Ratio Juris: Toward a Philosophically Sound & Bioethically Sensitive Definition of Public Health Law

(Public health nursing made available through child welfare services in the U.S, c. 1930s)

Please Note: I’m hoping to receive (hence inviting) comments on this (either here or through e-mail) before penning the next draft, which will include material on the relation between the State and the pursuit of the Good (as one critical assumption or premise) and a small section treating the role of a certain take on the Constitution and the proposal outlined here. The final draft will be posted at SSRN.

Public health law can be defined as the legal powers and duties of the state and/or other legal normative order(s) directed toward establishing, encouraging, and/or maintaining the necessary conditions for the health of individuals with respect to four types of functions and capacities: biological (e.g., well-functioning organs); physical (e.g., ambulatory); social (e.g., capacities to communicate); and mental (e.g., reasoning and emotional capabilities). Conversely, such law circumscribes the coercive power of the state and/or other legal normative order(s) regarding the infringement or curtailment of personal autonomy (regarding such things as, say, dignity, or the right to privacy), liberty, proprietary or other legally sanctioned and protected rights and interests in the course of its promotion of health as a fundamental common or public good (adapted and modified from Brock in Nussbaum and Sen 1993, and Gostin 2000, respectively).

For reasons of (scientific and administrative) practicality and (medical) effectiveness (‘efficiency’ for economists), public health law targets populations, not individuals as such, but in so doing it need not violate the cardinal moral propositions of ethical individualism (be they Kantian or virtue-ethical in formulation or inspiration), nor the logically distinct central principle of methodological individualism, namely, that “all social phenomena, their structure and their change—are in principle explicable in ways that only involve individuals—their properties, their beliefs and their actions”(Elster 1985). Thus populations are individuals engaged in specified aggregate patterns of behavior, conversely, individual human action is the basic building block of aggregate social phenomena like “populations,” as in such phrases as “population health” or “population and international health.” With regard to the central (or at least some of the central) moral propositions of ethical individualism, and whatever else they may assume or propose, they presumably commit us to the following propositions for purposes of explicating a moral ethos worthy public health law: (1) the major powers, capacities, or functionings of a human being require a minimal threshold level of material support (this assumes they are not self-suppliable by individuals); (2) each and every person is a locus of inviolability, a source of objective values (intrinsic and otherwise), and inherent dignity by virtue of his or her status as a human being; and, (3) the requisite list of functions and capabilities that are canonized as fundamentally important to human life must be “sought for each and every person, not, in the first instance, for groups or families or states or other corporate bodies” (Nussbaum 2000: 74; as for a proposed list of such functions and capabilities, see Nussbaum 2011: 33-34). I would think we could reach an “overlapping consensus” on these propositions as providing the minimally moral guidance for and ethos of public health law. As these are general and somewhat abstract moral desiderata, they will not alone suffice for the ethical and legal democratic oversight of public health policies and legislation. But I would hope that they do suffice as a model of the ethical framework and the derivation of further criteria and standards deemed absolutely central to assessing the political, technological and medical means and ends, the methods and purposes, of public health regulation. The “overlapping consensus” (Rawls) here refers to the belief that adherents of any number of religious and non-religious worldviews should be able to endorse these ethical propositions (that is, find the philosophical resources and commitments from within their traditions to accord them warrant or justification). In other words, one might come to subscribe to the ethical significance of these propositions following a chain of reasoning with roots in motley axiomatic worldview presuppositions or assumptions, from a variety of “thick” conceptions of the Good. Fidelity to these principles by public citizens and political actors does not require the setting aside or bracketing of traditions and worldviews or adopting a “neutral” stance with regard to the Good (wherein some sort of consequentialist ethics becomes the default theory for such assessments). Furthermore, any bioethical propositions (which are typically narrower in scope and ‘thicker’ in substance) relied upon in public health law in one way or another should therefore be consistent with this ethical framework and ethos.

