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Chapter One

Public Health Law, Ethics, and Human Rights:
Mapping the Issues


[Editor’s Note: The tables and figures have been removed from this full-text web version of Chapter One. A PDF version of this chapter is available from the University of California Press.]

           

This Reader offers an organized selection of government reports, scholarly articles, and court cases on public health law, ethics, and human rights. The publication of a Reader on these subjects may suggest that a coherent, systematic understanding of the relationships between public health law, ethics, and human rights exists. Despite the deep traditions in these separate fields, they have rarely cross-fertilized. For the most part, each of these fields has adopted its own terminologies and forms of reasoning. To the extent that scholars in law, ethics, or human rights have engaged in sustained examinations of issues in health, they have written principally about medical care. This introductory chapter maps the important features of, and issues in, these respective fields as they pertain to the theory and practice of public health. Part I of the Reader explores public health, ethics, and human rights in more detail. Part II examines major issues in public health law, including constitutional, administrative, and tort law. Part III focuses on some of the major controversies and tradeoffs involved in public health theory and practice. And Part IV conceptualizes a vision for public health in a new century.

 

I. Public Health

In thinking about the application of ethical or human rights to problems in public health, it is important first to understand what we mean by public health. How is the field defined and what is its content—its mission, functions, and services? Who engages in the practice of public health—government, the private sector, charities, community-based organizations? What are the principal methods or techniques of public health practitioners? In truth, finding answers to these fundamental questions is not easy because the field of public health is highly eclectic and conflicted (Beaglehole and Bonita 1997). For a summary of the definition, mission, functions, and jurisdiction of public health, see Table 1.1.

Definitions of public health vary widely, ranging from the utopian conception of the World Health Organization of an ideal state of physical and mental health to a more concrete listing of public health practices. Charles-Edward A. Winslow (1920, 30), for example, defined public health as “the science and the art of preventing disease, prolonging life, and promoting physical health and efficiency through organized community efforts for the sanitation of the environment, the control of community infections, the education of the individual in principles of personal hygiene, [and] the organization of medical and nursing service for the early diagnosis and preventive treatment of disease.” More recent definitions focus on “positive health,” emphasizing a person’s complete well-being (Lancet Editorial 1997, 229). Definitions of positive health include at least four constructs: a healthy body, high-quality personal relationships, a sense of purpose in life, and self-regard and resilience (Rowe and Kahn 1998).

The Institute of Medicine (IOM) (1988, 19), in its seminal report on the Future of Public Health, proposed one of the most influential contemporary definitions: “Public health is what we, as a society, do collectively to assure the conditions for people to be healthy.”

The IOM’s definition can be appreciated by examining its constituent parts. The emphasis on cooperative and mutually shared obligation (“we, as a society”) reinforces that collective entities (e.g., governments and communities) take responsibility for healthy populations. Individuals can do a great deal to safeguard their health, particularly if they have the economic means to do so. They can purchase housing, clothing, food, and medical care. Each person can also behave in ways that promote health and safety by eating healthy foods, exercising, using safety equipment (e.g., seatbelts and motorcycle helmets), or refraining from smoking, using illicit drugs, or drinking alcoholic beverages excessively. Yet, there is a great deal that individuals cannot do to secure their health and, therefore, these individuals need to organize, build together, and share resources. Acting alone, people cannot achieve environmental protection, hygiene and sanitation, clean air and surface water, uncontaminated food and drinking water, safe roads and products, and control of infectious disease. Each of these collective goods, and many more, are achievable only by organized and sustained community activities (Gostin 2000a).

The IOM definition also makes clear that even the most organized and socially conscious society cannot guarantee complete physical and mental well-being. There will always be a certain amount of injury and disease in the population that is beyond the reach of individuals or government. The role of public health, therefore, is to “assure the conditions for people to be healthy.” These conditions include a variety of educational, economic, social, and environmental factors that are necessary for good health.

