As a former state legislator and foundation CEO, I worry about how the majority opinion of Chief Justice John Roberts on the constitutionality of the Affordable Care Act of 2010 (National Federation of Independent Business v. Sebelius) may affect our approach to prevention programs. Funding environmental health may be the best way to go.

In its ruling on the individual mandate, the court came down hard against the authority of the federal government to tell individuals what they can or cannot do. In its ruling on the Medicaid expansion, it limited the federal government’s ability to “coerce” states to accept new national health programs by threatening to withhold federal dollars for existing programs.

Both of these court rulings could influence the way that funders think about public health and prevention in the future, as well as the sustainability of prevention programs they begin.

There are really only two ways to do prevention, and both have champions in the funder community.

The first option is to focus on individuals—that is, to get them to change their behaviors. A national example is the wonderful Let’s Move program, a joint effort of First Lady Michelle Obama and the Partnership for a Healthier America.

However, despite this (recent) compelling call to action…

Over the past three decades, childhood obesity rates in America have tripled, and today, nearly one in three children in America are overweight or obese. The numbers are even higher in African American and Hispanic communities, where nearly 40% of the children are overweight or obese. If we don’t solve this problem, one third of all children born in 2000 or later will suffer from diabetes at some point in their lives. Many others will face chronic obesity-related health problems like heart disease, high blood pressure, cancer, and asthma. (Source: Let’s Move website).

…the Let’s Move campaign is essentially just promoting lifestyle change through education–and, clearly, nothing in a court decision limiting federal mandates on individuals and states is going to open the door to much more.

The second option for funders is to focus on communities—that is, to change the environments in which people live. When people hear the phrase “environmental health,” they usually first think of big things like climate change, ozone depletion, carcinogenic chemicals, and oil spills in ocean water. But numerous examples of community-level environmental health programs can be found in the work of members of the Health and Environmental Funders Network (HEFN) or the Environmental Grantmakers Association.

Here are some community-focused grants. In just the area of promoting healthy food and water supplies, for example, the Ben and Jerry’s Foundation has given a grant to the Dakota Resource Council in North Dakota to promote and preserve sustainable agriculture and manage the effects of increased oil production as part of its National Grassroots Grants Program. And, among a host of Healthy Neighborhood grants, the Blue Cross and Blue Shield of Minnesota Foundation gave one to the Bagley Independent School District for its From the Ground Up program to improve nutrition through the creation of community gardens. The California Wellness Foundation, which includes environmental health as one of its eight funding priorities, has, for example, awarded dollars to the Clean Water Fund local program in San Francisco and the Community Water Center in Visalia, California, to promote cleaner drinking water.

So, why should the Supreme Court’s decision on the Affordable Care Act affect a choice between funding prevention programs focused on individuals and those focused on communities?

In writing for the majority, Chief Justice Roberts did something hyperbolic and unusual. He wrote in reference to the individual mandate in the law:

To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. See, e.g., Dept. of Agriculture and Dept. of Health and Human Services, Dietary Guide­lines for Americans (2010). The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to pur­chase insurance…. Under the Gov­ernment’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. (Source: National Federation of Independent Business v. Sebelius, Roberts Opinion, p. 22–23)

Comparing the purchase of insurance to the purchase of vegetables has been used as a punch line and evoked mostly laughter, but I think that the chief justice was making a point that shouldn’t be overlooked. Can the federal government order individuals to do, or not to do, anything at all to protect their health—even when we know for a fact that that such an order could save lives and reduce health care costs?

As I understand it, his answer appears to be no.

So what about the states, then—in the presence of diminished federal authority to tie new health programs to funding for existing ones as a result of the ruling, will states be more inclined to work with funders to change individuals’ behaviors in the interest of public health?

Maybe, but it depends on the state. When I was in the Connecticut legislature, I appreciated the broad latitude given to states to protect and promote the health of their residents and we put a lot of effort into funding prevention programs focused on both individuals and the environment. But, then, Connecticut ranks third in the most recent United Health Foundation America’s Health Rankings. And when I left the state legislature there, the state was ranked eighth. The two states I’ve lived in since, Florida and Texas, rank thirty-third and forty-fourth, respectively, on the latest list. With more than 44 million Americans living in them, they may need a federal boost if they don’t improve soon.

But they won’t get one from this Supreme Court decision.

In the absence of a federal mandate, the dividing lines between local politics and constitutional law are not always clear:

* Had the chief justice’s words been with us back in the 1980s, states may not have succeeded in banning smoking in public places, because telling people that they couldn’t smoke was seen as forcing people to behave in a certain way. Smoking was simply an “adult custom,” we were told by tobacco company lobbyists, and the “decision” to smoke was akin to deciding what to eat.

* And states may not have been rescued from the major public health policy quagmire of that decade if the Supreme Court in 1987 had not taken ownership of the way we treated people infected or perceived to be infected with HIV with its decision in the School Board of Nassau County v. Arline case.

So what would I do if I worked for a foundation today? I would be reluctant to fund the kind of prevention strategies that may be in the crosshairs of the Supreme Court, unless I got an upfront commitment from a state or a county to sustain them. I would dial back my efforts to change the behavior of individuals and put my money into changing the environment.