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Thoughts on the Law and the Public's Health

Published online by Cambridge University Press:  01 January 2021

Extract

One understanding of health conceives of it as a state of freedom from pathology, achieved by an individual, through the mediation of a doctor. On this view, improvements in health flow from the application of science to specific ills of the body, and access to medical care is the chief determinant of health. This “medicalized” view of health underlies the current debate over medical care payment reform. This is the dominant way of talking about health.

An alternative is the view of health commonly associated with the practice of public health. On this view, health is an attribute of communities in social and physical environments. Health takes its shape in large numbers—in morbidity and mortality statistics—and, ideally, includes not just a high level of well-being for some, but also its even distribution throughout a society. Improvements in health are seen to arise from healthful changes in the environment.

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Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1994

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References

McKeown, Thomas, The Role of Medicine: Dream, Mirage, or Nemesis (Princeton: Princeton University Press, 1980); and MacKinlay, J., MacKinlay, S., “The Questionable Contribution of Medicine to the Decline of Mortality in the United States in the Twentieth Century,” Milbank Mem. Fund Q./Health & Society, 55 (1977): 3644.Google Scholar
Preston, Samuel H., Haines, Michael, The Fatal Years: Child Mortality in Late Nineteenth-Century America (Princeton: Princeton University Press, 1991), pp. 208–10.CrossRefGoogle Scholar
LaVeist, Thomas A., “Segregation, Poverty and Empowerment: Health Consequences for African Americans,” Milbank Q., 71, no. 1 (1993): 4164; Wilkinson, R.G., “National Mortality Rates: The Impact of Inequality,” Am. J. Pub. Health, 82 (1992): 1082-84; and Feinstein, Jonathan S., “The Relationship Between Economic Status and Health: A Review of the Literature,” Milbank Q., 71, no. 2 (1993): 279-322.Google Scholar
Rose, Geoffrey, “Sick Individuals and Sick Populations,” International Journal of Epidemiology, 14, no. 1 (1985): 3238; and cf. Preston, Samuel, “The Changing Relation between Mortality and Level of Economic Development,” Population Studies, 91 (1975): 231-48 (suggesting a changing role for medical care as limits of environmental engineering are reached).CrossRefGoogle Scholar
See Starr, Paul, The Social Transformation of American Medicine (New York: Basic Books, 1982). Compare Tushen, Meredeth, The Politics of Public Health (New Brunswick: Rutgers University Press, 1989), pp. 19-32 (contrasting theories of disease based on specific causation with theory of “the social production of health and illness”).Google Scholar
Eisenberg, David M. et al., “Unconventional Medicine in the United States: Prevalence, Costs, and Patterns of Use,” N. Engl. J. Med., 328 (1993): 246–52.CrossRefGoogle Scholar
Centers for Disease Control and Prevention, “Estimated National Spending on Prevention: United States, 1988,” MMWR, 41, no. 29 (1992): 529–32; and Elders, Joycelin, “The Future of U.S. Public Health,” JAMA, 269 (1993): 2293.Google Scholar
McKeown, Thomas, The Origins of Human Disease (New York: Blackwell Publications, 1988), p. 189.Google Scholar
See, for example, Illich, Ivan, Medical Nemesis: The Expropriation of Health (New York: Pantheon Books, 1976); Dubos, Rene, The Mirage of Health: Utopias, Progress, and Biological Change (New Brunswick: Rutgers University Press, 1987) (a somewhat friendlier critique); and see also, for example, Callahan, Daniel, The Troubled Dream of Life: Living with Mortality (New York: Simon & Schuster, 1993), pp. 40-48, 120-24 (criticizing overreliance on medical technology in current conceptualization of death and dying).Google Scholar
