Public Health Law and Ethics
California/Milbank Books on Health and the Public
1. The Corporate Practice of Medicine: Competition and Innova-
tion in Health Care, by James C. Robinson
2. Experiencing Politics: A Legislator’s Stories of Government and
Health, by John E. McDonough
3. Public Health Law: Power, Duty, Restraint, by Lawrence O.
Gostin
4. Public Health Law and Ethics: A Reader, edited by Lawrence
O. Gostin
Public Health
Law and Ethics
A Reader
Edited by Lawrence O. Gostin
UNIVERSITY OF CALIFORNIA PRESS
Berkeley · Los Angeles · London
THE MILBANK MEMORIAL FUND
New York
University of California Press
Berkeley and Los Angeles, California
University of California Press, Ltd.
London, England
©2002 by Lawrence O. Gostin
Library of Congress Cataloging-in-Publication Data
Public health law and ethics : a reader / edited by
Lawrence O. Gostin.
p. cm.—(California/Milbank books on health and
the public)
Includes bibliographical references and index.
ISBN 0-520-23174-0 (alk. paper)—

· J. Michael McGinnis and William H. Foege, Actual
Causes of Death in the United States / 50 · Geoffrey Rose,
Sick Individuals and Sick Populations / 58
Contents
3. Public Health Ethics:
The Communitarian Tradition 67
SOURCES: Michael Walzer, Security and Welfare / 69 · Dan
Beauchamp, Community: The Neglected Tradition of Public
Health / 76 · Norman Daniels et al., Justice Is Good for Our
Health / 82
4. Human Rights and Public Health 95
SOURCES: George J. Annas, Human Rights and Health—The
Universal Declaration of Human Rights at 50 / 98 ·
Jonathan M. Mann et al., Health and Human Rights / 106 ·
Jonathan M. Mann, Medicine and Public Health, Ethics, and
Human Rights / 113 · Brigit Toebes, Towards an Improved
Understanding of the International Human Right to Health / 116
5. Reasoning in Public Health:
Philosophy, Risk, and Cost 127
SOURCES: Philip Cole, The Moral Bases for Public Health
Interventions / 130 · Supreme Court of Vermont, Benning v.
Vermont / 137 · Stephen Breyer, Breaking the Vicious Circle:
Towards Effective Risk Regulation / 140 · Cass R. Sunstein,
Health-Health Tradeoffs / 145 · Louise B. Russell, Cost-
Effectiveness Analysis / 151 · Kenneth J. Arrow et al., Is
There a Role for Benefit-Cost Analysis in Environmental,
Health, and Safety Regulation? / 153
part two: the law and the public’s health
6. Public Health Duties and Powers 161
SOURCES:Wendy Parmet, Health Care and the Constitution:

SOURCES: Stephen P. Teret, Litigating for the Public Health /
268 · Wendy E. Parmet and Richard A. Daynard, The New
Public Health Litigation / 269 · Tom Christoffel and Stephen
P. Teret, Epidemiology and the Law: Courts and Confidence
Intervals / 276 · Supreme Court of the United States, Daubert
v. Merrell Dow Pharmaceuticals, Inc. / 281 · Peter W. Huber,
Galileo’s Revenge: Junk Science in the Courtroom / 287
part three: tensions and recurring themes
10. Surveillance and Public Health Research:
Privacy and the “Right to Know” 295
SOURCES: Ruth L. Berkelman et al., Infectious Disease
Surveillance: A Crumbling Foundation / 296 · Daniel M.
Fox, From TB to AIDS: Value Conflicts in Reporting Disease
/ 300 · Sandra Roush et al, Mandatory Reporting of Diseases
and Conditions by Health Care Providers and Laboratories /
304 · Supreme Court of the United States, Whalen v. Roe /
307 · Allan M. Brandt, Racism and Research: The Case of
the Tuskegee Syphilis Study / 312 · Ronald Bayer and
Kathleen E. Toomey, HIV Prevention and the Two Faces of
Partner Notification / 321 · Lawrence O. Gostin et al.,
Informational Privacy and the Public’s Health: The Model
State Public Health Privacy Act / 328
Contents vii
11. Health Promotion: Education,
Persuasion, and Free Expression 335
SOURCES: David R. Buchanan, Disquietudes / 339 · Ruth R.
Faden, Ethical Issues in Government-Sponsored Public
Health Campaigns / 346 · Supreme Court of the United
States, 44 Liquormart, Inc. v. Rhode Island / 357 · Supreme
Court of the United States, Lorillard Tobacco Co. v. Reilly /

SOURCES: Mary E. Wilson, Infectious Diseases: An
Ecological Perspective / 450 · Stuart B. Levy, Antibiotic
Availability and Use: Consequences to Man and His
Environment / 456 · Donald A. Henderson, The Looming
Threat of Bioterrorism / 463 · Centers for Disease Control
and Prevention, Biological and Chemical Terrorism: Strategic
Plan for Preparedness and Response / 468 · Muin J. Khoury
et al., Challenges in Communicating Genetics: A Public
Health Approach / 475 · Allen Buchanan et al., Two Models
for Genetic Intervention / 480
Bibliography 487
Table of Cases 509
Index 513
About the Author 523
Contents ix