Most definitions share the premise that the subject of public health is the health of populations—rather than the health of individuals—and that this goal is reached by a generally high level of health throughout society, rather than the best possible health for a few. The field of public health is concerned with health promotion and disease prevention throughout society. Consequently, public health is less interested in clinical interactions between health care professionals and patients, and more interested in devising broad strategies to prevent, or ameliorate, injury, and disease.

Scholars and practitioners are conflicted about the “reach” or domain of public health. Some prefer a narrow focus on the proximal risk factors for injury and disease. The role of public health agencies, according to this perspective, is to identify risks or harms and intervene to prevent or ameliorate them. This has been the traditional role of public health, exercising discrete powers such as surveillance (e.g., screening and reporting), injury prevention (e.g., safe consumer products), and infectious disease control (e.g., vaccination, partner notification, and quarantine).

Others prefer a broad focus on the sociocultural foundations of health. Those favoring this position see public health as an all-embracing enterprise bonded by the common value of societal wellbeing. They claim that the jurisdiction of public health reaches “social ills rooted in distal social structures.” (Meyer and Schwartz 2000). Ultimately, the field is interested in the equitable distribution of social and economic resources because social status, race, and wealth are important influences on the health of populations (Marmot and Wilkinson 1999). This inclusive direction for public health is gaining popularity; many of the government’s health objectives for 2010 seek reductions in health disparities. Figure 1.1 illustrates the determinants of health according to Department of Health and Human Services (2000)— physical environment, behavior and biology, and social environment. Using this vision, public health researchers and practitioners have ventured into areas of general social policy including violence, war, homelessness, and discrimination (Breakey 1997).

The expansive view of public health may well be justified by the importance of culture, poverty, and powerlessness on the health of populations. Yet, to many, this all-embracing notion is troublesome. First, there is the problem of excessive breadth. Almost everything human beings undertake impacts the population’s health, but that does not justify an overly-inclusive definition of public health. The field of public health appears less credible if it appears to overreach.

Second, there is the problem of expertise. Admittedly, the public health professions incorporate a wide variety of disciplines (e.g., occupational health, health education, epidemiology, and nursing) with different skills and functions. But public health professionals do not possess all the skills necessary to intervene on behavioral, social, physical, and environmental levels (e.g., competence in behavior sciences, economics, and engineering).

Finally, there is the problem of political and public support. By espousing controversial issues of economic redistribution and social restructuring, the field risks losing its legitimacy. Public health gains credibility from its adherence to science, and if the field strays too far into political advocacy, it may lose the appearance of objectivity.

If public health has such a broad meaning, then who engages in the work of public health—government, the private sector, academia, charities, community-based organizations? At the governmental level, public health has a significant jurisdictional problem. Even the most powerful public health agency cannot exercise direct authority over the full range of activities that affect health. Many of the determinants of health are normally the province of other agencies (e.g., agencies concerned with education, agriculture, transportation, housing, child welfare, and criminal justice). Furthermore, much of the behavior that public health authorities try to change (e.g., exercise and diet) is not subject to direct legal regulation at all. At the same time, many of the institutions that affect the public’s health are not within government, such as managed care organizations, business and labor, community-based groups, and academic institutions (Gostin, Burris, and Lazzarini 1999; Bowser and Gostin 1999). Thus, scholars need to consider the actors who carry out the work of public health. It matters a great deal in law and ethics to understand who is acting, with what authority, and with what resources. For example, society is prepared to allow government to wield powers to coerce (e.g., tax, inspect, license, and quarantine) that would be unacceptable in the private sector.

What are the principal methodologies of public health practitioners? Because of the field’s broad sweep, the techniques of public health are highly diverse (Sommer and Akhter 2000). For example, public health practitioners monitor health status, calling for skills in epidemiology and biostatistics; inform and educate the public, calling for skills in education and communication; and create health policy and enforce law, calling for skills in leadership and politics. This description does not account for the many subjects in the field of public health requiring expertise in domains such as infectious diseases (e.g., virology and bacteriology), the environment (e.g., toxicology), and injuries (e.g., behavioral and social sciences). As the IOM (1988) observed: “public health's subject matter. . . necessitate[s] the involvement of a broad spectrum of professional disciplines. In fact, . . . public health is a coalition of professions united by their shared mission.”