Public health law is plausibly viewed as giving life to many of the necessary conditions for individual and social well-being. Alternatively, it is seen as an attempt to provide legal support and force within a polity for the application and institutionalization within the health care system of the principles of just health care (Daniels 1985). Principally, this entails removing obstacles to opportunity that are due to “adverse departures from normal species functioning” (see Brock 1993, and cf. Sen 1987, Nussbaum 2000; just what such ‘functioning’ consists of, has drawn the philosophical attention of Sen, Nussbaum, and Brock, although they do not agree on the details: Sen and Nussbaum being largely of like minds and differing from Brock). Any number of ethical theories might be called upon to motivate or evaluate the principles and practices of public health law, however much consequentialist ethical reasoning has dominated the field. Indeed, bioethics can (should?) incorporate a pluralist ethical approach to public health law questions.

Public health law is bound up with the moral principles, legal rules and standards, and public policies associated with constitutional, statutory, administrative, contract, and tort law (and occasionally, criminal law). For many purposes, “sexual regulation” and “family law” can be located within the ambit of public health law. Medical ethics has a role to play in public health law but, more broadly, it is bioethics in the most generous sense that can provide it with a justificatory ethical theory (Gillet: 2004). Bioethics is pivotal to the assessment of modern scientific and medical practices and their correlative diagnostic and prescriptive techniques and technologies (Fuller 2000, 1993; Kitcher 2001; Resnick 1998; Shrader-Frechette 1991, 1994, 2002), as well as questions regarding the just distribution of health, which includes or overlaps with issues central to environmental ethics (Daniels 1985, O’Neill 2002). As presently construed, many of the ethical issues in public health law fall within the philosophical, legal, and political rubrics of human welfare and well-being, social justice, and human rights. Bioethics is not beholden to any one ethical tradition or theory and thus can incorporate a pluralist ethical approach to public health questions and jurisprudence. Moreover, it affords us an existing domain of ethical specialization for entertaining the bulk of ethical questions germane to public health law. But minimal ethical desiderata recognizing the central or axiological value of ethical individualism as outlined above should provide the structural support or evaluative baseline for circumscribing the ethical insights gleaned from other ethical traditions and theories, thereby serving as the sine qua non of bioethics.

Onora O’Neill argues that bioethics has not paid enough attention to the social dimension of its ethical foci, that is, the institutional structures and professional arrangements peculiar to health care that are relevant to the just distribution of health, for example, nor has bioethics accorded sufficient consideration to environmental concerns and problems that fall within the purview of environmental ethics. Although bioethics covers not only ethical questions derived from the interplay of medicine, science, technology, economics, and politics found in bio-medical research (e.g. advances in genetic knowledge), as well as issues surrounding abortion, euthanasia, organ donations, reproduction, and informed consent, for example; it must also bring its evaluative powers to bear on such topics as genetically modified crops, food safety, pollution, malnutrition, famines and animal welfare, all topics with obvious and urgent relevance to human health (O’Neill 2002), and hence within the scope of public health law. In short, bioethics must broaden its ethical scope by being more socially and politically aware if not sophisticated. Dale Jamieson’s recent collection of essays, Morality’s Progress (2002)—self-described as “philosophically naturalist, morally consequentialist, and metaethically constructivist”—exemplifies one possible model of environmental and social sophistication that might be adroitly assimilated into this broader form of bioethics without violating the core values of ethical individualism. Jamieson’s (bio)ethical reflections cover and treat the use of animals in research, cognitive ethology, urbanism, global warming and public policy, values in nature, global environmental justice, and biotechnology, among other topics. Jamieson reiterates O’Neill’s critique of contemporary bioethics, which, he reminds us, is first and foremost applied ethics, nevertheless

“[m]ost of the work that has been done in applied ethics has focused on individual rather than societal responses to ethical problems. The main concern has usually been to say what individuals should do about various problems like world hunger and abortion. Questions about what social policies we should adopt or what individuals should do as members of a democratic society hardly ever get addressed. This is especially striking in the literature on professional ethics. Philosophers have written voluminously on various aspects of the physician/patient relationship while virtually ignoring questions about the role of medical institutions in the life of society. Although philosophers have written quite a lot about the difficulties faced by individual doctors and hospitals in the distribution of resources, they have said little about the larger problems concerning the proportion of our total resources that go to the medical sector or about the problems of justly distributing those resources across the entire population.” (Jamieson 2002: 40-41)