List of Illustrations
PHOTOGRAPHS
1. Ten great public health achievements of the
twentieth century xxxii
2. The threat of infectious diseases from incoming vessels 22
3. Spinal tap performed as part of the Tuskegee syphilis study 66
4. Preparing a patient for irradiation at a cyclotron 94
5. Cuyahoga River in flames 126
6. Measures to combat the West Nile virus 160
7. National Youth Association march to encourage
syphilis testing 202
8. Painting at an exhibition featuring the public’s response
to mad cow disease 228
9. Ford Motor Co. executives at House Committee

16. “Of cigarettes and science” 355
List of Tables
1. Public health 3
2. Public health ethics 11
3. Human rights 16
4. Goals and recommendations for public health’s
infrastructure 37
5. Ten leading causes of death by age group: 1997 48–49
6. School immunization laws among states 380–382
7. Time line of selected federal and state court decisions
regarding vaccination law and policy 387–389
8. Ten great public health achievements: United States,
1900–1999 448
9. Current and future public health challenges 448
10. Deadliest five biological agents 462
11. Laws to combat bioterrorism 471
12. Public health powers needed in a bioterrorism event 471
A READER IN PUBLIC HEALTH LAW AND ETHICS:
THE WEB SITE
To provide readers with the most comprehensive and timely informa-
tion possible, I have launched a companion web site to complement this
text. This site, which is integrated into the web site of the Center for
Law and the Public’s Health at Georgetown and Johns Hopkins Uni-
versities, is made possible with the generous support of the Milbank
Memorial Fund. The Reader web site is designed to greatly enhance
your reading experience and to provide an important resource for pub-
lic health law students, scholars, and practitioners.
Throughout this book, readers are referred to materials posted on
this site. The contents of the site are keyed to the chapters of the
Reader, and include

Omissions of text within articles and cases are indicated through the
use of ellipses (. . .) in accordance with the following rules: three peri-
ods (. . .) indicate an omission within a sentence and four periods (. . . .)
indicate an omission that includes a sentence break (and may consist of
part of a paragraph or several paragraphs). Five asterisks within the
text (* * * * *) indicate a break between the end of an article or case
and my own written commentary, except where this break is clear (e.g.,
the excerpt is followed by a major subject header).
The term “companion text” refers to my public health law book,
Public Health Law: Power, Duty, Restraint (New York: Milbank Me-
morial Fund and Berkeley: University of California Press, 2000). Refer-
ences to the “Reader web site” refer to the web site accessible at the
following address: www.publichealthlaw.net/reader. This regularly up-
dated web site offers supplemental information, cases, and updates to
the Reader text.
Concerning abbreviations, the first time an abbreviation is men-
tioned in a chapter, I have included the full name or term to which the
abbreviation pertains (e.g., Institute of Medicine [IOM]), unless the ab-
breviation is commonly known (e.g., AIDS). Each subsequent use of the
name or term in the text or excerpt utilizes the abbreviation.
I welcome comments from readers about the comprehensiveness,
readability, and clarity of the Reader. I would appreciate being in-
formed if I have omitted major articles or cases important to public
health law or ethics.
Conventions Used in This Book xvi
xvii
Foreword
The Milbank Memorial Fund is an endowed national foundation that
engages in nonpartisan analysis, study, research, and communication
on significant issues in health care and public health. The fund makes

The field of public health is typically regarded as a positivistic pursuit
and, undoubtedly, our understanding of the etiology and response to
disease is heavily influenced by scientific inquiry. Public health policies,
however, are shaped not only by science but also by ethical values, legal
norms, and political oversight. Public Health Law and Ethics: A Reader
offers a careful selection of government reports, scholarly articles, and
court cases designed to illuminate the ethical, legal, and political issues
in the theory and practice of public health.
Before examining law and ethics, it is helpful to explore the mean-
ing of public health. The excerpts and commentaries in the Reader offer
several alternative definitions of public health, but focus principally on
the Institute of Medicine’s (IOM) influential definition in The Future of
Public Health: “Public health is what we, as a society, do collectively to
assure the conditions for people to be healthy.”
The IOM definition emphasizes the collective responsibility of or-
ganized society to promote the health of the population. Despite the
richness of this definition, the IOM does not delineate the field’s legit-
imate scope within a representational democracy. Should public health
be confined to relatively discrete interventions to prevent immediate
causes of injury and disease—for example, surveillance, health educa-
tion, and infectious disease control? Alternatively, should public
health be concerned with larger social and economic problems that
play important, but not fully understood, roles in health and disease—
such as livable cities, adequate housing, violence prevention, and re-
duction in socioeconomic disparities? The Reader does not resolve the
tension between a narrow and a broad focus of public health, but it
does frame the question and suggests potential benefits and disadvan-
tages of each approach.
THE PUBLIC HEALTH LAW INFRASTRUCTURE
The field of public health is grounded in law and cannot function ef-

