Public health law and ethics : a reader

651 Pages·2018·197.225 MB·English

by  Lawrence Ogalthorpe Gostin (editor), Lindsay F. Wiley (editor)

Public Health Law
and Ethics
A Reader
Third Edition
edited by
Lawrence O. Gostin
and Lindsay F. Wiley
university of california press
Public Health Law and Ethics

Public Health Law
and Ethics
A Reader
Third Edition
edited by
Lawrence O. Gostin
and Lindsay F. Wiley
university of california press
University of California Press, one of the most
distinguished university presses in the United States,
enriches lives around the world by advancing scholarship
in the humanities, social sciences, and natural sciences. Its
activities are supported by the UC Press Foundation and
by philanthropic contributions from individuals and
institutions. For more information, visit www.ucpress.edu.
University of California Press
Oakland, California
© 2018 by The Regents of the University of California
Library of Congress Cataloging-in-Publication Data
Names: Gostin, Lawrence O. (Lawrence Ogalthorpe),
editor. | Wiley, Lindsay F., editor.
Title: Public health law and ethics : a reader / edited by
Lawrence O. Gostin and Lindsay F. Wiley.
Description: Third edition. | Oakland, California :
University of California Press, [2018] | Includes
bibliographical references. |
Identifi ers: lccn 2018009381 (print) | lccn 2018012125
(ebook) | isbn 9780520967731 () | isbn
9780520294660 (pbk. : alk. paper)
Subjects: lcsh: Public health laws—United States. |
Public health—Moral and ethical aspects.
Classifi cation: lcc kf3775 (ebook) | lcc kf3775 .p83
2018 (print) | ddc 344.7304—dc23
LC record available at https://lccn.loc.gov/2018009381
Manufactured in the United States of America
25 24 23 22 21 20 19 18
10 9 8 7 6 5 4 3 2 1
Contents
List of Illustrations and Tables xiii
Preface to Third Edition xvii
part one. conceptual foundations of
public health law and ethics 1
1. Law and the Public’s Health: Mapping the Terrain 3
Geoff rey Rose, Sick Individuals and Sick Populations 4
Harry J. Heiman and Samantha Artiga, Beyond Health Care:
The Role of Social Determinants in Promoting Health and
Health Equity 11
Paula A. Braveman et al., Health Disparities and Health
Equity: The Issue Is Justice 17
Dan E. Beauchamp, Community: The Neglected Tradition of
Public Health 23
Mervyn Susser and Ezra Susser, Choosing a Future for
Epidemiology: 1. Eras and Paradigms 27
Mark A. Hall, The Scope and Limits of Public Health Law 34
Richard Allen Epstein, Let the Shoemaker Stick to His Last:
A Defense of the “Old” Public Health 37
2. Public Health Ethics: Science, Values, and the Regulation
of Risk 49
Ronald Bayer and Amy L. Fairchild, The Genesis of Public
Health Ethics 54
Daniel Callahan and Bruce Jennings, Ethics and Public Health:
Forging a Strong Relationship 58
Greg Marckmann et al., Putting Public Health Ethics into
Practice: A Systematic Framework 63
Michael D. Green et al., Reference Guide on Epidemiology 69
Paul Slovic, Perception of Risk 76
Stephen Breyer, Breaking the Vicious Cycle: Toward Eff ective
Risk Regulation 79
Joel A. Tickner et al., A Compass for Health: Rethinking
Precaution and Its Role in Science and Public Health 81
Ray Pawson et al., Known Knowns, Known Unknowns,
Unknown Unknowns: The Predicament of Evidence-Based
Policy 85
Maryland Court of Appeals, Grimes v. Kennedy
Institute, Inc. 90
part two. legal foundations
of public health 97
3. Public Health Powers and Duties 99
Commissioned by Offi ce of Governor Rick Snyder, State of
Michigan, Flint Water Advisory Task Force Final Report 100
Supreme Court of the United States, Deshaney v. Winnebago
County Department Services 108
Supreme Court of the United States, Castle Rock v. Gonzales 111
William J. Novak, Governance, Police, and American Liberal
Mythology 116
United States Court of Appeals for the Second Circuit, 23–34
94th St. Grocery Corp. v. New York City Board of Health 119
Supreme Court of the United States, National Federation of
Independent Business v. Sebelius 124
Erwin Chemerinsky et al., Corporate Federalism and Marijuana
Regulation 136
4. Public Health and the Protection of Individual Rights:
Due Process, Equal Protection, and the First Amendment 143
Supreme Court of the United States, Jacobson v. Massachusetts 146
Supreme Court of the United States, Lochner v. New York 153
Circuit Court, Northern District of California, Jew Ho v.
Williamson 155
Supreme Court of Appeals of West Virginia, Greene v. Edwards 160
Supreme Court of the United States, Whole Woman’s
Health v. Hellerstedt 164
Supreme Court of New York, New York v. New St. Mark’s Baths 169
Court of Appeals of California, First District, Walgreen Co. v.
City and Co. of San Francisco 174