Reformed along the lines suggested above by O’Neill and Jamieson, bioethical discussions could better fill out the necessary normative dimensions of public health law while at the same time prove more directly pertinent to its legal and public policy dimensions. We should place the burden of proof on those who believe we lack good reasons for subsuming public health ethics, like environmental ethics, under the canopy of bioethics, capaciously conceived and within the framework and ethos of ethical individualism. This does not rule out some practical specialization among ethicists, which is perhaps inevitable given the institutional logic of academic training and the (related) increasing cognitive sophistication and fragmentation of the knowledge enterprise, not to mention the nature of institutional structures and the allocation of roles within those structures. But it does require (or asks) such ethicists and professional philosophers to keep sight of the (bio)ethical “big picture” as it were. Our overarching framework and ethos of ethical individualism is all the more urgent in a world that has grown immeasurably more complicated over the last half century, a world in which our actions and interventions reverberate near and far in innumerable and unexpected ways. On the presumption that to divide is to conquer, ethical discourse is weak enough in the public fora of materially affluent countries (Jamieson 2002: 308-20), it should not be further divvied up out of fealty to institutional and professional interests keen on disciplinary boundary maintenance if not fortification, particularly in an age when the imperatives of marketplace logic and corporatist imperatives often crush or trump any competing discourse not amenable to commodification or not commensurate with its instrumental logic and values. Such a robustly revised bioethics could help public health policymakers and law practitioners alike appreciate, for example, the fact that insufficient food entitlements (Sen 1981), not insufficient provisions of food, are causally responsible for malnutrition and famines, thereby undercutting one (not insignificant) ideological and economic rationale for the mad rush to commercial development of biotechnology in agriculture (in which the basic assumptions are of the Malthusian Darwinist variety).

The axiological centrality of ethical individualism may pertain to Jamieson’s admission that neither ex ante nor ex post consequentialist ethical calculations are well suited to the “most complex biotechnological innovations” fueling the biotechnological revolution, for “we are quite ignorant about how to do the calculation on which the [benefit-cost] test relies. This is because of the inherent complexity of the impacts of many technological innovations, and because exactly what impacts they have will depend on human agency”(Jamieson 2002: 313; Regal 1996). Some may hold out hope for some sort of algorithmic solution to this (temporary) shortcoming of consequentialist reasoning, but I think it reminds us that consequentialism is not a self-sufficient ethical philosophy, however much it has proven indispensable as a (often default) “public philosophy” since the origins of utilitarianism and the associated progressive and enduring social reforms that immediately followed its public acceptance and adoption by politicians and policy makers. Finally, a reconstituted bioethics may be strong enough to rescue medical ethics from its apparent irrelevance alongside the current infatuation with business ethics (Annas 1998: 11), the latter an ethical curriculum and pedagogy constitutionally incapable of critiquing the commercialization of cultural values and the commodification of ethical goods in the wake of the global consolidation of turbo-capitalism in the hands of high financiers and transnational corporations. And the government’s leading role in public health activities, be it, for instance, in the control of infectious diseases or occupational health and safety, does not preclude the private sector playing a part in the vigorous promotion of a healthy populace, nor does it imply an abdication of personal responsibility for lifestyle choices, or entail a heavy-handed paternalism disrespectful of the developmental processes of psychological and moral autonomy.

Public health law by definition blurs the distinction drawn by Rawls between “natural primary goods” and “social primary goods,” while suggesting the criterial ethical and political relevance of the “central human functional capabilities” adumbrated by Martha Nussbaum (after Sen 1987) in forming the ends of public policy and legal regulation (Nussbaum 1999, 2000). Thus we might want to specify as far as possible the precise role of by public health law in the recognition of and in support of the society’s larger efforts to assure the generalized exercise of central human functional capabilities.