As illustrated in Figure 1.2, the field of public health is caught in a dilemma. If it conceives itself too narrowly then public health will be accused of lacking vision. It will fail to see the root causes of ill health and fail to utilize a broad range of social, economic, and behavioral tools necessary to achieve healthier populations (McGinnis and Foege 1993). At the same time, if it conceives itself too expansively then public health will be accused of overreaching and invading a sphere reserved for politics, not science. It will lose the ability to explain its mission and functions in comprehensible terms and, consequently, to sell public health in the marketplace of politics and priorities (Burris 1997b).

 

II. Public Health Law

 

As we have just seen, the question “What is Public Health?” is much more difficult than it first appears. Despite the lack of conceptual clarity, it is important to study carefully the legal foundations of public health, its ethical dimensions, and its relationship to human rights.

The preservation of the public health is among the most important goals of government. The enactment and enforcement of law, moreover, is a primary means with which government creates the conditions for people to lead healthier and safer lives. Law creates a mission for public health authorities, assigns their functions, and specifies the manner in which they may exercise their authority (Gostin, Burris, and Lazzarini 1999). The law is a tool in public health work which is used to influence norms for healthy behavior, identify and respond to health threats, and set and enforce health and safety standards. The most important social debates about public health take place in legal fora—legislatures, courts, and administrative agencies—and in the law’s language of rights, duties, and justice. It is no exaggeration to say that “the field of public health . . . could not long exist in the manner in which we know it today except for its sound legal basis” (Grad 1990, 4).

Despite its importance, there is a scarcity of legal scholarship relating to public health. In the companion text I define public health law as “The study of the legal powers and duties of the state to assure the conditions for people to be healthy and the limits on that power to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for protection or promotion of community health.” Five characteristics help distinguish public health law from the vast literature on law and medicine (Figure 1.3): (1) the role of government in advancing the public’s health; (2) the population-based perspective; (3) the relationship between the people and the state; (4) the services and scientific methodologies; and (5) the role of coercion.

Public health law scholars, therefore, are interested in government authority to prevent injury and disease and to promote the public’s health, as well as in the constraints on state action to protect individual freedom (see chapters 6 and 7). Government has ample authority to act for the common good but also must exercise that power within the constraints of the Constitution.

Law can be an effective tool to achieve the goal of improved health for the population. Law, regulation, and litigation, like other public health prevention strategies, intervene at a variety of levels, each designed to secure safer and healthier populations. First, government interventions are aimed at individual behavior through education (e.g., health communication campaigns), incentives (e.g., taxing and spending powers), or deterrence (e.g., civil and criminal penalties for risky behaviors). Second, the law regulates the agents of behavior change by requiring safer product design (e.g., safety standards and indirect regulation through the tort system). Finally, the law alters the informational (e.g., advertising restraints), physical (e.g., city planning and housing codes), or business (e.g., inspections and licenses) environments.

Government engages in the work of public health through three separate branches— legislative, executive, and judicial. The Constitution provides a system of checks and balances where no single branch of government can act without some degree of oversight and control by another. Separation of powers is essential to public health, for each branch of government possesses a unique constitutional authority: (1) legislatures create health policy and allocate the resources necessary to effectuate it; (2) executive agencies implement health policy, promulgate health regulations, and enforce regulatory standards; and (3) courts interpret law and resolve legal disputes. As a society, we forego the possibility of bold public health governance by any given branch in exchange for constitutional checks and balances that prevent government overreaching and assure political accountability.

Public health law is concerned with the tradeoffs entailed in the exercise of government power. Under what circumstances should government be permitted to act to achieve a public good when the consequence of that act is to invade a sphere of individual liberty? This is the kind of question that intrigues scholars interested in law and the public’s health. Rather than using ethical discourse to resolve these conflicts, the law uses the language of duties, powers, and rights.

