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Public Health Law and Ethics

A Reader, Revised and Updated Second Edition

Lawrence O. Gostin (Editor)


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ISBN: 9780520946057
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Now revised and expanded to cover today’s most pressing health threats, Public Health Law and Ethics probes the legal and ethical issues at the heart of public health through an incisive selection of government reports, scholarly articles, and relevant court cases. Companion to the internationally acclaimed text Public Health Law: Power, Duty, Restraint, this reader can also be used as a stand-alone resource for students, practitioners, scholars,and teachers. It encompasses global issues that have changed the shape of public health in recent years including anthrax, SARS, pandemic flu, biosecurity, emergency preparedness, and the transition from infectious to chronic diseases caused by lifestyle changes in eating and physical activity. In addition to covering these new arenas, it includes discussion of classic legal and ethical tensions inherent to public health practice, such as how best to balance the police power of the state with individual autonomy.
List of Illustrations
List of Tables
List of Boxes

Foreword by Daniel M. Fox, Samuel L. Milbank, and Carmen Hooker Odom
Conventions Used in This Book

Introduction: Mapping the Issues

Part One. Foundations of Public Health Law and Ethics
1. The Public’s Health
SOURCES: Ali H. Mokdad et al., Actual Causes of Death in the United States, 2 / XX • Geoffrey Rose, Sick Individuals and Sick Populations / XX • Dan Beauchamp, Community: The Neglected Tradition of Public Health / XX • Norman Daniels, Bruce Kennedy, and Ichiro Kawachi, Justice Is Good for Our Health / XX • Lawrence O. Gostin and Madison Powers, What Does Social Justice Require for the Public’s Health? Public Health Ethics and Policy Imperatives / XX • Lawrence O. Gostin, Jo Ivey Boufford, and Rose Marie Martinez, The Future of the Public’s Health: Vision, Values, and Strategies / XX

2. Public Health Ethics
SOURCES: The National Commission for the Protection of Human Subjects of Biomedical and Behavior Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research / XX • Ronald Bayer and Amy L. Fairchild, The Genesis of Public Health Ethics / XX • James F. Childress et al., Public Health Ethics: Mapping the Terrain / XX • Daniel Callahan and Bruce Jennings, Ethics and Public Health: Forging a Strong Relationship / XX • Supreme Court of Vermont, Benning v. State / XX • Marian Moser Jones and Ronald Bayer, Paternalism and Its Discontents: Motorcycle Helmet Laws, Libertarian Values, and Public Health / XX • Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation / XX • Richard Wilson and E.{ths}A.{ths}C. Crouch, Risk Assessment and Comparisons: An Introduction / XX

Part Two. The Law and the Public’s Health

3. Public Health Duties and Powers
SOURCES: Supreme Court of the United States, DeShaney v. Winnebago County Department of Social Services / XX • Supreme Court of the United States, Castle Rock v. Gonzales / XX • William J. Novak, Governance, Police, and American Liberal Mythology / XX • Supreme Court of the United States, South Dakota v. Dole / XX • Supreme Court of the United States, United States v. Lopez / XX • Supreme Court of the United States, Gonzales v. Raich / XX • Supreme Court of the United States, New York v. United States / XX

4. Public Health and the Protection of Individual Rights
SOURCES: Supreme Court of the United States, Jacobson v. Massachusetts / XX • Circuit Court, Northern District of California, Jew Ho v. Williamson / XX • Supreme Court of the United States, City of Cleburne v. Cleburne Living Center / XX • Bureau of National Affairs, Second Amendment Shields Individual Rights, Is Violated by D.C.’s Prohibition of Handguns / XX • Supreme Court of Appeals of West Virginia, Greene v. Edwards / XX

5. Public Health Governance: Direct Regulation for the Public’s Health and Safety
SOURCES: Supreme Court of the United States, Gonzales v. Oregon / XX • Supreme Court of the United States, Food and Drug Administration v. Brown & Williamson Tobacco Corp. / XX • New York Court of Appeals, Boreali v. Axelrod / XX • Supreme Court of the United States, Massachusetts v. EPA / XX • Lawrence O. Gostin, The Deregulatory State / XX

6. Tort Law and the Public’s Health: Indirect Regulation
SOURCES: Stephen P. Teret, Litigating for the Public Health / XX • Wendy E. Parmet and Richard A. Daynard, The New Public Health Litigation / XX • Tom Christoffel and Stephen P. Teret, Epidemiology and the Law: Courts and Confidence Intervals / XX • Supreme Court of the United States, Daubert v. Merrell Dow Pharmaceuticals, Inc. / XX • Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom / XX • Jon S. Vernick, Lainie Rutkow, and Stephen P. Teret, Public Health Benefits of Recent Litigation against the Tobacco Industry / XX • Court of Appeals for the Second Circuit, Pelman v. McDonald’s Corp. / XX • Lawrence O. Gostin, The Deregulatory Effects of Preempting Tort Litigation / XX

7. Global Health Law: Health in a Global Community
SOURCES: Lawrence O. Gostin, Why Rich Countries Should Care about the World’s Least Healthy People / XX • Laurie Garrett, The Challenge of Global Health / XX • David P. Fidler and Lawrence O. Gostin, The New International Health Regulations: An Historic Development for International Law and Public Health / XX •Allyn L. Taylor and Douglas W. Bettcher, WHO Framework Convention on Tobacco Control: A Global “Good” for Public Health / XX • Jonathan M. Mann et al., Health and Human Rights / XX • United Nations Committee on Economic, Social, and Cultural Rights, The Right to the Highest Attainable Standard of Health / XX • M. Gregg Bloche and Elizabeth R. Jungman, Health Policy and the WTO / XX • Lawrence O. Gostin, Meeting the Survival Needs of the World’s Least Healthy People: A Proposed Model for Global Health Governance / XX

