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March 10, 2022
Public Health COVID-19
Sep 8, 2021
Apr 15, 2021
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In 1970, after a decade of struggle on the part of labor, and a decade of rising industrial accident rates, the Occupational Safety and Health Administration (OSHA) was established. As the first federal agency with the power to inspect the workplace, its mandate was to protect the health and safety of American workers from known hazards of the job. In its early years, particularly during President Jimmy Carter’s administration and under the leadership of Eula Bingham, OSHA established rules and regulations limiting the amounts of asbestos, lead, cadmium, vinyl chloride, silica, and other materials that workers could be exposed to. Workplaces became safer as rules were put in place governing lighting, ventilation, cleanliness, machinery safety, and personal protection, including dust masks, helmets, safety shoes, and other equipment in places where workers’ lungs and limbs were obviously at risk. These rules immeasurably improved the health and safety of American workers.
Almost from the start, businesses organized to undermine this agency, challenging through public opinion campaigns and in court cases the right of OSHA to inspect businesses or even levy fines. In the 1970s and 1980s, organizations like the Heritage Foundation, and the Cato Institute, along with trade associations for the asbestos, sandblasting, foundry and lead industries, attacked the agency on a wide front. OSHA was portrayed as an example of the heavy hand of government intruding in the free market and tramping on the rights of workers to make their own decisions. Particularly during periods of economic recession, it was portrayed as an example of government overreach. With the election of Ronald Reagan in 1980, the antiregulatory movement reached a zenith and the agency went into a long period of defensive inaction, with few new regulations put in place in the following decades. Under President Reagan, Thorne Auchter, the OSHA administrator, joined Anne Gorsuch at the Environmental Protection Agency as two classic examples of administrators who sought to undermine their own agencies. The Obama administration’s appointment of David Michaels as an activist administrator marked a modest reawakening of the agency, only to be squelched during the Trump administration.
Undergirding much of the legal and intellectual rationale for incapacitating OSHA was an argument rooted deep in American history: that government should not interfere in the free market and that the police powers to regulate public health resided in state, not federal, agencies. The Heritage Foundation, a conservative think tank, recently issued a report on the decline of “economic freedom,” which argued that the “U.S. government should . . . roll back misguided COVID-19 policies”; and Ilya Shapiro, the Cato Institute’s former vice president, argues that the federal government, even in the face of a worldwide pandemic that has killed nearly one million Americans, mostly working-class people and “first responders,” should play no role in the “regulation of workplace conditions.”
The specific focus of conservatives’ recent ire is the effort by the Biden administration, and specifically OSHA, to find ways of stemming the pandemic through mandates for either vaccination or regular testing of workers in corporations with more than 100 employees. This effort stemmed from an executive order Biden issued on his first day in office, which demanded that the agency issue an emergency temporary standard to protect workers from the virus. Faced with organized resistance to voluntary masking and massive resistance to vaccination, in November 2021 OSHA and its supporters in the labor and public health communities argued that a nationwide epidemic in its third year demanded a nationwide response. OSHA’s argument was clear: A scientific consensus exists that vaccines, testing, and masks are effective means of limiting the transmission of disease, and OSHA, as the agency charged with the protection of the health and welfare of the American worker, had an obligation to do just that by encouraging compliance with self-evident public health measures.1,2 To protect workers in settings where the COVID-19 virus could easily spread through the air, it was necessary for OSHA to mandate that workers either get vaccinated or wear masks and undergo weekly tests.
Immediately, OSHA’s effort was challenged in court, and it took little time for the Supreme Court to undo this simple measure to protect the American workforce. In January 2022, the 6-3 conservative majority blocked OSHA, adopting the arguments of the conservative think tanks, a host of industry groups, and even the Republican National Committee. The arguments made by conservatives on the court generally placed the right of individuals to defy public health measures above the right of others to be protected from life-threatening disease. In the process, an attack on the public’s health has become a proxy for a much broader attack on the federal government’s authority.3
Such a gross decision to force the agency to abdicate its responsibility to protect the US workforce from disease is shocking on its face and is a unique moment in American public health history. After World War II, two travelers appeared to bring smallpox to New York City and, despite the fact that there never was an epidemic or any proof that the disease had spread, hundreds of thousands of New Yorkers lined up to be vaccinated. Some of us can still remember the polio vaccination campaigns of the 1950s and 1960s, when millions of American mothers and fathers nationwide brought their children to clinics to receive the Salk and Sabin vaccines. The fear of polio was palpable, but it should be remembered that, even at its height, polio disabled 35,000 people and killed far fewer, in contrast to the approximately one million Americans, 1 in every 312 people in the country, who has died of COVID-19-related complications since the pandemic began.
The Supreme Court’s ruling has eerie echoes of another infamous Supreme Court ruling. In 1905, after years of bakery workers protesting the long hours they were required to labor in hot, dusty, and dangerous basement bakeries, New York State passed laws limiting the number of hours that bakers and children could labor in any given day. At the time, bakery owners demanded their employees work up to 18-hour shifts, and New York State passed legislation limiting hours of work to 60 hours per week. In Lochner v. New York, the Supreme Court overruled the State, arguing that the state law infringed on “the right and liberty of the individual to contract,”4 an argument that was widely criticized by jurists at the time and by history, because workers had no “liberty to contract” other than to leave their job and face unemployment. Today, we see another conservative court, in a parody of Lochner, again misuse the first amendment to cut away public health’s abilities to protect the nation. Even John Stuart Mill, who provided the clearest argument for the rights of the individual over the state, ascribed to the idea that when it came to public health personal liberty could be constrained when it posed a threat to others. The Supreme Court and all who enable it should be ashamed.
Address correspondence to: David Rosner, Center for the History & Ethics of Public Health, Columbia University Mailman School of Public Health, 722 West 168th St, Rm 934, New York, NY 10032 (email: DR289@columbia.edu).
David Rosner is the Ronald H. Lauterstein Professor of Sociomedical Sciences and professor of history at Columbia University and codirector of the Center for the History of Public Health at Columbia’s Mailman School of Public Health. He is also an elected member of the National Academy of Medicine. In addition to numerous grants, he has been a Guggenheim Fellow, a recipient of a Robert Wood Johnson Investigator Award, a National Endowment for the Humanities Fellow, and a Josiah Macy Fellow. He and Gerald Markowitz are coauthors on ten books, including Deceit and Denial: The Deadly Politics of Industrial Pollution (University of California Press/Milbank, 2002; 2013) and Lead Wars: The Politics of Science and the Fate of America’s Children (University of California Press/Milbank, 2013). He also testifies for plaintiffs in lawsuits on industrial pollution and occupational disease.
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