Not surprisingly, there is a role for well-considered benevolent legal paternalism, relying, for example, on a model of what Robert E. Goodin calls “retrospective rationality,” used to account in this case for the possibility that individuals are not always the best judges of their own interests. And in those instance where such failures cause unnecessary harms to these individuals (as they will later come to realize and regret), coupled with the sundry costs they impose on the private and public sectors, we have presumptive (meaning rebuttable in principle) warrant for government intervention. In short, one may err in the determination of one’s future interests, in which case “legal compulsion could help protect a person from himself”(Goodin 1982: 49). Legal interference is here justified on the grounds that individuals may not properly anticipate their future interests (or ‘selves’). Goodin illustrates one such case with cigarette smokers:

“Over 90 percent do now know the risks of lung cancer. [….] Smokers tend to discount the probabilities psychologically, thinking ‘it could never happen to me.’ And, psychologically, they lack a full and vivid awareness of the pleasures and pains of the alternative outcomes, exaggerating tobacco’s joys and underestimating cancer’s miseries. [….] While he may antecedently suppose that the pleasures of tobacco outweigh the risks of pain, there is every reason to suppose he would think otherwise should he contract cancer—not just in the sense that anyone who gambles and loses wishes he had never gambled at all, but more importantly in the sense that he had badly underestimated the pains associated with losing the gamble. Policymakers who foresee this preference shift would, following retrospective rationality, be perfectly justified in prohibiting, limiting, or discouraging smoking.” (49-50)

Public policy need not be a slave to the maximization of want satisfaction nor show absolute deference to present preferences. Psychologists and social scientists have staked out a fairly clear set of cases where individuals are not particularly good judges of their own interests: “Generically, these can be characterized as cases involving ‘adaptive preferences,’ probabilities, or the further future” (128). Legal paternalism in the public health domain must operate within institutions that finesse the often fine lines intersecting between citizen demands and social decision-making so as to permit “policy-makers to override mistaken preferences when necessary, but not so much as to cut politicians free from the constraints of citizen preferences altogether”(145).

In other words, public health legislation and policies need not defer to expressed preferences that are manifestly irrational or distorted by clear cognitive biases or social mechanisms (e.g., ideologies) that prevent individuals from ascertaining what is in their best interest (according to criteria or standards invoked, say, by the notion of an ideally rational or ‘reasonable’ person), at least with regard to their health and well-being. Legal interference is here justified on the grounds that individuals may not properly appreciate or anticipate their best or future interests (or ‘selves’), and in such cases where insufficient appreciation or anticipation has deleterious effects on individual and collective health, welfare, and well-being. Conceptions of moral and psychological autonomy as part and parcel of our models of theoretical and practical rationality in general must confront the many reasons why individuals are frequently not the ideal judges of their own best interests as well as what can be done to overcome the reality of such mental phenomena as hyperbolic discounting, self-deception, wishful thinking, myopia, akrasia, and so forth. Government intervention based on a sophisticated understanding of such reasons and strategies designed to overcome obstacles of this type find sufficient warrant in the part they play in enhancing the overall health, well-being, and long-term moral autonomy of individuals.

It is important to distinguish between public health law and (private) health law proper, for the latter is “devoted to personal medical diagnosis, clinical prevention and treatment, while public health is devoted to strategies to identify health risks and improve behavioral, environmental, social, and economic conditions that affect the health of populations” (Gostin 2000: 17-18). “Private” health care law as such is thereby focused on the micro-relations between health care providers (e.g. health maintenance organizations or HMOs), physicians, and patients, concerning itself with the organization, financing and provision of personal medical services, as questions of equity (e.g., access), cost, and choice predominate. A division of labor here may have sound medical, jurisprudential and public policy warrant but ethically, legally, and economically speaking, too hard and fast a distinction on this score may prove obfuscatory or unavailing.