Preface xxi
a vision for public health in the twenty-first century, including law re-
form. Just as important, the Robert Wood Johnson and Kellogg foun-
dations’ Turning Point project launched a “Public Health Statute
Modernization” initiative designed to write a comprehensive model
state public health law. For a Model Emergency Health Powers Act
written in response to the terrorist attacks on September 11, 2001, see
www.publichealthlaw.net.
Public health laws not only provide the foundations for public health
practice, but also provide a set of tools for public health authorities.
There are at least five models for legal intervention designed to prevent
injury and disease and promote the public’s health. Although legal in-
terventions can be effective, they often raise social, ethical, or constitu-
tional concerns that warrant careful study.
Model 1 is the power to tax and spend. This power, found in federal
and state constitutions, provides government with an important regu-
latory technique. The power to spend enables government to set condi-
tions for the receipt of public funds. For example, the federal govern-
ment grants highway funds to states on condition that they set the
drinking age at 21. The power to tax provides strong inducements to
engage in beneficial behavior or refrain from risk behavior. For exam-
ple, taxes on cigarettes significantly reduce smoking, particularly
among young people. The spending and taxing power, however, can be
seen as coercive and, in many cases, “sin” taxes are highly regressive.
Model 2 is the power to alter the informational environment. Gov-
ernment can add its voice to the marketplace of ideas through health
promotion activities such as health communication campaigns, provide
relevant consumer information through labeling requirements, and
limit harmful or misleading information through regulation of com-
mercial advertising of unsafe products (e.g., cigarettes and alcoholic

turer (Smith & Wesson) to develop safer firearms. At the same time,
litigation may be antidemocratic and unfair. Critics claim that the
policy-making branch of government, not the judiciary, should make
judgments about unsafe products. They also point out that the finan-
cial benefits of litigation frequently go to a few plaintiffs and their at-
torneys rather than to the entire population that has been harmed.
The final model is deregulation. Sometimes laws are harmful to pub-
lic health and stand as an obstacle to effective action. For example, crim-
inal laws proscribe the possession and distribution of sterile syringes and
needles. These laws, therefore, make it more difficult for public health
authorities to engage in HIV prevention activities. Deregulation can also
be controversial since it often involves a direct conflict with laws repre-
senting another set of values. For example, the criminal law represents
society’s disapproval of drug use and its intention to punish those who
make it easier to inject unlawful drugs. Deregulation becomes a symbol
of weakness in the fight against drugs that is often unpopular among the
poor, minorities, and law enforcement.
The government, then, has many legal “levers” designed to prevent
injury and disease and promote the public’s health. Legal interven-
tions can be highly effective and need to be part of the public health
officer’s arsenal. However, legal interventions can be controversial,
xxii
Preface xxiii
raising important ethical, social, constitutional, and political issues.
These conflicts are complex, important, and fascinating for students
of public health law. The Reader systematically examines these kinds
of legal interventions and the inevitable trade-offs between collective
and individual interests.
PUBLIC HEALTH ETHICS
The field of bioethics flourished during the late twentieth century. This

quate medical care, housing, and food. This person may still have an
interest in ensuring that others in the community have access to
these, and other, necessities of life. If one’s neighbors feel sick, hun-
gry, or vulnerable, it affects everyone. An unhealthy or insecure com-
munity may produce harms such as increased crime and violence,
impaired social relationships, and a less productive workforce. Con-
sequently, every person has a reason to support minimum levels of
health and to reduce the sharp disparities in morbidity and mortality
in the population.
There are important benefits, moreover, that even wealthy people can-
not attain on their own and that require collective action. Without or-
ganized societal activities, people cannot assure many of the conditions for
health such as clean air and water, safe roads and products, sanitation,
and the control of infectious disease. Many of life’s benefits, therefore, can
be understood only as collective goods. In other words, individuals have
a stake in living in a society that regulates risks that all share. People may
have to forgo a little bit of self-interest in exchange for the protection and
satisfaction gained from a healthier and safer community.
In the late twentieth century, bioethicists posed the question, What
desires and needs do you have as an autonomous, rights-bearing indi-
vidual? Now it is important to ask another kind of question: What kind
of a community do you want and deserve to live in, and what personal
interests are you willing to forgo to achieve a good society?
We also need to better understand the concept of “the good” or, more
particularly, who decides which of these goods are preferable in any
given case. In medicine, the meaning of “the good” is defined purely in
terms of the individual’s wants and needs. It is the patient, not the physi-
cian or family, who decides the appropriate course of action. For exam-
ple, patients could decline medical treatment (e.g., an amputation or
chemotherapy) even though it would improve their health and extend