Lawrence O. Gostin, et.
excerpted from: Lawrence O. Gostin, Scott Burris, Zita
Lazzarini, the Law and the Public's
Health: a Study of Infectious Disease Law in The United States, Columbia Law Review 59-118,
67-77 (January, 1999) (271 Footnotes)
The condition of public health is one of paradox. Most people support a high level of public
health, fewer are eager to pay for it, and most are positively opposed to changing their own
activities to promote it. Public health authorities have enormous legal power, yet they often
cannot exercise it for political, cultural, or resource reasons, and the power they possess is often
not the power they need. The public cares passionately about health threats, but often in inverse
relation to the quantitative magnitude of the risk. The measures that will provide the most
societal benefit often provide little or no discernible benefit to any one person, and vice versa.
Although there is a virtually bottomless purse for treating illness, it appears that there is little in
the budget to prevent it or, more generally, to ensure the conditions in which people can be
A. Defining Public Health
"Public health" refers both to a goal for the health of a population and to professional practices
aimed at its attainment. In both senses, the term tends to be broadly defined. The constitution of
the World Health Organization (WHO) identifies the goal as "a state of complete physical, mental
and social well-being and not merely the absence of disease or infirmity,"
Even this carefully narrowed definition places the goal of public health at the intersection of deep
social fault lines. First, it posits that public health is a function of the health of populations, not
individuals. Geoffrey Rose has brilliantly described the practical implications of this difference for
disease prevention, including most notably the "prevention paradox."
The ability of public health work to attract support is, however, essential to its success, for, as
the definition of public health also reminds us, public health operates in a world of choices in the
allocation of limited resources. The great sanitarian Herman Biggs famously remarked that "public
health is purchasable,"
Finally, public health's desire for optimally healthy populations builds into the definition a
concern for distributive justice that must, on occasion, challenge the current distribution of
wealth. A society in which the more prosperous segment of the population enjoys health
conditions that are as good as any in the world, but where many are living substantially below the
norm, is not a nation with good public health. Reducing such imbalances requires some
redistribution of wealth from those who have more to those who have less. Similarly, public health
is inevitably faced with the need to divide a small pie among a hungry crowd. Violence, HIV,
breast cancer, hepatitis, and many other threats are, in some sense, in competition for prevention
resources, and decisions must be made about the most effective allocation of funds. Thus,
rationing--a notion controversial enough to have helped kill President Clinton's health care reform
initiative--is, in public health, a "moral imperative . . . in the face of scarce resources."
"Public health," as the practice that pursues the goal of a healthy population, also has a broad
definition. One of the founders of modern public health characterized it as
organized community efforts for the sanitation of the environment, the control of community
infections, the education of individuals in principles of personal hygiene, the organization of
medical and nursing service for the early diagnosis and preventive treatment of disease, and the
development of the social machinery which will ensure to every individual in the community a
standard of living adequate for the maintenance of health.
This definition of the activity of public health embraces both public and private sector activities.
The work of philanthropies and voluntary organizations has always been extremely important in
American public health, but in this Article we focus on the work of government agencies. When it
becomes a function of the state, public health also acquires the trappings associated with a
governmental activity: generalized mistrust, doubts about efficiency, and fear of oppression.
Likewise, public health measures become subject to general legal limitations on governmental
activity and to prevailing attitudes about the sorts of things government ought to do. As we will
see, many disputes in public health turn less on its goal, which everyone professes to support, and
more on the proper scope of governmental intervention to achieve it.
B. The Determinants of Health and Disease
If the idea of public health carries with it a tendency toward controversy, the controversy only
intensifies as one moves into the realm of epidemiology and the science of identifying the
determinants of health and disease. Within the discipline, there are three distinct ways of
conceptualizing the determinants of health: the microbial model, the behavioral model, and the
1. The Microbial Model.--The "germ theory" of public health probably conforms best with the
lay perception of disease, together with its causes and methods of control. Disease, under this
view, is seen as a product of microbial infection (or exposure to toxic substances of some other
sort), and the job of public health is to identify the pathogen and to eliminate or contain it.
