Public health is concerned with how to improve the population’s health. At times, though, actions to improve the community’s health may collide with individual civil rights. For example, a public health response to a bioterrorism attack, such as smallpox, may require relaxing an individual’s due process protections to prevent the smallpox from spreading. This tension lies at the heart of public health policy. It also must be considered in discussing the concept of human rights in health.Proponents of incorporating the concept (...) of human rights in health emphasize the importance of both individual rights and collective rights. They argue that observing human rights is not only consistent with broad public health goals, but necessary to their attainment. To many human rights advocates, the concept is not limited to protecting against governmental intrusion. Accordingly, they emphasize the government’s obligation to promote attainment of human rights by, for instance, providing adequate health care. (shrink)

Public health is concerned with how to improve the population’s health. At times, though, actions to improve the community’s health may collide with individual civil rights. For example, a public health response to a bioterrorism attack, such as smallpox, may require relaxing an individual’s due process protections to prevent the smallpox from spreading. This tension lies at the heart of public health policy. It also must be considered in discussing the concept of human rights in health.Proponents of incorporating the concept (...) of human rights in health emphasize the importance of both individual rights and collective rights. They argue that observing human rights is not only consistent with broad public health goals, but necessary to their attainment. To many human rights advocates, the concept is not limited to protecting against governmental intrusion. Accordingly, they emphasize the government’s obligation to promote attainment of human rights by, for instance, providing adequate health care. (shrink)

An ongoing debate among legal scholars and public health advocates is the role of litigation in shaping public policy. For the most part, the debate has been waged at a conceptual level, with opponents and proponents arguing within fairly well-defined boundaries. The debate has been based either on speculation of what litigation could achieve or on ideological grounds as to why litigation should or should not be used this way. With the exception of Rosenberg's study of how litigation shaped policy (...) in civil rights, abortion, and environmental matters, there is almost no empirical support for either position.In recent years, the most ardent proponents of litigation as public policy have been public health advocates. Perhaps out of frustration with the inability to achieve desired public health goals through the legislative branch of government, public health advocates have pursued litigation as an alternative strategy. Beginning with tobacco class action litigation in the early 1990s and continuing with litigation against gun manufacturers at the end of that decade, public health advocates have waged a veritable litigation assault aimed at changing how public health policy is formed. (shrink)

An ongoing debate among legal scholars and public health advocates is the role of litigation in shaping public policy. For the most part, the debate has been waged at a conceptual level, with opponents and proponents arguing within fairly well-defined boundaries. The debate has been based either on speculation of what litigation could achieve or on ideological grounds as to why litigation should or should not be used this way. With the exception of Rosenberg's study of how litigation shaped policy (...) in civil rights, abortion, and environmental matters, there is almost no empirical support for either position.In recent years, the most ardent proponents of litigation as public policy have been public health advocates. Perhaps out of frustration with the inability to achieve desired public health goals through the legislative branch of government, public health advocates have pursued litigation as an alternative strategy. Beginning with tobacco class action litigation in the early 1990s and continuing with litigation against gun manufacturers at the end of that decade, public health advocates have waged a veritable litigation assault aimed at changing how public health policy is formed. (shrink)

Many observers have argued that the US health care system could be more efficient, and achieve better outcomes if providers focused more on improving the community's health, not just the welfare of individual patients. The passage of the Affordable Care Act in 2010 seemed to herald the promise of such reforms, and greater integration of the health care and public systems. In this article, we reassess the quest for integration, a quest we call the “integration project.” After examining the modest (...) steps taken so far toward integration, we consider some conceptual barriers to integration as well as some of the risks it might portend for the public health system. Our assessment contributes to wide-ranging debates among public health advocates, practitioners, and policymakers as to the health care system's role in protecting public health, and how the public health system can best be organized to meet expected population health challenges. (shrink)

The second of five commentaries on “Bloomberg's Health Legacy: Urban Innovator or Meddling Nanny?” from the September‐October 2013.