It is clear from the foregoing description that public health law is a vast field incorporating thinking in a variety of legal subspecialties—constitutional, civil, administrative, and tort law. The Constitution affords the federal government certain powers and limits the authority of all governments to protect a sphere of freedom. Civil and administrative law is concerned with the body of statutes and regulations that set health and safety standards, together with agency powers to interpret and enforce those standards. Tort law provides a method of indirect regulation through the courts. By levying damages for certain kinds of harm, tort law can provide powerful disincentives to risk behaviors (e.g., litigation against cigarette and firearm manufacturers). As the chapters in this Reader unfold, these legal dimensions are explored (see Part II).

 

III. Public Health Ethics

 

The field of bioethics has richly informed the practice of medicine and decisions about the allocation of health care resources. Bioethicists, at least until recently, have not devoted the same sustained attention to problems in public health (Steinbock and Beauchamp 1999; Bradely and Burls 2000; Coughlin and Beauchamp 1996). A critical unanswered question is whether public health ethics have features which are distinct from conventional bioethics. Are ethical principles, or the methods of ethical analysis, materially different when applied to populations than when applied to individual patients? In thinking about this question it will be helpful to consider public health ethics from at least two perspectives: the ethics of public health professionals (professional ethics) and ethics in public health theory and practice (applied ethics). See Table 1.2.

The ethics of public health are concerned with the ethical dimensions of professionalism and the moral trust that society bestows on public health professionals to act for the common welfare (Callahan 2000). This form of ethical discourse stresses the distinct history and traditions of the profession, seeking to create a culture of professionalism among public health students and practitioners. It instills in professionals a sense of public duty and trust. Professional ethics are role oriented, helping practitioners to act in virtuous ways as they undertake their functions.

Many professional groups such as physicians and attorneys hold themselves accountable through a set of ethical guidelines, but public health professionals have no code of ethics. Perhaps the explanation is that no single public health profession exists, but rather a variety of different disciplines. Indeed, some public health disciplines have their own ethical codes—e.g., epidemiologists and public health educators. Nevertheless, a code of ethics, or at least a well-articulated values statement, could increase the status of the field and help clarify the distinctive ethical dilemmas faced by public health professionals. Public health professionals work in a field of considerable moral ambiguity where guidance could be instructive.

A public health code of ethics would have to confront the salient issue of fiduciary responsibility. To whom do public health professionals owe a duty of loyalty and how can these professionals know what actions are morally acceptable? Physicians, attorneys, and accountants have a fiduciary duty to their clients that informs their moral world. For example, client-centered professions usually adhere to the principle that the professional serves the client, advises the client fully and honestly, takes instructions from the client, and avoids acting against the client’s best interests.

In the context of public health, the community might be regarded as the “client.” The problem is that it is unclear what constitutes a “community”— the notion is often vague and fragmented. In any given situation, different groups may claim to represent community interests. If the community’s wants and needs are not easily ascertained, should public health professionals make their own judgments about communal interests? Public health professionals may, at times, coerce some members of the community, not necessarily in the community’s best interests, but in the interests of others. When thinking about public health’s complex relationship to populations, is the concept of fiduciary duty helpful as an ethical value?

Do public health professionals have a duty to tell the full truth and, if so, under what standard should they be judged? Public health professionals may earnestly believe that their mission requires vigorous interventions to prevent risk behaviors (e.g., smoking) or encourage health-promoting behaviors (e.g., screening and treatment). To achieve these beneficent objectives, public health professionals may exaggerate the risks or benefits or make claims that are insufficiently grounded in science (Wikler and Beauchamp 1995). Suppose public health professionals know that the risk of sexual transmission of HIV in middle class, low prevalence areas is relatively low. Are they obliged to disclose this fact when advising men to wear condoms? How would an ethical code address the nuanced question of “truth telling” by public health professionals?

A second form of public health ethics might be called ethics in public health theory and practice. Ethics in public health is concerned not so much with the character of professionals as with the ethical dimensions of the public health enterprise itself. Here, scholars study the philosophical knowledge and analytic reasoning necessary for careful thinking and decision making in creating and implementing public health policy. This kind of “applied” ethics is situation or case oriented, seeking to understand morally appropriate decisions in concrete cases. Scholars can helpfully apply general ethical theory and detached analytical reasoning to the societal debates common in public health.

