulatory action and law can help.”

A leading empirical health law scholar who holds a PhD in health policy and administration as well as a JD, Mello was a professor at Harvard School of Public Health before joining the Stanford faculty this year. She also served as a lab fellow at Harvard’s Edmond J. Safra Center for Ethics and directed the school’s Program in Law and Public Health. Her pathbreaking investigations have explored the politics of public health laws, the dynamics of medical malpractice litigation, the effects of medical liability reforms, and how causation and legal and financial responsibility for medical errors are allocated among hospitals, individual physicians, and patients. In 2013, Mello was elected to the Institute of Medicine. She currently serves as a key consultant to the National Program Office of the Robert Wood Johnson Foundation’s program in Public Health Law Research, which was established five years ago to promote effective regulatory, legal, and policy solutions to improve public health.

The seed for Mello’s scholarship was planted early—as an undergraduate at Stanford. “I got interested in social policy here and, later, health,” she says. “When I was a student, I struggled to pay for my education. And my family struggled to help me. I became interested in what we owe to one another, where those obligations come from, and what role the government has in alleviating poverty and vulnerability.” At Stanford, she double-majored in political science and a major of her own design, applied ethics, and was part of the Ethics in Society honors program. She wrote her senior thesis on ethical justifications for ensuring universal access to health insurance.  Twenty years later, exploring these themes continues to be a key focus for her. “It’s still very much what I do.” 

Mello has spent her career studying the effects of law and regulation on health care delivery and health outcomes, building the evidence base for law and policy to promote public health.  She is also a leader in the field, helping to guide the profession.

Today, work in the field is turning toward new challenges. “Public health law has been around for a long time, but historically its focus has been on the prevention and control of infectious diseases, environmental toxins, and more recently injury prevention,” she explains. “But today’s big health juggernauts are different. Noncommunicable diseases—cancer, heart disease, lung disease, diabetes—these are the big killers in the U.S. And public health law is a relative stranger to these health threats.”

As Mayor Bloomberg’s efforts illustrate, this is a very difficult area in which to effect change—people don’t always welcome policy interventions into their eating, drinking, smoking, and living habits. “In many ways these are much harder challenges to address, let alone identify appropriate interventions for. The health risk behaviors and conditions that are contributing to deaths today are particularly hard to ameliorate. For example, dietary risks—we still lack basic public health science about how to be effective in changing people’s behavior in that realm,” she says. 

What, if anything, should lawmakers do in the face of such uncertainty about what works in public health law?  “What we should be aspiring to is a life cycle with public health laws where we experiment based on a reasonable belief that something might have measurable effect, test and evaluate, and then either jettison or refine the intervention,” she says. “Then we disseminate what works. It’s not the way law works most of the time, but that’s my aspiration as to how I might contribute.”

For example, a half century ago, there was heated debate between scientists and the automobile industry about whether taking lead out of gasoline would decrease the amount of lead in the air, leading to reduced levels of lead in the blood and associated health problems. Federal regulators ultimately succeeded in gradually phasing in deleading of gasoline, and they and environmental health researchers carefully measured the effects, showing a clear “dose-response” relationship. Today, deleading of gasoline is considered one of the great public health law success stories.

But it is only after laws are adopted that the benefits can be measured. And that is the trick—to have enough evidence to support a policy change—and public confidence in the need for the change. Policymakers need to build and sustain public confidence by demonstrating that what they are doing is improving health, at reasonable cost. One of Mello’s current projects is investigating whether there is an observable life cycle in public opinion about laws relating to prevention of accidental injuries and noncommunicable health conditions. “We have a hypothesis that initial opposition tends to calm over time, as people learn that a law is effective and doesn’t feel as intrusive as they thought it would,” says Mello. “That’s important because if the policymakers know this opposition they’re facing is ephemeral, then they might be emboldened to act in ways that they otherwise would not.”

Mello offers a few examples: workplace smoking laws, seat-belt laws, motorcycle helmet laws—all of which were loudly opposed but are widely accepted today.

“With the smoking ban, there was wide opposition, in part because of organized efforts by the restaurant industry and others,” she says.  “But when that died down, businesses found that they didn’t lose money, and we have not seen a rollback.” But, Mello cautions, overly heavy-handed legal interventions can misfire—sometimes by simply being judicially overturned, as with the New York large soda ban, and other times in more complicated ways. 

Mello says that some health challenges don’t require new regulation, but a new way of thinking.  An example is her recent research into alternatives to the tort liability system for addressing the problem of medical malpractice. She has been studying whether hospitals can avert litigation and produce better outcomes for themselves, their doctors, and their patients through an open, proactive approach. Hospitals then “acknowledge the error after a determination that the care did not meet the legal standard, they apologize, and they offer compensation,” Mello says. She has been applying this approach, which was pioneered by academic medical centers, including Stanford’s, to settings where there are more limited resources and greater vulnerability to large jury awards because of the absence of strong tort reform laws.  “There are very real challenges to scaling that approach. But it has, I think, the power to be transformative in how we think about the way patients ought to be treated when things go wrong in health care.”

As Mello settles back into life at Stanford, she is looking forward to collaborating with colleagues in law. 

“It’s rare to see so many folks representing different disciplines in one law school,” says Mello, who notes that this is her first faculty position at a law school. “I can’t think of another faculty that has such a large number of extremely distinguished scholars doing empirical work. And after fifteen years, I had grown pretty distant from my roots in the law.”