In 2004, the journal Health Matrix published a very interesting symposium volume titled “The Field of Health Law: Its Past and Future. As the title implies, the various commentators took both a retrospective and a prospective look at past trends and future prospects in health law. Some, including Clark Havighurst, Skip Rosoff and Walter Wadlington, wrote thoughtful essays on the development of health law over time and the implications of those trends. Others, including Rob Schwartz, Jim Blumstein, Rand Rosenblatt, and (...) Mark Hall and Carl Schneider, wrote equally thoughtful essays that reflected on the past but focused more on future directions and prospects. And one, Kep Wing, wrote a semi-dyspeptic essay debunking the entire field of health law.Taken together, these essays present a comprehensive view of how health law has developed so far and where its future might lie. Four themes emerge from the collected writings. First, there is considerable agreement on how and why health law has developed, but little agreement on where it is headed. (shrink)

In 2004, the journal Health Matrix published a very interesting symposium volume titled “The Field of Health Law: Its Past and Future. As the title implies, the various commentators took both a retrospective and a prospective look at past trends and future prospects in health law. Some, including Clark Havighurst, Skip Rosoff and Walter Wadlington, wrote thoughtful essays on the development of health law over time and the implications of those trends. Others, including Rob Schwartz, Jim Blumstein, Rand Rosenblatt, and (...) Mark Hall and Carl Schneider, wrote equally thoughtful essays that reflected on the past but focused more on future directions and prospects. And one, Kep Wing, wrote a semi-dyspeptic essay debunking the entire field of health law.Taken together, these essays present a comprehensive view of how health law has developed so far and where its future might lie. Four themes emerge from the collected writings. First, there is considerable agreement on how and why health law has developed, but little agreement on where it is headed. (shrink)

The transformation of health-care delivery from fee-for-service medicine to managed care represents a fundamental philosophical shift away from the prevailing medical ethos that the needs of the individual patient take precedence over competing social values, such as reducing health-care costs. In managed care, financial incentives to reduce health-care utilization may result in denying an individual’s claim for medical services.Litigation challenging managed care’s resource allocation decisions often presents the need to resolve conflicting social policy goals, such as the tension between an (...) individual patient’s access to health care and a managed care organization’s need to restrain costs. Conflicts may arise when a patient’s desire for unconstrained health care clashes with a provider’s and an insurer’s cost containment strategies. In turn, cost containment strategies may raise questions about restrictions on physician autonomy and conflicts among stakeholders for control over resource allocation decisions. (shrink)

The transformation of health-care delivery from fee-for-service medicine to managed care represents a fundamental philosophical shift away from the prevailing medical ethos that the needs of the individual patient take precedence over competing social values, such as reducing health-care costs. In managed care, financial incentives to reduce health-care utilization may result in denying an individual’s claim for medical services.Litigation challenging managed care’s resource allocation decisions often presents the need to resolve conflicting social policy goals, such as the tension between an (...) individual patient’s access to health care and a managed care organization’s need to restrain costs. Conflicts may arise when a patient’s desire for unconstrained health care clashes with a provider’s and an insurer’s cost containment strategies. In turn, cost containment strategies may raise questions about restrictions on physician autonomy and conflicts among stakeholders for control over resource allocation decisions. (shrink)

In 2008, Representative John Read of Mississippi recently co-sponsored state legislation that would ban restaurants from serving obese customers. He later admitted that the bill was a publicity stunt,meant to “shed a little light on the number one problem in Mississippi.” Although controversial, Read’s bill exemplifies both the current perception of obesity as a national public health problem and the general sentiment underlying the types of interventions that are being considered to address this issue. The proposed legislation also demonstrates how (...) policymakers can use or, in this case misuse, information about obesity to generate significant discussion on an issue along with ill-conceived legal interventions.Information sharing and the methods used to share best practices are components of the fourth core element of public health legal preparedness. (shrink)

In 2008, Representative John Read of Mississippi recently co-sponsored state legislation that would ban restaurants from serving obese customers. He later admitted that the bill was a publicity stunt,meant to “shed a little light on the number one problem in Mississippi.” Although controversial, Read’s bill exemplifies both the current perception of obesity as a national public health problem and the general sentiment underlying the types of interventions that are being considered to address this issue. The proposed legislation also demonstrates how (...) policymakers can use or, in this case misuse, information about obesity to generate significant discussion on an issue along with ill-conceived legal interventions.Information sharing and the methods used to share best practices are components of the fourth core element of public health legal preparedness. (shrink)

It should come as no surprise to any observer of health policy debates that the preemption provisions of the Employee Retirement Income Security Act will play a major role in determining the contours of any health reform initiative. For the past few years, many states have been aggressively pursuing health reform experiments, while congressional action has essentially been deadlocked along partisan political lines. Yet after the 2008 election results, there is reason to expect considerable congressional attention to health reform. President (...) Obama has made health reform a priority of his administration, and several members of Congress have long been waiting for an opportunity to pursue health reform legislation. (shrink)