In talking about a “choice between” these two views, I am speaking metaphorically. I do not mean to suggest that either view provides a complete and sufficient account of health or how people experience it. It is not even necessary to my argument to claim that people may actually hold either of these views in the belief that it provides a complete explanation of health. These archetypal views suggest tendencies in talking about health that prefigure as well as they express understandings of the concept. One of the interesting things about the medicalized discourse of health is that many people who talk this way are quite aware that it is a radically incomplete account of health. The problem is not that looking at health through a medical lens is somehow inherently bad (as, for example, Illich seems to argue), but rather that medicalized thinking has an unwonted dominance in our thinking. The definitive account of medicine's triumph as an idea is Starr, supra note 5.Google Scholar
See, for example, Blackstone, William T., “On Health Care as a Legal Right: An Exploration of Legal and Moral Grounds,” Ga. L. Rev., 10 (1976): 391418.Google Scholar
Ethicists have struggled with this problem. For example, Brennan, Troy, in his Just Doctoring (Berkeley: University of California Press, 1991), offers a vision of the doctor as a mediator between the patient's and the society's interests. As full as the book is of insight and practical wisdom, however, it cannot so easily resolve the conflict. Emanuel's, Ezekiel J. rejection of liberal neutrality, in The Ends of Human Life: Medical Ethics in a Liberal Polity (Cambridge: Harvard University Press, 1991), although attacking what is perhaps a straw version of liberalism, powerfully exposes this problem.Google Scholar
As Starr has shown, much of the edifice of medical regulation has been constructed to protect, or at least not threaten, the autonomy of doctors (see supra note 5). See Beauchamp, Dan E., The Health of the Republic: Epidemics, Medicine, and Moralism as Challenges to Democracy (Philadelphia: Temple University Press, 1988), ch. 2.Google Scholar
An interesting recent attempt to conceptualize a right to medical care is Chapman, Audrey R., Exploring a Human Rights Approach to Health Care Reform (Washington, D.C.: AAAS, 1993).Google Scholar
See Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991).Google Scholar
See Parmet, Wendy E., “Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty,” J. Health Politics, Policy and L., 14 (1989): 752–56.Google Scholar
See, generally, Wing, Kenneth R., “The Right to Health Care in the United States,” Annals of Health Law, 2 (1993): 161–93 (surveying case law and distinguishing between the legal and political “right” to health care).Google Scholar
Parmet, Wendy E., “Health Care and the Constitution: Public Health and the Role of the State in the Framing Era,” Hastings Con. L. Q., 20 (1993): 267335. See Beauchamp, , supra note 13, ch. 4.Google Scholar
See Rosenblatt, Rand E., “The Courts, Health Care Reform, and the Reconstruction of American Social Legislation,” J. of Health Politics, Policy and L., 18 (1993): 439–76.Google Scholar
Sade, Robert M., “Medical Care as a Right: A Refutation,” N. Engl. J. Med., 285 (1971): 1288–92.CrossRefGoogle Scholar
See Furrow, Barry R. et al., Health Law: Cases, Materials, and Problems (St. Paul: West Publishing, 2d ed., 1991).Google Scholar
Daniels, Norman, Just Healthcare: Studies in Philosophy and Health Policy (New York: Cambridge University Press, 1985).Google Scholar
See Beauchamp, , supra note 13.Google Scholar
McGinnis, J. Michael, Foege, William, “Actual Causes of Death in the United States,” JAMA, 270 (1993): 2207–12; and see Tushen, , supra note 5.Google Scholar