The tension and tradeoffs in public health law and policy between civil liberties and public health are well appreciated, but the possibility and problems of health-heath tradeoffs may deserve more scrutiny (Sunstein 1997, 2002). Health-health tradeoffs involve the recognition that reduction of one health risk may be causally related to increase in another health risk. For example, the intense regulation of nuclear power may lead to preference for less-costly energy sources, such as coal-fired plants, which in turn have peculiar, perhaps greater risks to public health or the health of workers in the industry. In this regard, public health law will broach questions of rational risk regulation (Sunstein 2002) and the corresponding benefits and limitations of cost-benefit analysis (Adler and Posner 2001) and something like the precautionary principle in environmental ethics as evaluative tools used by public agencies.

Richard Epstein proffers a libertarian (‘classical liberal’) polemic against “broad (and meddlesome) definitions of public health,” arguing the approaches like those outlined above “will in all likelihood be conducive to the ill-health of the very individuals whom it seeks to protect,” for it “frustrates the very ends that it is intended to serve,” while “extend[ing] regulation into areas where it ought not to take place….” Epstein’s alternative model hearkens back to an implausible account of the good ol’ days—before 1937—a time, it seems, when public officials well understood “the profound interactions between public health and private wealth creation”(Epstein 2002). The analogy here is government regulation of the “free market,” where government “interference” is thought to guarantee only perverse economic and welfarist effects. The priority given the desideratum of “private wealth creation” is questionable at best, ignoring as it does the sundry reasons for government and its direct promotion of the common good, as well as its indispensable role in the direct and indirect provision of the conditions propitious for individual development and human flourishing.

Neither Sunstein nor Epstein are sufficiently sensitive to the fact, for example, that the “life chances of the citizen in modern societies do[es] not depend exclusively on market choices or on governmental decisions. To an increasing extent, they also depend on allocations made by relatively autonomous institutions beginning with admission or non-admission to nursery school and ending with admission or non-admission to nursing homes”(Elster 1992). These relatively autonomous institutions allocate goods and burdens in civil society, and if those institutions’ goods and burdens have direct causal bearing on public health and well-being (e.g., the allocation of kidneys; selection of soldiers for military service; or even access to higher education), then the question of precisely how such allocative decisions are made has some bearing on public health law.

Progressive public health law and policies are not the sole prerogative of affluent nation-states, a fact recognized by Harvard University’s Department of Population and International Health, an inter-disciplinary field of the first order. Nor need bioethical reflection be an exercise of parochial or provincial privilege which ignores the ethical traditions and theories of sundry worldviews in a plural society, while confining itself to the health concerns, scientific orientation, and high-tech medicine found almost exclusively in the affluent parts of the world, that is, the welfare states of the northern hemisphere. The so-called developing economies of emerging polities have their own unique set of health problems, problems that necessitate the prior spadework of economists, for example, on “the links connecting poverty, high fertility, and the incidence of undernourishment, on the one hand, and the environmental resource base and civic disconnection, on the other…”(Dasgupta 1997: 5). Epstein’s obsessive focus on the variable of “private wealth creation” (secure property rights notwithstanding) may be especially inappropriate in those regions experiencing a growing economy over an extended period of time while substantial sectors of the population remain caught in large-scale poverty traps, or where and when one finds, as among the rural poor, communal ownership of assets (which, as Dasgupta notes, does not mean the absence of ‘rampant inequities’ or that the local commons are ‘managed democratically’).

Legal paternalism may be the preferred policy prescription of development economists apprised of the way in which, for instance, widespread chronic food insecurity impedes long-term economic growth essential to meeting democratically determined development goals (Reutlinger and Pellekaan 1986: 6). Here we should speak of the increasing relevance of international law and public health, while citing the desirability of a global theory of public health law which also takes due cognizance of the growing role of non-state actors in public health governance (Fidler 2000, 2002) in a world increasingly capable of refusing the pretensions of Western hegemony while imagining when not extending the distinct but overlapping domains of socio-economic and political democracy and the benefits of an equal freedom.

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