Equity First: Conceptualizing a Normative Framework to Assess the Role of Preemption in Public Health

Policy Points Preemption is a legal doctrine whereby a higher level of government may limit or even eliminate the power of a lower level of government to regulate a certain issue. Some state legislatures are using preemption with increasing regularity to thwart local policies that have the potential to reduce health inequities. Despite recent trends, preemption is not inherently adversarial to public health, equity, or good governance but rather reflects its wielder's goals and values. Existing frameworks for assessing preemption fail to reconcile its potential to both advance and hinder health equity. An equity-first preemption framework can facilitate case-by-case assessments of whether preemption is likely to worsen inequities or whether it is an appropriate response to address existing inequities. Robust empirical evidence is needed to develop and operationalize such a framework.

Due to the inequitable distribution of various social determinants of health, disparities in health and well-being are tied to where an individual lives. In the United States, a zip code often better predicts a person's health than their genetic code. As communities seek to redress these inequities, many find that, due to state preemption, their zip code also dictates their ability to pursue more equitable laws through local government action. Preemption is a legal doctrine whereby a higher level of government may limit or even eliminate the power of a lower level of government to regulate a certain issue.

We conducted a literature review to survey existing scholarship about the effects of preemption on public health and health equity using online databases such as PubMed, WestLaw, and Google Scholar. We also cohosted a series of cross-sector, interdisciplinary research convenings with preemption, public health, and equity experts. Based on our findings, this article reviews the role of law and policy in the genesis of health inequities and highlights how preemption has both created and alleviated such inequities. We demonstrate how a normative framework rooted in redressing health inequities can advance a more just approach to preemption and outline a research agenda to support future action.

Law and policy have been central to creating health inequities, and while those same tools can promote health equity, some state legislatures are using preemption with increasing regularity to thwart local policies that may improve health and equity. Nevertheless, preemption is not inherently adversarial to public health, equity, or good governance. Preemptive federal civil rights laws, for example, have countered government-sanctioned discrimination. However, existing frameworks for assessing preemption fail to reconcile its potential to both advance and hinder health equity.

Shortcomings in existing preemption frameworks demonstrate the need for new approaches to elevate equity as a central consideration in assessing preemption. We propose the development of an equity-first preemption framework to establish evidence-based criteria for assessing when preemption will enhance or inhibit equity and a research agenda for developing the evidence necessary to inform and operationalize the framework. An equity-first reconceptualization of preemption can help ensure that local governments remain places of innovation while allowing states and the federal government to block local actions that are likely to create or perpetuate inequities.