- FROM BIOETHICS BRIEFINGS
Public Health Ethics and Law
Framing the Issue
The role of public health is to assure the conditions needed to promote and protect people’s health. These conditions include various economic, social, and environmental factors that are necessary for good health. The Institute of Medicine (IOM) defines public health as “what we, as a society, do collectively to assure the conditions for people to be healthy.” With its use of the phrase “we, as a society,” the IOM emphasizes cooperative and mutually shared obligation. It also reinforces the notion that collective entities (e.g., governments and communities) are responsible for healthy populations. This idea is critical because the political community does not have a clear sense of the concept of public health apart from the discourse around health care reform. Efforts to assure access to high-quality health care are certainly an important part of improving the public’s health, but they play a relatively minor role compared to broader efforts to assure equitable access to healthy living conditions.
Today, public health is more important than ever. Society faces threats from emerging and resurgent infectious diseases such as Zika virus, declining vaccination rates, antimicrobial resistance, and the threat of bioterrorism (for example, from anthrax and smallpox). At the same time, public health law and ethics are evolving to address the mounting burdens of noncommunicable disease such as cancer, cardiovascular disease, diabetes, and chronic respiratory disease, injuries or deaths (for example, related to drug overdose, guns, and motor vehicles), and the social determinants of health (for example, the impact of household income, community resources, and structural racism on population health). Efforts to address these burdens more broadly prompt political opposition from people who would prefer a narrower scope for public health law. Others argue that it would be unethical, in the face of preventable morbidity and mortality, to confine the focus of public health to narrowly-defined collective action problems and market failures.
Ethical Values in Tension
Public health regulation often involves potential trade-offs between public goods and private interests. When public health officials act, they face troubling conflicts between the collective benefits of population health on the one hand and personal and economic interests on the other. Public health regulation is designed to monitor health threats and intervene to reduce risk or ameliorate harm within the population. At the same time, public health powers may encroach on fundamental civil liberties such as privacy, bodily integrity, and freedom of movement, association, religion, or expression. Sanitary regulations may also intrude on basic economic liberties such as freedom of contract, pursuit of professional status, use of property, and competitive markets.
Although, undoubtedly, there are tensions between individual and collective interests, there are also synergies. The protection of civil liberties may improve population health. For example, privacy and antidiscrimination protections for individuals with stigmatized conditions may encourage them to seek testing, counseling, and treatment. When public health measures are designed to protect civil rights and liberties they are more likely to benefit from the earned trust and cooperation of the community and, in particular, persons at risk.
The fields of bioethics and medical ethics have richly informed the development and use of biotechnologies, the practice of medicine, and the allocation of health care resources. If a single overarching principle could be extrapolated from these traditions, it is that individuals have a strong claim to make decisions for themselves, at least to the extent that those decisions are purely self-regarding without imposing consequences on others. Thus, if a person has the capacity to understand the nature and consequences of the decision at hand, she has an interest in making her own choice without outside interference. Autonomy is a guiding value that supports a constellation of individual rights to, for example, confidentiality, informed consent, and liberty.
Bioethics, because of the premium it places on individual rights, has had limited relevance to the ethical dilemmas of public health, which often involve balancing individual rights against the needs of the community as a whole. Under the public health tradition, individual interests may have to yield to those of the broader community when necessary for the public’s health, safety, and well-being. The public health tradition values prevention and views its successes or failures based on the benefits and burdens that accrue to populations rather than to individuals.
In recent years, however, several bioethics scholars have begun to give more attention to principles of social justice in response to problems such as universal access to health care and social disparities in health. At the same time, public health ethics has emerged as a distinct field in its own right, with attention to the professional ethics of public health practitioners and the applied ethics of public health policymaking. While virtually every aspect of public health research, practice, and policy raises issues that call for ethical analysis, there are three general areas on which the emerging field of public health ethics has been particularly focused: the role of values in risk assessment, public health paternalism, and social disparities in health.
How should policy-makers respond to the public’s lack of scientific understanding of risk? Should public perceptions be understood to reflect values worthy of balancing alongside the scientific risk assessments of experts? Or should they be treated as irrationalities to be corrected (through education programs) or circumvented (through reliance on expertise-driven administrative agencies insulated from democratic accountability)?