Supreme Court of the United States, Agency for International
Development v. Alliance for Open Society International, Inc. 178
Supreme Court of the United States, Sorrell v. IMS Health Inc. 180
Supreme Court of the United States, Burwell v. Hobby Lobby
Stores, Inc. 184
Supreme Court of the United States, Obergefell v. Hodges 188
5. Public Health Governance: Administrative Agencies
and Local Governments 193
Eight Appellate District, County of Cuyahoga, Cleveland v. State 195
Paul A. Diller, Why Do Cities Innovate in Public Health?
Implications of Scale and Structure 199
New York Court of Appeals, New York Statewide Coalition
of Hispanic Chambers of Commerce v. New York City Dept.
of Health & Mental Hygiene 207
Supreme Court of the United States, King v. Burwell 215
Supreme Court of the United States, Massachusetts v. EPA 220
Institute of Medicine, Intersectoral Action on Health 226
part three. modes of legal intervention 231
6. Direct Regulation for the Public’s Health and Safety 233
Orly Lobel, The Renew Deal: The Fall of Regulation and
the Rise of Governance in Contemporary Legal Thought 235
Rena Steinzor, The Case for Abolishing Centralized White
House Regulatory Review 240
Matthew Wansley, Cost-Benefi t Analysis as a Commitment Device 244
United States Court of Appeals for the First Circuit, Philip
Morris v. Reilly 248
Cass R. Sunstein and Richard H. Thaler, Libertarianism
Paternalism Is Not an Oxymoron 252
Alexia Brunet Marks, A New Governance Recipe for
Food Safety 257
Lisa L. Sharma et al., The Food Industry and Self-Regulation:
The Standards to Promote Success and to Avoid Public
Health Failures 261
Katherine Beckett, The Uses and Abuses of Police Discretion:
Toward Harm Reduction Policing 267
7. Tort Liability as Indirect Regulation 275
Wendy E. Parmet and Richard A. Daynard, The New Public
Health Litigation 277
Supreme Court of the United States, Daubert v. Merrell
Dow Pharmaceuticals, Inc. 282
Dorit Rubenstein Reiss, Compensating the Victims of
Failure to Vaccinate: What Are the Options? 286
United States Court of Appeals for the Fifth Circuit, Borel v.
Fibreboard Paper Products Corp. 290
Catherine T. Struve, The FDA and the Tort System: Postmarketing
Surveillance, Compensation, and the Role of Litigation 295
United States Court of Appeals for the Second Circuit,
Pelman v. McDonald’s Corp. 297
United States District Court for the Northern District of
California, Gitson v. Trader Joe’s Co. 300
Lainie Rutkow and Stephen P. Teret, The Potential for State
Attorneys General to Promote the Public’s Health: Theory,
Evidence, and Practice 303
Supreme Court of Rhode Island, State of Rhode Island v.
Lead Industries Association 306
United States Court of Appeals for the Second Circuit,
Purdue Pharma v. Kentucky 309
United States Court of Appeals for the District of Columbia
Circuit, United States v. Philip Morris USA Inc. 312
United States Court of Appeals for the Second Circuit, City of
New York v. Beretta U.S.A. Corp. 318
8. Taxation, Spending, and the Social Safety Net 323
Bruce G. Carruthers, The Semantics of Sin Tax: Politics,
Morality, and Fiscal Imposition 324
Jennifer L. Pomeranz, Taxing Food and Beverage Products:
A Public Health Perspective and a New Strategy Prevention 328
Trust for America’s Health, A Funding Crisis for Public Health
and Safety: A State-by-State Look at Public Health Funding
and Key Health Facts 334
Mathew Swinburne, The 2014 Farm Bill and SNAP: Improving
the Diets of Low-Income Americans? 339
Sara Rosenbaum, Hospitals as Community Hubs: Integrating
Community Benefi t Spending, Community Health Needs
Assessment, and Community Health Improvement 345
Nicole Huberfeld and Jessica L. Roberts, Health Care and
the Myth of Self-Reliance 351
Brietta R. Clark, Medicaid Access, Rate Setting, and Payment
Suits: How the Obama Administration Is Undermining Its
Own Health Reform Goals 356
Supreme Court of the United States, Armstrong v. Exceptional
Child Center 358
part four. public health law in context 365
9. Surveillance and Public Health Research: Privacy,
Security, and Confi dentiality of Personal Health
Information 367
Michael A. Stoto, Public Health Surveillance in the Twenty-First
Century: Achieving Population Health Goals While Protecting
Individuals’ Privacy and Confi dentiality 368
Institute of Medicine, The Value, Importance, and Oversight
of Health Research 373
Supreme Court of the United States, Whalen v. Roe 375
Wendy K. Mariner, Reconsidering Constitutional Protection
for Health Information Privacy 379
U.S. Department of Health and Human Services Offi ce for
Civil Rights, Privacy of Individually Identifi able Health
Information (The HIPAA Privacy Rule) 385
Nicolas Terry, Protecting Patient Privacy in the Age of Big Data 388