The Employee Retirement Income Security Act is a federal law regulating the administration of private employer-sponsored benefits including health benefits . In general, since the federal government has exercised its authority to preempt state regulation of the administration of private employer-sponsored health plans, states are blocked from enforcing laws interfering with ERISA. As many states pursue health care reform experiments, ERISA preemption becomes relevant as a potential limit on the scope and type of reforms states are able to enact. The (...) dominant trend in ERISA litigation has been to preempt state legislation and litigation interfering with the administration of private employer-sponsored health plans, making large-scale state health care reform initiatives difficult. The purpose of this paper is to examine the trajectory of judicial interpretation of ERISA and to discuss what opportunities exist to facilitate health care initiatives given the constraints of ERISA preemption. (shrink)

In recent years, scholars have begun to lay the groundwork to justify a distinct application of ethics to the field of public health. They have highlighted important features that differentiate public health ethics from bioethics, especially public health’s emphasis on population health rather than issues of individual health. Articulations of public health ethics also tend to emphasize the role of social justice compared to the predominance of autonomy in the bioethical literature. Now that the field of public health ethics is (...) developing a unique focus and a language of its own, including a code of ethics disseminated by the American Public Health Association, the future of public health ethics may well be global health ethics, focusing on issues of global justice. As public health ethics evolves from its nascent stage of reflection to a place of action and application in the national and global arenas, two interrelated developments will need to occur: public health professionals, including practitioners, policymakers, and scholars, will need a richer understanding of the ethical challenges practitioners face on a daily basis and scholars will need to develop useful tools that practitioners may employ for identifying and tackling these ethical challenges. (shrink)

Ethical challenges in public health can have a significant impact on the health of communities if they impede efficiencies and best practices. Competing needs for resources and a plurality of values can challenge public health policymakers and practitioners to make fair and effective decisions for their communities. In this paper, the authors offer an analytic framework designed to assist policymakers and practitioners in managing the ethical tensions they face in daily practice. Their framework is built upon the following set of (...) six considerations: determining population-level utility of the proposed action; demonstrating evidence of need and effectiveness of actions; establishing fairness of goals and proposed implementation strategies; ensuring accountability; and, assessing expected efficiencies and costs associated with the proposed action. Together, these considerations create a structured guide to assist decision-makers in identifying potential ethical challenges and in assessing the moral considerations that underlie public health practice - and possibly even, if the conditions are met, reduce the creation of ethical tension. Although the authors’empirical experiences provide the basis for the framework advanced here, their approach remains to be tested and evaluated by public health practitioners. (shrink)

The Michigan Department of Community Health stores almost 4 million dried blood spot specimens in the Michigan Neonatal Biobank. DBS are collected from newborns under a mandatory public health program to screen for serious conditions. At 24 to 36 hours of age, a few drops of blood are taken from the baby’s heel and placed on a filter paper card. The card is sent to the state public health laboratory for testing. After testing, MDCH retains the spots indefinitely for the (...) personal use of the patient and also, pursuant to a 2000 law, for possible research. (shrink)

The Michigan Department of Community Health stores almost 4 million dried blood spot specimens in the Michigan Neonatal Biobank. DBS are collected from newborns under a mandatory public health program to screen for serious conditions. At 24 to 36 hours of age, a few drops of blood are taken from the baby’s heel and placed on a filter paper card. The card is sent to the state public health laboratory for testing. After testing, MDCH retains the spots indefinitely for the (...) personal use of the patient and also, pursuant to a 2000 law, for possible research. (shrink)

Law is an essential tool for public health practice, and the use of a systematic legal framework can assist with preventing chronic diseases and addressing the growing epidemic of obesity.The action options available to government at the federal, state, local, and tribal levels and its partners can help make the population healthier by preventing obesity and decreasing the growing burden of associated chronic diseases such as cardiovascular disease and Type 2 diabetes. The Centers for Disease Control and Prevention uses the (...) four-part systematic legal framework commonly referred to as “public health legal preparedness” to demonstrate the essential role law can play for any public health issue. This paper uses the “laws and legal authorities” component of the framework and should be considered in combination with the competencies, coordination, and information-best practices components of the framework. (shrink)

