the expanding waistline of public health law

Another in a series of posts covering the Nov/Dec immunization resolution.

Public health law seems to want to gobble up more and more legal categories, if Mark Hall, a law professor at Wake Forest, is correct. In an article titled "The scope and limits of public health law," found in the Summer 2003 edition of Perspectives in Biology and Medicine,, Hall describes, through anecdote and argument, how public health law is perpetually expanding in influence.

First, Hall distinguishes health care law from public health law, and what makes the latter inherently power-hungry.

Public health law is about enforcing government efforts to promote health. It starts with the assumption that public authority is plenary* and sets restraints on this authority only it if invades fundamental interests or is demonstrably unbalanced or excessive. Under public health law, the presumptions are all in favor of intervention, whereas under health care law, the presumptions are all in favor of privacy. Public health law is not troubled by making vaccinations mandatory, despite possible harm from side effects that may greatly outweigh the benefits of vaccination to any one individual (due to an individual's ability to free ride on the "herd immunity" of the community), nor is public health law troubled by requiring that more potent and riskier forms of a vaccine be used, even though the enhanced benefits accrue to people other than those who take on the risk.

*Absolute, unqualified.

This is the obvious first prong of a potential Neg strategy: pointing out that "public health concerns" are coldly utilitarian, and woe betide the unfortunate soul who is forced to take one for the team.

Of course, the Aff will argue that not only are the rewards worth the risks, but that the very nature of the problem demands compulsion. Hall again:

The classic subjects of public health law are communicable diseases, personal hygiene, sanitary water and sewer systems, safe food, and injury prevention. These disparate situations all involve significant collective action problems, meaning that individuals acting in their own self-interest, even if fully informed and rational, will not effectively address the problem because they do not internalize some of the major costs or benefits of action or non-action, or for other reasons a centralized response is much more cost-effective.... Identifying and eliminating the source of contagion for a communicable disease requires more effort and cost than any one individual or small group is likely to undertake. A public agency is necessary to garner the resources needed for collective action and to wield the authority for coercive restrictions on liberty or property.

But the Negative isn't done yet; the second prong of the argument regards the larger risk of allowing public health advocates ever-increasing power, which has

...a pervasive effect on public health officials' sense of what they are entitled to do and of the tools that are available to address a public health problem. The uncompromising authoritarian and utilitarian public health perspective... is intensely ends-oriented, which tends to ingrain the following habit of thought: once having identified a causal connection to a widespread health problem, action is necessary to eradicate the cause and eliminate the problem at its source, and it falls within the authority of public health or other government officials to take the necessary actions. The necessary actions are those that produce the desired results. Public health officials may start with less intrusive, more innocuous measures, such as information, education, or taxation, but if these fail, then the case is even stronger for pursuing a panoply of more aggressive and coercive strategies, including mandates and bans, closures and seizures, quarantine, and criminal sanctions. The metaphors of public health strategy are war-like. Its rhetoric is to attack, conquer, and eradicate, rather than to exercise prudence, balance, and restraint.

As the saying goes, "desperate times demand desperate measures." The problem is the tendency to see desperation in any risk, and to trample over individual needs, desires, or rights in the process. As problems like crime or poverty are cast in terms of public health, we risk going beyond the Nanny State to a form of medicalized tyranny.