The application of general ethical principles to public health decisions can be difficult and complicated. Since the mission of public health is to achieve the greatest health benefits for the greatest number of people, it draws from the traditions of utilitarianism or consequentialism. The “public health model,” argue Buchanan (2000) and his colleagues, uncritically assumes that the appropriate mode of evaluating options is some form of cost-benefit (or cost-effectiveness) calculation— the aggregation of goods and bads (costs and benefits) across individuals. Public health, according to this view, appears to permit, or even require, that the most fundamental interests of individuals be sacrificed in order to produce the best overall outcome.

This characterization misperceives, or at least oversimplifies, the public health approach. The field of public health is interested in securing the greatest benefits for the most people. But public health does not simply aggregate benefits and burdens, choosing the policy that produces the most good and the least harm. Rather, the overwhelming majority of public health interventions are intended to benefit the whole population, without knowingly harming individuals or groups. When public health authorities work in the areas of tobacco control, the environment, or occupational safety, for example, their belief is that everyone will benefit from smoking cessation, clean air, and safe workplaces. Certainly, public health focuses almost exclusively on one vision of the “common good” (health, not wealth or prosperity), but this is not the same thing as sacrificing fundamental interests to produce the best overall outcome.

The public health approach, of course, does follow a version of the harm principle. Thus, public health authorities regulate individuals or businesses that endanger the community. The objective is to prevent unreasonable risks that jeopardize the public’s health and safety— e.g, polluting a stream, practicing medicine without a license, or exposing others to an infectious disease. More controversially, public health authorities often recommend paternalistic interventions such as mandatory seat belt or motorcycle helmet laws. Public health authorities reason that the sacrifice asked of individuals is relatively minimal and the communal benefits substantial. Few public health experts advocate denial of fundamental interests in the name of paternalism. In the public health model, individual interests in autonomy, privacy, liberty, and property are taken seriously, but they do not invariably trump community health benefits.

The public health approach, therefore, differs from modern liberalism primarily in its preferences for balancing— public health favors community benefits, while liberalism favors liberty interests. Characterizing public health as a utilitarian sacrifice of fundamental personal interests is as unfair as characterizing liberalism as a sacrifice of vital communal interests. Both traditions would deny this kind of oversimplification.

Scholars in bioethics have demonstrated convincingly the power and importance of individual freedom. However, they have given insufficient attention to equally strong values of partnership, citizenship, and community (Beauchamp 1998). As members of a society in which we all share a common bond, we also have an obligation to protect and defend the community against threats to health, safety, and security. Members of society owe a duty—one to another—to promote the common good. A new public health ethic should advance the idea that individuals benefit from being part of a well-regulated society that reduces risks that all members share.

There remains much work to do in public health ethics. What is the moral standing that should be attached to the collective good? Does the health of the community have a moral standing that is independent of the health of individuals within that population? Under what circumstances should individual interests yield to achieve an aggregate benefit for the population?

At the same time, ethics in public health raise the important issue of social justice. How can society equitably allocate benefits or services, on the one hand, and burdens or costs, on the other? Does an otherwise effective policy become unfair if it disproportionately disadvantages a racial, ethnic, or religious group? For example, public health professionals often advocate primary enforcement of seatbelt laws so police can stop a driver simply for failure to comply with the law. But what if primary seatbelt laws are enforced disproportionately against African Americans? Similarly, agencies advocate an increase in the cigarette tax, knowing that the tax is highly regressive. Is it fair to disproportionately burden the poor who use tobacco products to achieve generally lower levels of smoking in the population?

Public health professionals routinely face these and many other kinds of dilemmas that could be informed by ethics scholarship. Think about the dilemmas that occur in the everyday practice of public health. When do educational messages cross the line to become persuasion or propaganda? When does surveillance or research unacceptably interfere with privacy? Under what circumstances— consistent with free expression— can agencies restrict commercial advertising? In regulating professionals and businesses (e.g., licenses, inspections, and nuisance abatements), how much deference should agencies give to property interests?