The description of disease as being caused by contact with germs has a great deal of social
acceptance, so many measures aimed at controlling microbes are uncontroversial. The microbial
model reflects our historical experience with communicable disease, and its apparent success has
helped win it social authority. Many antimicrobial interventions impose minimal burdens or have
been in place so long that the burdens they impose are thought of as a normal part of life. For
example, parents routinely accept school vaccination requirements without protest, and the public
expects health departments to ensure that people preparing food in restaurants will not transmit
Nevertheless, communicable disease control measures based on the microbial theory can be
controversial. Although few people object to disease reporting, partner notification, or even
quarantine on principle, resistance to such measures may arise from a combination of social
vulnerability, mistrust of government authorities, characteristics of the disease itself, and the
degree to which the particular use of the measure seems consistent with past practice. The
occasional quarantine of a college dorm for measles inspires no protest, and it has not been
suggested that cancer registries deter people from getting care. Even the use of vigorous contact
tracing and isolation methods against tuberculosis has occasioned little or no protest. By contrast,
in the HIV epidemic, people living with HIV and their advocates have perceived these same
measures as profoundly threatening, and have opposed them using the language of constitutional
rights generally deployed when accusing the government of overstepping its bounds.
2. The Behavioral Model.--While the germ theory continues to undergird a great deal of public
health work, public health in the second half of this century has come to recognize another
important determinant of health: human behavior. This notion of disease is reflected in modern
discourse about the roles of smoking, diet, and sedentary lifestyle in the development of cancer,
heart disease, and stroke. But the influence of behavior in causing injuries and accidents (e.g., the
use of seatbelts, bicycle helmets, and firearms) and in transmitting infection (e.g., sexual or
needle-sharing behavior) is also well-recognized. In 1990, in the United States, approximately
400,000 deaths each year were attributable to tobacco use, 300,000 to diet and activity patterns,
and 100,000 to alcohol consumption.
Under the behavioral theory of disease control, public health assessment and interventions occur
at the point of human conduct, whether at the individual, group, or organizational level. The
behavioral model measures successful interventions or improvements in "health" of a population
in reductions in risk behavior, so modern forms of surveillance do not merely "count" cases of
disease, but closely monitor the activities that give rise to morbidity and premature mortality.
A behavioral theory of disease tends to produce three complementary kinds of political disputes.
First, seeing public health predominantly as the control of risky behavior can quickly become, for
cultural and political reasons, a warrant for treating health entirely as a matter of personal
responsibility. Health can be seen not as a social good to be achieved by concerted social action,
but as an individual's reward for virtuous living. Conversely, ill health can be viewed, at least in
part, as a just desert for wrongful behavior.
Second, behavioral theory invites what can be seen as paternalistic interference with personal
choices. When government penalizes high risk behaviors, such as failure to wear a seatbelt or
motorcycle helmet, or patronage of a bathhouse or sex cinema, it determines the behaviors in
which citizens may or may not engage.
Finally, as Lawrence Lessig has perceptively documented, health measures aimed at changing
individual behavior tend to work by changing its social meaning.
In many instances, however, the current meaning of the behavior reflects other "regulatory"
goals. For those who propose abstinence as the best strategy against sexually transmitted diseases
or drug dependency, shame at the sight of a condom or guilt about drug use usefully reinforces
the belief that the behavior is wrong. Indeed, where government promotes sex education,
distributes condoms, or exchanges syringes, the state implicitly accepts that behavior as inevitable,
which some people perceive--in a "you're-either-with- us-or-against-us" analysis--as an
"endorsement" of sex or drug use.
3. The Ecological Model.--A third account of disease control focuses on "ecological"
understandings of health (i.e., the sources of disease in the social and physical environment). The
ecological model conceives of illness not as an external threat such as a pathogen or toxin, nor as
a function of personal choices, but rather as a product of society's interaction with its
Ecological health measures focus on the social conditions that produce unhealthy behavior or
environmental hazards. Smoking, for example, is not treated simply as a personal choice, but as a
product of intense marketing efforts and a culture that fuels social attitudes and practices that
promote the behavior. Government responses range from education about the risks and social
marketing of alternative behaviors to restrictions on commercial speech, taxes on cigarettes, and
withdrawal of direct and indirect tobacco subsidies.
Understanding the ecology of health and disease helps to explain why public health authorities
are so often stymied in work that might seem, on the surface, to be directed to the universally
acceptable goal of better health for all. From an ecological perspective, a society's pattern of ill
health is a mirror, reflecting how a society produces and distributes wealth, creates conditions for
human health (or its antithesis), constructs social norms, and organizes its peoples and
communities. Inevitably, public health regulations targeting the causes of injury and disease will
challenge behavior that people enjoy, that constitutes their moral vision, or that makes them