Public Health Paternalism
The risk of serious harm to other persons or property is the most commonly asserted and well-accepted justification for public health regulation. Even those who advocate for the minimal use of state powers endorse infectious disease control measures that limit liberty (e.g., mandatory vaccination, physical examination, treatment, isolation of the infected and quarantine of the exposed), at least in high-risk circumstances such as an outbreak of Ebola virus. The “harm principle” in bioethics holds that competent adults should have freedom of action unless they pose a risk to others. In competent individuals, harm to self or immoral conduct is insufficient to justify state action. Consequently, “risk to self” is a much more controversial justification for public health regulation.
Paternalism is the intentional interference with a person’s freedom of action exclusively—or primarily—to protect his or her own health, safety, welfare, or happiness. Longstanding regulation of behavior that poses a risk to one’s self includes mandatory motorcycle helmet and seat belt laws, gambling prohibitions, and criminalization of recreational drugs. More recently, restrictions on tobacco, fast food, and sugary drink manufacturers and retailers have riled critics who claim these actions invoke a public health “nanny state.”
Opponents of paternalism value freedom of choice, arguing that individuals should be allowed to decide for themselves, even if they make what experts might deem the “unhealthy” or “unsafe” choice. Supporters of paternalism point out that there are both internal and external constraints on people’s capacity to pursue their own interests. Personal behavior is not simply a matter of free will. So, state regulation is sometimes necessary to protect an individual’s health or safety. For example, everyone does not know that children are at risk of severe injury from front-seat air bags or that radon is prevalent and dangerous in homes. Even when information is available, consumers may misapprehend the risks. And advertising can persuade consumers to make unhealthy decisions about tobacco, alcoholic beverages, sugary drinks, or high-calorie food.
Perhaps it is more accurate to think of public health paternalism as directed towards overall societal welfare rather than the individual. Public health policy is aimed at the community and measures its success by improved population health and longevity. Even if conduct is primarily self-regarding, the aggregate effects of persons choosing not to wear seatbelts or helmets can be thousands of preventable injuries and deaths. Thus, while risk-to-self is often the least politically acceptable reason for regulation, it is nonetheless clear that paternalistic policies can be effective in preventing injuries and deaths in the population.
Health Disparities and Social Justice
Social justice is so central to the mission of public health that it is often described as the field’s core value. One the most basic and commonly understood principles of justice is that individuals and groups should receive fair, equitable, and appropriate treatment in light of what is due or owed to them. Justice, for example, can offer guidance on how to allocate scarce therapeutic resources in a public health crisis, such as pandemic influenza.
Social justice, however, demands more than merely a fair distribution of resources. While health hazards threaten the entire population, the poor and disabled are at heightened risk. For example, in response to devastating hurricanes on the Gulf Coast in 2005 and the East Coast in 2011 and 2012, city, state, and federal agencies failed to act expeditiously and with equal concern for all citizens, particularly the poor and disabled. Neglect of the needs of the vulnerable predictably harms the whole community by eroding public trust and undermining social cohesion. Social justice thus encompasses not only a core commitment to a fair distribution of resources, but it also calls for policies of action that are consistent with the preservation of human dignity and the showing of equal respect for the interests of all members of the community.
Law and Public Health Ethics
Public health practice and ethics are intimately intertwined with public health law, which shapes the authority of the state to protect the public’s health and limits that power in the form of individual rights and structural constraints. As Daniel Callahan and Bruce Jennings have noted, “[p]ublic health is one of the few professions that has, in many matters, legal power–in particular, the police power of the state–behind it. . . . It thus has an obligation both toward government, which controls it, and toward the public that it serves.” (See Resources.)
Many of the most important social and ethical debates about public health take place in legal forums–legislatures, courts, and administrative agencies–and in the law’s language of rights, duties, and justice. Law defines the jurisdiction of public health officials and specifies the manner in which they may exercise their authority. State public health statutes create public health agencies, designate their mission and core functions, appropriate their funds, grant their power, and limit their actions to protect certain liberties.