In addition to “professional” and “applied” ethics, it is possible to think of an “advocacy” ethic informed by the single overriding value of a healthy community (Jennings 2000). Under this rationale, public health authorities think they know what is ethically appropriate and their function is to advocate for that social goal. This populist ethic serves the interests of populations, particularly the powerless and oppressed, and its methods are principally pragmatic and political. Public health professionals strive to convince the public and its representative political bodies that healthy populations and reduced inequalities are the preferred social responses.

Public health ethics, therefore, can illuminate the field of public health in several ways. Ethics can offer guidance on (i) the meaning of public health professionalism and the ethical practice of the profession; (ii) the moral weight and value of the community’s health and wellbeing; (iii) the recurring themes of the field and the dilemmas faced in everyday public health practice; and (iv) the role of advocacy to achieve the goal of safer and healthier populations.

 

IV. Human Rights

The language of human rights is used in different, but overlapping, ways. Some use human rights language to mean a set of entitlements under international law, others use human rights to mean a set of ethical standards that stress the paramount importance of individuals, and still others use human rights for its aspirational, or rhetorical, qualities (see Table 1.3). A scholar is bound to be concerned when the terminology of human rights is invoked without clarifying the sense in which it is intended.

Legal scholars and practitioners use human rights to refer to a body of international law that originated in response to the egregious affronts to peace and human dignity committed during World War II. The main source of human rights law within the United Nations system is the International Bill of Human Rights comprising the United Nations Charter, the Universal Declaration of Human Rights (UDHR), and two International Covenants of Human Rights. Human rights are also protected under regional systems, including those in American, European, African, and Arab countries.

In its preamble, the United Nations Charter articulates the international community's determination "to reaffirm faith in fundamental human rights, [and] in the dignity and worth of the human person." The Charter, as a binding treaty, pledges member states to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (arts. 55–56).

The UDHR, adopted in 1948, built upon the promise of the Charter by identifying specific rights and freedoms that deserve promotion and protection. The UDHR was the organized international community's first attempt to establish "a common standard of achievement for all peoples and all nations" to promote human rights (Preamble). The UDHR has largely fulfilled the promise of its preamble, becoming the "common standard" for evaluating respect for human rights. Although it was not promulgated to legally bind member states, its key provisions have so often been applied and accepted that they are now widely considered to have attained the status of customary international law.

The adoption of the UDHR set the stage for a binding, treaty-based scheme to promote and protect human rights. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966 and entered into force in 1976. The United States has ratified the ICCPR but not the ICESCR. The rights contained in the ICCPR are principally negative or defensive in character, affording individuals a sphere of protection from government restraint. These rights, which are to be respected without discrimination, include the following: the right to life, liberty, and security of person; the prohibition of slavery, torture, and cruel, inhuman, or degrading treatment; the right to an effective judicial remedy; the prohibition of arbitrary arrest, detention, and exile; freedom from arbitrary interference with privacy, family, or home; freedom of movement; freedom of conscience, religion, expression, and association; and the right to participate in government.

The UDHR characterizes economic, social, and cultural rights as "indispensable for [a person's] dignity and the development of his personality" (art. 22). The ICESCR forms the foundation for "positive rights," that is, those requiring affirmative duties of the state to provide services. Such positive rights include the right to social security, the right to education, the right to work, the right to receive equal pay for equal work and to remuneration ensuring "an existence worthy of human dignity," and the right to share in the cultural life of the community and "to share in scientific advancement and its benefits" (arts. 22–27). Article 12 of the ICESCR requires governments to recognize "the right of everyone to the highest attainable standard of physical and mental health." Article 25 of the UDHR also expressly recognizes a right to health:

Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

The two Covenants diverge in their treatment of permissible limitations. The ICCPR recognizes that certain rights are so fundamental as to be absolute and proscribes any derogation of them. Nonderogable rights include the right to life (art. 6); freedom from torture and from cruel, inhuman, or degrading treatment or punishment (art. 7); the right to recognition as a person before the law (art. 16); and freedom of thought, conscience, and religion (art. 18). The ICCPR states that other rights may be justifiably limited under certain conditions. Freedom of movement, for example, may be justifiably limited where restrictions are "provided for by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others. . . " (art. 12.3). The ICESCR, on the other hand, permits “such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society." (art. 4).