Law is an essential tool for public health practice, and the use of a systematic legal framework can assist with preventing chronic diseases and addressing the growing epidemic of obesity.The action options available to government at the federal, state, local, and tribal levels and its partners can help make the population healthier by preventing obesity and decreasing the growing burden of associated chronic diseases such as cardiovascular disease and Type 2 diabetes. The Centers for Disease Control and Prevention uses the (...) four-part systematic legal framework commonly referred to as “public health legal preparedness” to demonstrate the essential role law can play for any public health issue. This paper uses the “laws and legal authorities” component of the framework and should be considered in combination with the competencies, coordination, and information-best practices components of the framework. (shrink)

This paper is the companion to “Assessment of Information on Public Health Law Best Practices for Obesity Prevention and Control,” and the fourth of four action papers produced as part of the National Summit on Legal Preparedness for Obesity Prevention and Control, convened June 2008 by the Centers for Disease Control and Prevention, the Robert Wood Johnson Foundation, and the American Society for Law, Medicine Ethics. The four action papers present options to address gaps in the four core elements of (...) public health legal preparedness as outlined in the relevant companion papers. The four core elements are: laws and legal authorities; legal competencies for public health professionals to apply those laws and authorities; coordination of law-based efforts across jurisdictions and sectors, and information on public health law best practices. (shrink)

This paper is the companion to “Assessment of Information on Public Health Law Best Practices for Obesity Prevention and Control,” and the fourth of four action papers produced as part of the National Summit on Legal Preparedness for Obesity Prevention and Control, convened June 2008 by the Centers for Disease Control and Prevention, the Robert Wood Johnson Foundation, and the American Society for Law, Medicine Ethics. The four action papers present options to address gaps in the four core elements of (...) public health legal preparedness as outlined in the relevant companion papers. The four core elements are: laws and legal authorities; legal competencies for public health professionals to apply those laws and authorities; coordination of law-based efforts across jurisdictions and sectors, and information on public health law best practices. (shrink)

This article introduces and defines the Health in All Policies concept and examines existing state legislation, with a focus on California. The article starts with an overview of HiAP and then analyzes the status of HiAP legislation, specifically addressing variations across states. Finally, the article describes California's HiAP approach and discusses how communities can apply a HiAP framework not only to improve health outcomes and advance health equity, but also to counteract existing laws and policies that contribute to health inequities.

Each of us has written about the importance of reframing the debate over public health paternalism. Our individual explorations of the many and varied paths forward from libertarian “nanny state” objections to the “new public health” have been intimately informed by collaboration. This article represents a summary of our current thinking — reflecting the ground gained through many fruitful exchanges and charting future collaborative efforts.Our starting point is that law is a vitally important determinant of population health, and the interplay (...) among law, social norms, cultural beliefs, health behaviors, and healthy living conditions is complex. Anti-paternalists’ efforts to limit the scope of public health law to controlling only the proximal determinants of infectious diseases are utterly unjustifiable in the face of so much preventable death, disability, and disparity. Equally important, the anti-paternalism push is deeply counter-majoritarian and undemocratic, threatening to disable communities from undertaking measures to improve their own well-being. (shrink)

The Flint water crisis demonstrates the importance of adequate legal preparedness in dealing with complicated legal arrangements and multiple statutory responsibilities. It also demonstrates the need for alternative accountability measures when public officials fail to protect the public's health and explores mechanisms for restoring community trust in governmental public health.

Despite evidence indicating that public health services are the most effective means of improving the population's health status, health care services receive the bulk of funding and political support. The recent passage of the Affordable Care Act, which focused on improving access to health care services through insurance reform, reflects the primacy of health care over public health. Although policymakers typically conceptualize health care and public health as two distinct systems, gains in health status are most effectively and cost-efficiently achieved (...) through their integration into a single health system. The Act does little to compel integration; however, there are numerous opportunities to encourage the coordination of public health and health care in the Act's implementation. (shrink)

Heath care and public health are typically conceptualized as separate, albeit overlapping, systems. Health care’s goal is the improvement of individual patient outcomes through the provision of medical services. In contrast, public health is devoted to improving health outcomes in the population as a whole through health promotion and disease prevention. Health care services receive the bulk of funding and political support, while public health is chronically starved of resources. In order to reduce morbidity and mortality, policymakers must shift their (...) attention to public health services and to the improved integration of health care and public health. In other words, health care and public health should be treated as two parts of a single integrated health system. Furthermore, in order to maximize improvements in health status, policymakers must consider the impact of all governmental policies on health. (shrink)