The law can be an effective tool for safeguarding the public’s health. Of the 10 greatest public health achievements of the twentieth century, all were realized, at least in part, through legal reform or litigation: vaccinations, safer workplaces, safer and healthier foods, motor vehicle safety, control of infectious diseases, the decline in deaths from coronary heart disease and stroke, family planning, tobacco control, healthier mothers and babies, and fluoridation of drinking water. Public health law experts are playing a vital role in addressing the leading public health challenges of the twenty-first century. Their efforts include creating a more rational, accessible health care system; eliminating health disparities among racial and ethnic groups; integrating physical activity and healthy eating into everyday life; protecting the natural environment; and, responding to emerging and reemerging infectious diseases. Public health law consists of the basic statutes that empower public health agencies and a number of legal tools, including:
- Taxation and spending. Taxes can provide incentives for healthy behaviors (such as deductions for health insurance) and disincentives for risk behaviors (for example, excise taxes on tobacco products and sugary drinks). Spending can directly support public health infrastructure and healthy living conditions, or it can be conditioned on compliance with health-promoting regulations (such as safety standards for the receipt of highway funds and nutrition standards for food served in public schools).
- The information environment. Government can educate the public, require labeling of food, drugs, tobacco, and other hazardous products, and regulate advertising (for example, restricting ads that target children).
- The built environment. Government can use zoning and planning authority to help individuals to make healthy choices (for example, reducing the concentration of fast food, firearm, liquor, or gambling outlets and investing in public transportation, parks, bicycle paths, and recreational facilities).
- The socioeconomic environment. Government can allocate resources and create policies to reduce the vast inequalities in health related to socioeconomic status, race, ethnicity, or geography by supporting access to housing, education, and income.
- Direct regulation. Government can directly regulate individuals (such as by imposing travel restrictions or mandating vaccination to control infectious disease), businesses (such as by requiring calorie counts on restaurant menus), and professionals (such as by imposing health and safety regulation on health care professionals and others via licensing authority).
- Indirect regulation through the tort system. Attorneys and private citizens can use civil litigation to redress many different kinds of public health harms relating to the environment (such as air or water pollution), toxic substances (such as pesticides or radiation), hazardous products (such as tobacco or firearms), and defective consumer products.
- Deregulation. Sometimes laws need to be reformed because they pose an obstacle to the public’s health –for example, prohibitions against distribution of sterile injection equipment to illicit drug users as part of HIV/AIDS prevention programs.
On the Horizon
The United States faces many formidable challenges in safeguarding the population from infectious and noncommunicable diseases and injuries. The mounting toll of Type 2 diabetes, dramatically rising rates of opioid overdose, outbreaks of measles and pertussis, and Zika virus transmission brings ethical values into tension. The duty to protect the public–a collective good–must be weighed against individual rights to liberty, privacy, bodily integrity, freedom of association, and the free exercise of religion. In view of these competing values, public health practitioners are grappling with several critical questions:
- What limits on privacy are justified by surveillance, and to what extent does the answer depend on whether officials are tracking noncommunicable conditions or injuries as opposed to communicable diseases?
- What limits on bodily integrity are justified by screening, physical examination, and treatment?
- What limits on liberty are justified by quarantine and social distancing measures designed to separate the healthy from those infected or exposed to communicable disease?
- What limits on individual rights are justified by mandatory vaccination against preventable illnesses?
When facing the public health challenges of coming decades, policy makers will be unable to avoid ethical dilemmas. Failure to move aggressively–even with incomplete scientific information–can have disastrous consequences, while actions that prove to have been unnecessary will be viewed as draconian and wasteful. Transparency is crucial. Policymakers must be willing not only to clearly explain the reasons for restrictive measures, but also to openly acknowledge when new evidence warrants a reconsideration of policies. Potential interventions must be evaluated according to carefully honed ethical criteria. In the future as in the past, public health decisions will profoundly reflect the manner in which societies both implicitly and explicitly balance values that are intimately related and inherently in tension.
Lawrence O. Gostin, JD, a Hastings Center fellow, is the Linda D. and Timothy J. O’Neill Professor of Global Health Law and director of the O’Neill Institute for National and Global Health Law at Georgetown University and professor of public health at Johns Hopkins University.
Lindsay F. Wiley, JD, is a professor of law at American University’s Washington College of Law.
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