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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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