the tensions inherent in public health law

The November/December resolution throws light on a growing area of legal interest: public health. In "Mapping the Scope and Opportunities for Public Health Law in Liberal Democracies," found in The Journal of Law, Medicine, and Ethics, Winter 2007, Roger Magnusson, a law professor at the University of Sydney, notes (among other things) the tensions in contemporary public health law.

The first, as always, is the tension between proper government action and individual rights:

Lawrence Gostin points out that the protection of the public's health is necessarily a public function that should also be regarded as a duty of government. Discharge of that duty carries "intrinsic and instrumental value for individuals, communities, and entire nations." At the same time, public health law is that body of law which - in a liberal democracy - keeps the state on a short leash, and there is considerable resistance to lengthening it. At the same time, in one of many contradictions in American law, Nan Hunter argues that this is precisely what is occurring as public health and national security have moved closer together to meet the threat of bioterrorism and pandemic influenza.

The "national security" angle is one that affirmatives should explore. The resolution doesn't specify who would be receiving compulsory immunizations; the Negative, presumably, would have to defend the right of medical workers and soldiers (among others) to refuse immunization, even in a crisis.

However, an important Negative consideration is the tension between wider and narrower conceptions of just what constitutes "public health concerns"--and the propensity for the debate to expand into the international arena.

The health and human rights movement provides a further example of public health law expanding to embrace, in this case, global human rights norms and laws, exploring the potential for the promotion or neglect of global norms to enhance or harm the health of populations. The usual criticisms of these approaches is that they turn "life, the universe and everything" into a subdivision of health. In Mark Rothstein's words, "just because war, crime, hunger, poverty, illiteracy, homelessness and human rights abuses interfere with the health of individuals and population does not mean that eliminating these conditions is part of the mission of public health."

The effect of such a broad definition is not only to increase government overreach, but to insulate the government from criticism, since "public health" is a powerful way to frame policies that might otherwise be seen as the normal risks of everyday life, accepted in a free society. Furthermore, globalization puts the drafting and enacting of such policies out of the reach of citizens within any given nation. Thus, from a social contract perspective, a widening "public health" definition is doubly a menace to individual rights and governmental legitimacy.