Role of State Attorneys General in Health Policy

The 50 US state attorneys general are powerful but underrecognized participants in establishing and refining health policy. Much of their work protects the public's health, but arguably, they can obstruct health goals. As a state's chief legal officer, an attorney general enjoys broad powers and can pursue a wide range of actions on the state's behalf. An amalgamation of laws, from states' constitutions, statutes, and judicial opinions, grants state attorneys general the power to protect the public interest.¹ For example, state attorneys general can litigate to protect consumers or redress environmental law violations. They represent state agencies when legal challenges arise and issue written opinions solicited by these agencies or their state's governor. Additionally, state attorneys general can advocate for change through interviews and press releases.

Forty-three states elect their attorneys general by popular vote; the remaining states use appointments or special elections. Because many state attorneys general seek reelection and some aspire to hold another elected position, such as governor, their actions are often perceived to be influenced by the political will of their state's voters.

Moments after President Obama signed the Patient Protection and Affordable Care Act on March 23, 2010, 13 state attorneys general challenged the health care reform legislation in a Florida federal court. As advocates celebrated the historic law, the state attorneys general alleged that Congress had failed to respect the states' sovereignty and had illegally exceeded the powers granted to it by the US Constitution.² Specifically, the state attorneys general contested changes that the law will make to the Medicaid program, the costs of which are shared by the federal and state governments. To date, 7 additional states have joined the Florida lawsuit, many at the behest of their attorneys general. Virginia's attorney general filed a separate lawsuit, arguing that the health care reform law conflicts with a newly enacted Virginia law protecting state residents who wish to decline health insurance coverage. Although legal scholars are debating these lawsuits' viability and the ramifications of legal activism by state attorneys general, participating state attorneys general believe their lawsuits, as valid efforts to protect state sovereignty, will reach the US Supreme Court and lead to a decision nullifying this congressional act.³

The lawsuits have caused concern about the efforts of some state attorneys general to thwart health care reform. Edward G. Rendell, governor of Pennsylvania, chastised his attorney general for joining the Florida lawsuit, writing, “It's hard to imagine that you take this action on behalf of those who may be sick or have a chronic illness but are uninsured.”⁴ This sentiment is understandable; the lawsuit appears to be crafted to fuel national controversy and ultimately overturn legislation that will provide millions of uninsured individuals with health care coverage. For many, it is difficult to reconcile this with the knowledge that the Florida and Virginia lawsuits were initiated by elected officials charged with protecting the public interest.

The sting of this incongruity can be lessened by recognizing that these lawsuits fall well outside the usual endeavors of state attorneys general to safeguard the public interest. For at least the last 2 decades, state attorneys general have been increasingly visible supporters of health care professionals and public health practitioners through litigation and law enforcement, investigative activities, and law and policy reform work. Particularly in recent years, state attorneys general have used their legal charge to protect the public interest as grounds to influence the development and implementation of policies to advance public health and medical care (Table). Additional research, however, is needed to develop a more nuanced understanding of the association between the actions of state attorneys general and improved health.

In the health policy arena, state attorneys general are perhaps best known for their groundbreaking tobacco control efforts. During the mid-1990s, Mississippi's attorney general, Michael Moore, changed the nation's approach to litigation against the tobacco industry.^{5 (p401-448)} Moore sued “big tobacco” to recover costs incurred by Mississippi's Medicaid program for treating individuals' smoking-related diseases. More than 40 state attorneys general brought similar lawsuits, leading to the Master Settlement Agreement in 1998. The agreement required the major tobacco companies to pay $206 billion to the states and restricted their ability to advertise cigarettes.

The Master Settlement Agreement depended on the concerted efforts of state attorneys general. In recent years, state attorneys general have joined forces to confront other health challenges, such as illegal off-label marketing of drugs by pharmaceutical companies, resulting in multi-million-dollar settlements and injunctions against harmful corporate behaviors.⁶ State attorneys general have also acted individually, using varied powers to address particular health threats. In the 1990s, Massachusetts' attorney general used his consumer protection powers to promulgate regulations requiring firearms to contain safety features that lessened the likelihood of unintentional injuries or deaths. In 2009, Connecticut's attorney general used his investigatory power to examine an industry-backed food labeling program that identified foods of questionable nutritional value as Smart Choices. Days later, the Food and Drug Administration announced plans to take regulatory action against misleading food labels. The Smart Choices program subsequently ceased its operations.⁷

In addition to using well-established powers, state attorneys general can advocate to support the efforts of health care professionals and public health practitioners. Because they sit at the intersection of a state's legislative, executive, and judicial branches, state attorneys general have a powerful bully pulpit from which to bring attention to health issues.⁸ They can capitalize on their high-profile positions by inviting experts to convene and analyze pressing health concerns. Earlier this year, Vermont's attorney general held a summit with health professionals to discuss his office's approach to obesity prevention.⁹

Faced with the Florida and Virginia lawsuits, several state attorneys general have shared plans to use formal and informal powers to defend the health care reform law. Some state attorneys general have issued public statements expressing their concerns about the Florida lawsuit. Oregon's attorney general has indicated that he, along with the attorneys general of Iowa and Vermont, intends to file a brief to support the contested legislation.¹⁰ Even though these recent developments have received far less media attention than the Florida and Virginia lawsuits, the work of Oregon's attorney general and others best reflects the more customary role of state attorneys general as protectors of the public's health and allies of those who work to maintain it.