Human rights law follows a set of internationally agreed rules specified in the text of treaties and other instruments, is informed by precedent, and is interpreted by tribunals and commissions. International human rights law seldom provides easy answers, but struggles to define and enforce human rights in the context of the legitimate powers of governments and the needs of communities.

Ethicists use the language of human rights for related, but different, purposes. The fields of ethics and human rights share an abiding belief in the paramount importance of individual rights and interests, but beyond that their perspectives diverge. While human rights scholars stress the importance of treaty obligations, ethicists seldom refer to international law doctrine. While human rights scholars rely on text and precedent, ethicists employ philosophical reasoning and argumentation. When ethicists adopt the language of international human rights, there is bound to be a certain amount of confusion. For example, if ethicists claim that health care is a “human right,” do they mean that a definable and enforceable right under international law exists or simply that philosophical principles such as justice support this claim?

Finally, public health students, as well as the lay public, often use the language of human rights for its aspirational, or rhetorical, qualities. Major public health schools, such as the Johns Hopkins University and Harvard University, give their students a copy of the UDHR at commencement or offer special certificates in human rights. When “rights” language is invoked, it is intended to convey the fundamental importance of the claim. It expresses the idea that government should adhere to certain standards, or provide certain services, because it is right and just to do so. Human rights as a symbol commands reverence and respect. Used in this aspirational sense, human rights need not be supported by text, precedent, or reasoning; they are self-evident and government’s responsibility simply is to conform.

Human rights, then, have features in common with ethics, but they are different fields. Human rights, like ethics, are often concerned with individual rights and interests, and, like advocacy ethics, human rights convey a sense of moral certainty. However, international human rights are also quite distinct from ethics. The field of human rights is based on a body of rules and precedents which are intended to express binding duties. It is complex and evolving, usually rejecting easy resolutions to the conflict between individual interests and collective goods.

The field of human rights has much work to do if it is to contribute usefully to health policy analysis. For example, human rights scholars and advocates have not clarified the meaning of the right to health (Gostin and Lazzarini 1997; Jamar 1994). The conceptualization of health as a human right, and not simply a moral claim, suggests that states possess binding obligations to respect, defend, and promote that entitlement (Leary 1994). Considerable disagreement, however, exists as to whether “health” is a meaningful, identifiable, operational, and enforceable right, or whether it is merely aspirational or rhetorical. A right to health that is too broadly defined lacks clear content and is less likely to have a meaningful effect. If health is, in WHO’s words, truly “a state of complete physical, mental and social well-being,” then it can never be achieved. Even if this definition were construed as a reasonable, as opposed to an absolute, standard, it remains difficult to implement, and is unlikely to be justiciable. Vast scholarship and litigation in international fora were required to define and enforce civil and political rights. However, social and economic rights, notably the right to health, deserve the same rigorous and sustained attention (Gostin 2000c). This is beginning to happen in international fora (Toebes 1999b). For example, the United Nations Committee on Economic, Social, and Cultural Rights recently offered detailed guidance on the meaning of the right to health (see chapter 4).

The Reader’s Objectives

The Reader probes the interrelated fields of public health, law, ethics, and human rights. The goal is to raise the most important and enduring intellectual issues and practical problems. In so doing, it should provoke discussion and debate among students, scholars, and practitioners. More important, the Reader provides a framework for rigorous analysis of the philosophical, political, economic, and jurisprudential dimensions of government intervention to assure the health of the populace. Nothing is so important to the security and vibrancy of a Nation as the well-being of its people.

 

 

 

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