Part Three. Public Health and Civil Liberties in Conflict

8. Surveillance and Public Health Research: Privacy and the “Right to Know”
SOURCES: Ronald Bayer and Amy L. Fairchild, Public Health: Surveillance and Privacy / XX •Amy L. Fairchild, Ronald Bayer, and James Colgrove, Panoptic Visions and Stubborn Realities in a New Era of Privacy / XX • Sandra Roush et al., Mandatory Reporting of Diseases and Conditions by Health Care Providers and Laboratories / XX • Ronald Bayer and Kathleen E. Toomey, HIV Prevention and the Two Faces of Partner Notification / XX • James G. Hodge Jr., An Enhanced Approach to Distinguishing Public Health Practice from Human Subjects Research / XX • David R. Buchanan and Franklin G. Miller, Justice and Fairness in the Kennedy Krieger Institute Lead Paint Study: The Ethics of Public Health Research on Less Expensive, Less Effective Interventions / XX • Supreme Court of the United States, Whalen v. Roe / XX • Centers for Disease Control and Prevention and Department of Health and Human Services, HIPAA Privacy Rule and Public Health: Guidance from CDC and the U.S. Department for Health and Human Services / XX • Lawrence O. Gostin, James G. Hodge Jr., and Ronald O. Valdiserri, Informational Privacy and the Public’s Health: The Model State Public Health Privacy Act / XX

9. Health, Communication, and Behavior
SOURCES: Sonya Grier and Carol A. Bryant, Social Marketing in Public Health / XX • Ruth R. Faden, Ethical Issues in Government-Sponsored Public Health Campaigns / XX • Supreme Court of the United States, 44 Liquormart, Inc. v. Rhode Island / XX • Supreme Court of the United States, Lorillard Tobacco Co. v. Reilly / XX • Court of Appeals for the Second Circuit, International Dairy Foods Association v. Amestoy / XX • United States District Court for the Southern District of New York, New York State Restaurant Association v. New York City Board of Health / XX

10. Medical Countermeasures for Epidemic Disease: Bodily Integrity
SOURCES: Garrett Hardin, The Tragedy of the Commons / XX • Supreme Court of the United States, Zucht v. King / XX • Supreme Court of Mississippi, Brown v. Stone / XX • United States District Court for the Eastern District of Arkansas, Boone v. Boozman / XX • James Colgrove, Expansion and Backlash: Vaccination at the Turn of the Twenty-first Century / XX • Ruth R. Faden, Nancy Kass, and Madison Powers, Warrants for Screening Programs: Public Health, Legal and Ethical Frameworks / XX • Supreme Court of the United States, Ferguson v. City of Charleston / XX • Ronald Bayer and David Wilkinson, Directly Observed Therapy for Tuberculosis: History of an Idea / XX • Supreme Court of Wisconsin, In re Washington / XX • James Hodge et al., Expedited Partner Therapy for Sexually Transmitted Diseases: Assessing the Legal Environment / XX

11. Public Health Strategies for Epidemic Disease: Association, Travel, and Liberty
SOURCES: J.{ths}M. Eager, The Early History of Quarantine: Origin of Sanitary Measures Directed against Yellow Fever / XX • Supreme Court of South Carolina, Kirk v. Wyman / XX • Supreme Court of Ohio, Ex parte Company / XX • Supreme Court, Queens County, City of New York v. Antoinette R. / XX • Lawrence O. Gostin, Ronald Bayer, and Amy L. Fairchild, Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome: Implications for the Control of Severe Infectious Disease Threats / XX • Howard Markel, Lawrence O. Gostin, and David P. Fidler, Extensively Drug-Resistant Tuberculosis: An Isolation Order, Public Health Powers, and a Global Crisis / XX • Ezekiel J. Emanuel and Alan Wertheimer, Who Should Get Influenza Vaccine When Not All Can? / XX • Lawrence O. Gostin, Public Health Law in an Age of Terrorism: Rethinking Individual Rights and Common Goods / XX • George J. Annas, Bioterrorism, Public Health, and Human Rights / XX

12. Economic Liberty and the Pursuit of Public Health
SOURCES: Supreme Court of the United States, Dent v. West Virginia / XX • Supreme Court of the United States, Camara v. Municipal Court of the City and County of San Francisco / XX • United States District Court for the Southern District of New York, Players, Inc. v. City of New York / XX • Supreme Court of New York, New York v. New St. Mark’s Baths / XX • Supreme Court of the United States, Lochner v. New York / XX • Supreme Court of the United States, Lucas v. South Carolina Coastal Council / XX • Supreme Court of the United States, Kelo v. City of New London / XX

Part Four. The Future of the Public’s Health

13. Concluding Reflections on the Field: Case Studies on Biosecurity, Genomics, and Obesity
SOURCES: Donald A. Henderson, The Looming Threat of Bioterrorism / XX • David L. Heymann, The Evolving Infectious Disease Threat: Implications for National and Global Security / XX • Halla Thorsteinsdóttir et al., Genomics—A Global Public Good? / XX • Wendy C. Perdue, Obesity, Poverty, and the Built Environment: Challenges and Opportunity / XX

Selected Bibliography

Table of Cases
About the Author
Lawrence O. Gostin is Associate Dean and the Linda D. and Timothy J. O'Neill Professor of Global Health Law at the Georgetown University Law Center, where he directs the O'Neill Institute for National and Global Health Law. Gostin is also Professor of Public Health at the Johns Hopkins University and Director of the Center for Law and the Public's Health and is Visiting Professor of Public Health and Research Fellow at Oxford University.
“Thought-provoking essays.”—Ross Silverman Journal Of Legal Medicine

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