See Rose, , supra note 4.Google Scholar
Jeffery, Robert W., “Risk Behaviors and Health: Contrasting Individual and Population Perspectives,” American Psychologist, 44, no. 9 (1989): 11941202.CrossRefGoogle Scholar
U.S. Public Health Service, “PHS Actions for Building Capacity in Assessment,” U.S. Department of Health and Human Services/Public Health Reports, 106 (1991): 1928.Google Scholar
For a discussion of how we model a disease influences the health measures we employ, see Fee, Elizabeth, Krieger, Nancy, “Thinking and Rethinking AIDS: Implications for Health Policy,” Intl. J. Health Services, 23 (1993): 323–46.CrossRefGoogle Scholar
See Miller, C. Arden et al., “Statutory Authorization for the Work of Local Health Departments,” AJPH, 67 (1977): 945. Even with respect to these functions, most statutes are outdated, not at all reflecting legal developments in due process and privacy. See Gostin, Larry, “The Future of Public Health Law,” Am. J. L. & Med., XII, nos. 3-4 (1986): 461-90.Google Scholar
Parker, Le Roy, Worthington, R.H., The Law of Public Health and Safety and the Powers and Duties of Boards of Health (Albany: Bender, 1892), pp. 129–30.Google Scholar
See, for example, Turnock, Bernard J., Kelly, Chester J., “Mandatory Premarital Testing for Human Immunodeficiency Virus: The Illinois Experience,” JAMA, 361 (1989): 3415–18; Bayer, Ronald, Fairchild-Carrino, Amy, “AIDS and the Limits of Control: Public Health Orders, Quarantine, and Recalcitrant Behavior,” Am. J. Pub. Health, 83 (1993): 1471–76; cf. Gellert, George A. et al., “Managing the Non-Compliant HIV-infected Individual: Experiences from a Local Health Department,” AIDS & Pub. Policy J., 8, no. 1 (1993): 20-26 (isolation used primarily for public relations reasons, and applied only to individuals suffering serious mental health problems); and Hamburg, Margaret A., “Rebuilding the Public Health Infrastructure: The Challenge of Tuberculosis Control in New York City,” JLME, 21, nos. 3-4 (1993): 352-59 (detention of tuberculosis patients is a very limited, last resort for individuals with a history of noncompliance with treatment).CrossRefGoogle Scholar
The implications of the decline of infectious diseases was much discussed in the 1940s and 1950s (see Fee, , Krieger, , supra note 28, pp. 335–36), and have been a source of rich thinking about public policy ever since (see, e.g., Lalonde, Marc, A New Perspective on the Health of Canadians: A Working Document (Ottawa: Information Canada, 1974); Department of Health and Human Services/Public Health Service, Healthy People 2000: National Health Promotion and Disease Prevention Objectives (Washington, D.C.: DHHS Publication No. (PHS) 91-50212, 1991)). For a discussion of this “second revolution in public health,” see generally Leichter, Howard M., Free to be Foolish: Politics and Health Promotion in the United States and Great Britain (Princeton: Princeton University Press, 1991).Google Scholar
The issue of obedience to authority and the impact of various kinds of interventions have generated a rich literature within and without public health. See, for example, Jeffery, , supra note 26; Hinds, M. Ward, “Impact of a Local Ordinance Banning Tobacco Sales to Minors,” U.S. Department of Health and Human Services/Public Health Reports, 107 (1992): 355–58; Finn, Peter, “Decriminalization of Public Drunkenness: Response of the Health Care System,” J. of Studies on Alcohol, 46, no. 1 (1985): 7-23; and Tyler, Tom R., Why People Obey the Law (New Haven: Yale University Press, 1990).Google Scholar
See Hamburg, , supra note 31.Google Scholar
See McKeown, , supra note 8, p. 182.Google Scholar
The division of tasks between health agencies and others has often been a matter of political dispute. See, for example, Rosner, David, Markowitz, Gerald, “Research or Advocacy: Federal Occupational Safety and Health Policies During the New Deal,” J. of Social History, 8, no. 3 (1985): 365–81.Google Scholar
