How to Counter Preemption Laws That Can Undermine Health Equity

While special interests in many states attempt to block progress toward health equity, local communities are shaping solutions to give everyone a fair and just opportunity for health.

A major milestone in our nation's struggle for civil rights was the 1954 Brown vs. Board of Education ruling, in which the U.S. Supreme Court ruled that state-sponsored segregation in public schools was inherently unequal and thus unconstitutional. With that ruling, the federal government preempted state and local laws that mandated or allowed for segregation in public schools.

Preemption, then used to advance racial justice, is now regularly wielded by states to undermine it. In a four-part series, RWJF staff and grantees explored how special interests are using preemption to thwart local decisionmaking and impede progress toward health equity—and what we can do about it.

1.  Challenge Systems of Oppression

More than 400 preemption bills were filed in state legislatures in 2021 and nearly 300 are being considered this year. In many cases, these bills obstruct efforts to dismantle systems of oppression, support public health, and advance policies that improve equity and civic participation, write Katie Belanger of the Local Solutions Support Center and my colleague, Matt Pierce.

Corporations and lobbyists often lead preemption efforts, supporting laws to thwart local governments’ attempts to enact paid sick leave, protect residents from pollution, regulate tobacco, and more. Some state legislatures are also curtailing local authority over elections, education, and public health. For example, a Florida bill undermines residents’ ability to engage in protest and reform the criminal legal system. Black-led groups, such as The Black Collective and the Florida State Conference of the NAACP, have been at the forefront of challenging this policy through organizing and the courts.

A growing body of research demonstrates the harm—including lower life expectancy, high infant mortality, and worse overall health—associated with preemptive laws that subvert efforts designed to advance racial and health equity. They also cause a chilling effect, making local leaders wary to even consider and debate local policies because of possible legal and financial penalties from state governments. Public health and racial equity leaders can and must counteract these threats and pursue a positive vision for policymaking that centers priorities and solutions of communities most impacted by structural discrimination.

2.  Uphold Public Health Authority

Within months of when the pandemic hit, 39 states issued stay-at-home orders and 20 issued travel restrictions, write my colleague, Monica Hobbs Vinluan, and Sarah de Guia of ChangeLab Solutions. Some localities even suspended evictions and water and utility shutoffs.

But other states prevented local governments from acting. In Arizona, the governor issued an executive order prohibiting any county, city, or town from “restricting persons from leaving their home due to the COVID-19 public health emergency.” Iowa’s governor and state attorney general informed local officials that cities and counties lack the authority to close businesses or order people to stay at home. The Georgia governor sued Atlanta’s then-mayor when she attempted to protect residents with a mask mandate.

The result? States that preempted public health protections had many more preventable deaths and many local governments lost the authority to protect people from the contagion. This is especially harmful since these policies sought to protect those who were being disproportionately harmed by COVID-19, including people of color and workers in low-wage jobs.

But there has been progress. With support from the Local Solutions Support Center and Act for Public Health, coalitions in Alabama, Oklahoma, and Texas recently helped block bills that would have undermined the independence of local public health agencies and/or weakened public health officials’ ability to respond to public health emergencies. Hobbs Vinluan and de Guia recommend making public health more visible, teaching public health students about public health law so they are prepared to defend their work, increasing funding for public health, and incentivizing and strengthening the public health workforce with supports such as loan repayment and a modernized public health curriculum.

3.  Champion Tobacco Control

The use of commercial tobacco products is a leading cause of preventable death in the United States. For decades, predatory marketing targeted Black communities with menthol advertising, driving health disparities, write Cynthia Hallett of Americans for Nonsmokers’ Rights and Delmonte Jefferson of the Center for Black Health and Equity. But local communities have long resisted tobacco. As early as 2005, 540 localities raised the age minimum to purchase commercial tobacco products to 21, well before the federal government did so.

Rather than challenging tobacco control policies city by city, the tobacco industry has persuaded state legislators to preempt tobacco control laws. For example, last year Florida’s governor signed a bill raising the state’s tobacco purchasing age to 21, while stripping local governments of power to regulate the sale and marketing of commercial tobacco. Since federal law already banned the sale of tobacco to youth under 21, the bill’s public health provisions were nearly meaningless but its clause preempting local tobacco control was harmful. Similarly, 13 states have preempted local governments from adopting smoke-free air policies, preventing cities from going further than the states do to regulate smoking in workplaces.

Since smoking-related diseases are the number one cause of death among Black people in the United States, advancing health equity requires restoring local control over tobacco regulation. In Tennessee, public health advocates did just that, restoring local power through a law allowing cities and counties to set tobacco control policies for their communities. Similarly, in 2019 advocates successfully lobbied the Colorado legislature to repeal its tobacco preemption law.

4.  Advance Family-Supportive Policies

Paid family and medical leave and a living wage have been shown to benefit working families and businesses and improve health and health equity. Yet most working people in the United States are without access to these popular policies, write my colleague, Mona Shah, and Vicki Shabo of the New America Foundation.

The benefits of these family-supporting policies include reducing infant hospitalization and mortality, increasing on-time vaccinations, and improving employee retention and health. Yet as many as 23 states have stopped local governments from enacting their own paid leave or paid sick time policies, and 27 have barred local authorities from increasing the minimum wage. Despite these setbacks, advocates and organizers, like the National Employment Law Project and PowerSwitch Action and its affiliates, are continuing to build support for policies that protect workers and families.

Moving Toward a Healthier, More Equitable Future

Social change happens when communities organize themselves, shape effective solutions, and mobilize with allies—including those in government—to foster new, more just systems addressing health, economic wellbeing, and neighborhood conditions.

In the last decade, state preemption has created new barriers to social progress, yet organizers, advocates, local lawmakers and allied legal experts and researchers are showing a way forward. They are documenting the harms of state preemption. They are making the case for local innovation and action. And they are building stronger alliances within and across states to advance policies that give everyone a fair and just opportunity for health.

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About the Author

Giridhar Mallya, RWJF senior policy officer, is a public health physician and health policy expert. Working to advance the role of policy in achieving a Culture of Health, particularly at the state and local level, he views the Foundation as “a national leader in marshaling the evidence used to shape policies that foster healthier people, communities, and institutions.”