This volume includes Felix Noeggerath's dissertation from 1916, published here for the first time in a reliable critical edition. The dissertation represents a daring and far-reaching re-conceptualization of Kantian and neo-Kantian thought that consists in "critique of anti-rationalism," especially in the form of vitalism. Both Kant's and Hermann Cohen's philosophies can be experienced anew through the far-reaching optic that Noeggerath developed - an optic that he reiterates and develops into a comprehensive theory of art in a 1951 essay - republished (...) here, as well. The introduction by Hartwig Wiebebach provides an overview and incisive analysis of Noeggerath's philosophical program, while the afterword by Peter Fenves describes in detail the effect of Noeggerath's thought on Walter Benjamin's own attempts at a critique of anti-rationalism. Altogether, the volume provides a new point of access to the important legacy of neo-Kantian thought in the early twentieth century not only in terms of the systematic philosophy, but also in relation to the theory of art and the philosophy of modern science. (shrink)

In this essay, I claim that certain passages in Book IV of Benedict de Spinoza’s Ethics suggest a novel version of what is known as metaethical constructivism. The constructivist interpretation emerges in the course of attempting to resolve a tension between Spinoza’s apparent ethical egoism and some remarks he makes about the efficacy of collaborating with the right partners when attempting to promote our individual self-interest . Though Spinoza maintains that individuals necessarily aim to promote their self-interest, I argue that (...) Spinoza has an atypical conception of self that allows the interests of other people to be partially constitutive of one's own self-interest. In this way, Spinoza can account for the rationality of concern for the interests of others . This interpretation attributes to Spinoza a form of constructivism that differs in important ways from contemporary Humean and Kantian constructivisms and which can in principle be detached from Spinoza’s particular metaphysical commitments in order to yield a third general category of constructivist view . Though my treatment is necessarily brief, it is my hope that it can serve both to motivate a constructivist reading of Spinoza and, perhaps even more crucially, to suggest a Spinozistic variety of constructivism as a live theoretical option in metaethics. (shrink)

We suggest that in the particular context of medical education, ethics can be considered in a similar way to other kinds of knowledge that are categorised and shaped by academics in the context of wider society. Moreover, the study of medical ethics education is translational in a manner loosely analogous to the study of medical education as adjunct to translational medicine. Some have suggested there is merit in the idea that much as translational research attempts to connect the laboratory scientist's (...) work to its implications for patient care, translational ethics focuses on bringing ethics scholarship into the sphere of personal and public action. We distinguish the term ‘translational ethics’ (the study of ethics being translated between academy, classroom and clinic) from other prominent definitions in the bioethics literature. To do this, we build off a notion of knowledge translation that focuses on the nonlinear movement of information that comes to professionals through multiple competing sources. We suggest that this knowledge, and particularly knowledge about ethics, becomes embodied by the individual. It is through a reflective practice that internally embedded ethics knowledge might be modified, and this work might be best carried out with a moral community that maintains a sense of practical wisdom. Applying this translational approach to the study of medical ethics education can be both academically relevant and practically useful. This view of translation can help bridge the evident, multidirectional relationships between research, education and performance. It might also create further opportunities to develop medical ethics education theory. (shrink)

Hegemony is one of the most widely diffused concepts in the contemporary social sciences and humanities internationally, interpreted in a variety of ways in different disciplinary and national contexts. However, its contemporary relevance and conceptual coherence has recently been challenged by various theories of ‘posthegemony’. This article offers a critical assessment of this theoretical initiative. In the first part of the article, I distinguish between three main versions of posthegemony – temporal, foundational and expansive – characterized by different understandings of (...) the temporal and logical implications of hegemony. I then offer a critical assessment of the shared presuppositions of these theories, including their ‘pre-Gramscianism’, their indebtedness to Laclau and Mouffe’s formulation of hegemony, and their characterization of hegemony in terms compatible with modern theories of sovereignty. I conclude by arguing that the contradictions and oversights of the debate on posthegemony encourage us to undertake a reassessment of the real historical complexity of hegemonic politics and its different traditions of conceptualization. (shrink)