Public Health and Law: Past and Future Visions

Lawrence O. Gostin.Public Health Law: Power, Duty, Restraint. Berkeley: University of California Press, 2001. 491 pp. $65.00 cloth; $29.95 paper.

What is public health law and why does it matter? Answering those questions is harder than it may appear. The field of public health itself is wide ranging enough to make most general descriptions either incomplete or soporific. Public health law, the applied field of law that draws upon an equally extensive range of bodies of law that govern public health concerns, presents a similar, but distinct, challenge. This essay examines how public health has outgrown its traditional self-definition and considers what this means for the role of law applied to public health. In particular, the essay argues that conflating the goals of public health and law mistakenly undermines the independent value of each.

Defining Public Health

What is public health? Students in masters of public health programs often begin their studies with C.-E. A. Winslow's definition:

Public Health is the science and art of preventing disease, prolonging life, and promoting health and efficiency through organized community effort for the sanitation of the environment, the control of communicable infections, the education of the individual in personal hygiene, the organization of medical and nursing services for the early diagnosis and preventive treatment of disease, and the development of the social machinery to insure everyone a standard of living adequate for the maintenance of health, so organizing these benefits as to enable every citizen to realize his birthright of health and longevity. ¹

Those programs whose courses include less history rely on the influential 1988 Report of the Institute of Medicine (IOM), The Future of Public Health, which defined public health as "what we, as a society, do collectively to ensure the conditions in which people can be healthy." ²

The breadth of these definitions and the vast range of activities that could "ensure the conditions in which people can be healthy" suggest that public health encompasses any social policy that might contribute to better health. And visionary public health leaders have indeed encouraged efforts to increase employment, income, and housing, protect human rights, and reduce inequalities in political rights and income distribution, because such matters can significantly affect health. ³

People working in public health have always been loosely united by the goal of good health, but their motivations and methods vary widely. ⁴ In the nineteenth century, health was often thought to be a matter of personal morality, with illness the consequence of vice, improvidence, and squalor, most of which was conveniently concentrated among the poor. ⁵ Late-nineteenth-century industrialization, accompanied by an influx of immigrants, crowded urban tenements, and the rapid spread of disease, undermined the moral theory of health, although not completely. Public health as a field—apart from the local political structure—is thought to have begun when public officials, engineers, and a few insightful reformers noticed that things external to people—exposure to sewage, contaminated water, hazardous working conditions—caused disease. ⁶ This sparked social reform to make the environment healthy for people. Some reformers genuinely sought only to help people, while others argued, on economic grounds, that cleaning up the slums would improve the health of workers, and others sought to preserve the social order from an outbreak of festering class resentment among the working poor. ⁷

With the discovery that bacteria caused specific diseases, public health experts claimed a scientific basis for their recommendations, donning the mantel of professionals, much as physicians had done. ⁸ Their focus narrowed accordingly to emphasize infectious disease prevention, so that broader social and environmental factors affecting health, especially among the poorer classes, received less attention. World War II gave this new laboratory-based public health added importance to assist the war effort, but medicine and hospitals received the bulk of political support as well as financing in the postwar...