Burris, Scott, “Prisons, Law and Public Health: The Case for a Coordinated Response to Epidemic Disease Behind Bars,” U. of Miami L. Rev., 47, no. 2 (1992): 291335; Riley, William K., “Risky Business: Life, Death, Pollution, and the Global Environment,” Institute for Intl. Studies (1994) (1993–1994 Arthur and Frank Payne Lectureship, Stanford University); and Hamburg, , supra note 31.Google Scholar
Blake, John B., Public Health in the Town of Boston, 1630–1822 (Cambridge: Harvard University Press, 1959); and Tandy, Elizabeth C., “The Regulation of Nuisances in the American Colonies,” Am. J. Pub. Heatlh, XIII (1923): 810-13.Google Scholar
Institute of Medicine, The Future of Public Health (Washington, D.C.: National Academy Press, 1988).Google Scholar
See Jeffery, , supra note 26, p. 1197.Google Scholar
See, for example, Blum, Alan, “Strategies to Reduce Cigarette Sales: Excise Taxes and Beyond,” JAMA, 255 (1986): 1049–50.CrossRefGoogle Scholar
See, for example, Siegel, Paul Z. et al., “Behavioral Risk Factor Surveillance, 1986–1990,” MMWR, 40, no. SS-4 (1991): 122.Google Scholar
Chaloupka, Frank J. et al., “Alcohol-Control Policies and Motor-Vehicle Fatalities,” J. of Legal Studies, 22 (1993): 161–86; and CDC, “Reduction in Alcohol-Related Traffic Fatalities—United States, 1990–1992,” MMWR, 42, no. 47 (1993): 905-09.CrossRefGoogle Scholar
See, for example, CDC, “Public Health Focus: Physical Activity and the Prevention of Coronary Heart Disease,” MMWR, 42, no. 35 (1993): 669–72; Centerwall, Brandon S., “Television and Violence; The Scale of the Problem and Where to Go From Here,” JAMA, 267 (1992): 3059-63; Safriet, Barbara J., “Health Care Dollars and Regulatory Sense; The Role of Advanced Practice Nursing,” Yale J. Reg., 9, no. 2 (1992): 417-88; Thompson, Robert S. et al., “Cost-Effectiveness Analysis of Bicycle Helmet Subsidies in a Defined Population,” Pediatrics, 91 (1993): 902-07; CDC, “Mandatory Bicycle Helmet Use—Victoria, Australia,” MMWR, 42, no. 18 (1993): 359–63; and Jeffery, , supra note 26.Google Scholar
See, for example, Burris, Scott, “Education to Reduce 33. the Spread of HIV,” in Burris, S. et al., eds., Education in AIDS Law Today: A New Guide for the Public (New Haven: Yale University Press, 1993), pp. 92103; and Bush, Alan J., Boiler, Gregory W., “Rethinking the Role of Television Advertising During Health Crises: A Rhetorical Analysis of the Federal AIDS Campaigns,” J. of Advertising, 20 (1991): 28-35.Google Scholar
Cover, Robert M., “Forward: Nomos and Narrative,” Harvard L. Rev., 97, no. 1 (1983): 468.Google Scholar
See Leichter, , supra note 32.Google Scholar
Starr, , supra note 5, pp. 180–81.Google Scholar
Tomlins, Christopher L., “Law, Police, and the Pursuit of Happiness in the New American Republic,” Stud. Am. Pol. Dev., 4 (1990): 334.CrossRefGoogle Scholar
See, generally, id.; Novak, William J., “Public Economy and the Well-Ordered Market: Law and Economic Regulation in 19th Century America,” L. & Social Inquiry, 18 (1993): 132 (describing the strong regulatory tradition in antebellum American law); Beauchamp, , supra note 13; and Scheiber, Harry N., “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,” in Fleming, Donald, Bailyn, Bernard, eds., Perspectives in American History (Cambridge: Harvard University Press, Vol. V, 1971), pp. 329-44.Google Scholar
Beauchamp, , supra note 13, p. 106.Google Scholar
Tomlins, , supra note 50, pp. 2122; and Beauchamp, supra note 13, p. 106.Google Scholar
See, for example, Hartog, Hendrik, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1879 (Chapel Hill: University of North Carolina Press, 1983).Google Scholar
See Parmet, , supra note 16, pp. 741–42.Google Scholar
Jacobson v. Massachusetts, 197 U.S. 22 (Mass. 1904).Google Scholar
Beauchamp, , supra note 13, ch. 4.Google Scholar