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by Lawrence O. Gostin
University of California Press, 2002
Review by Albert D. Spalding, JD on Feb 26th 2003

Public Health Law and Ethics

Over $1.4 trillion, or 14 percent of its gross domestic product (GDP), was spent on health care in the United States in 2001.   This includes billions in transfer payments through Medicare and Medicaid programs.  Certainly health care is a major priority in the U.S. and elsewhere, and the parameters and operationalization of health policies affect more people, more directly, than any other industry.

Health care policy is not so much articulated or legislated, though, as it is molded and formed by the dynamics and dialectics of various stimuli (changing cultural expectations, scientific and technological advances, etc.) and limitations (budgetary, ethical, political, individual choice, etc.). Public Health Law and Ethics: A Reader captures the discursive components of those tensions and processes: government reports, scholarly articles, and court cases that address the ethical, legal, and political issues in the theory and practice of public health.  This work, compiled and edited by Georgetown University law professor Lawrence O. Gostin, is a sequel and companion text to his 2000 publication, Public Health:  Power, Duty, Restraint.

This Reader generally consists of three major parts (ethical, legal, and social), plus an epilogue that addresses the future of public health.  The ethics section includes, along with a few legal cases, of a collection of scholarly articles and opinion pieces, organized around four perspectives:  population-based views of public health; communitarian approaches, human rights analyses, and rationalistic (including cost/benefit) perspectives.  If there is a common theme, it is the underlying presumption that improvements to the health of the largest majority of people ought to drive, or at least inform, health-related policy decisions.  These essays are not monolithic (Gostin includes a delightful excerpt from a 1850 report by the Sanitary Commission of Massachusetts, wherein the writer questions whether squalid and disease-ridden conditions may be allowed on private property as a matter of property rights), but they do tend to revolve around utilitarian norms and communal ways of thinking about ethics.

The law section, as might be expected, is largely comprised of court opinions issued by state and federal appellate and supreme courts, along with excerpts from a few law journal articles.  The court opinion illustrate the judiciaries' rationale as they sort out and rule on the standards of care applicable to public health agencies and professional health caregivers, as well as the corresponding duties and reasonable expectations of patients.  A few special topics, such as the use of junk science in the courtroom, are also included.

Many ethics issues -- such as the striking of a proper balance between public health research and recordkeeping, on the one hand, and privacy rights on the other -- cannot be resolved without resorting to political theory.  Gostin highlights these types of issues in a separate section of his Reader that addresses society-versus-the-individual concerns that arise in connection with public health education, immunization, screening, quarantines, health-related crimes, and the like.  And he includes similar issues, such as bioterrorism and genetic intervention, as part of his closing, future-oriented chapter of this work.

Public health-related policies are involved and reflected in public finance, in legislation, in litigation, in regulation and deregulation, and in governmental efforts to persuade people to change their private behavior. Public health can also be understood in narrow terms (patient by patient, decision by decision), or in broad terms (responding to an urge to attempt the optimization of society's health).  The latter view is articulated by the Institute of Medicine's definition: "Public health is what we, as a society, do collectively to assure the conditions for people to be healthy."  Gostin's Reader captures, but does not resolve, the tensions between these views.

Some readers might expect this type of anthology to address specific value-related ethical matters, such as public health policies regarding therapeutic abortions, infanticide, euthanasia, cloning, and the use of human embryos (and stem cells) in medical research.  Gostin offers no discussion of these issues.  Similarly, alternative methods of financing health care (medical savings accounts, flexible spending accounts, health reimbursement arrangements, etc.) are not addressed. Instead, Public Health Law and Ethics:  A Reader offers the reader a manageable mainstream of public policy considerations, without approaching the more theological, or at least ideological, morality-related aspects of public health care discourse.

Graduate students (including those studying ethics, law, and medicine), for whom this Reader appears to have been primarily intended, will discover within it a helpfully comprehensive explanation of most of the dynamics that inform today's public health debates. Gostin's own introductions to the text, and to each chapter, reflect a high level of familiarity, and scholarly adeptness, with these issues.  The text's supplemental website at http://www.publichealthlaw.net/reader provides updates to the cases in included in the Reader (and additional, more recent rulings) as well as other information. Health care professionals and administrators, lawyers who are new to health care law, and political scientists, will also find this Reader to be an effective tool in gaining access to what can be an overwhelming body of legal and bioethical knowledge.
 
  

© 2002 Albert D. Spalding
 

Albert D. Spalding, JD, is an associate professor at Wayne State University School of Business Administration.  He teaches legal studies topics, including a course in Health Care Law and Ethics.