Law in the Name of Public Health: Ignoring Freedoms and Entitlements

Document Type

Book Chapter

Publication Date

2007

Editor(s)

Clare Dalton

ISBN

9780837714004

Publisher

William S. Hein & Co.

Language

en-US

Abstract

In this chapter, I sketch an argument that the focus on limiting individual liberty to protect public health misconceives the constitutional issues at stake and often conflates legal principles with political theory or policy preferences. The argument begins with the definition (or definitions) of public health, concluding that it is too broad and malleable a concept to serve as sufficient justification for wholesale restrictions on a wide range of different liberty and privacy interests. Fortunately, however, limitations on liberty are not the only way to protect public health and safety. Laws in two other categories—those setting standards for producing products and conducting business, and those providing information and services to the public—are both more representative of actual public health programs and more likely to prevent illness, injury and death than laws in the first category targeting individual behavior.

It is in these second and third categories of laws that public health can, and I believe should, offer a justification for government action. More importantly, this can be done without interfering with personal liberty or privacy and without having to reinvent constitutional limitations on liberty. This conclusion is supported by the parallels between the three categories of public health laws in the United States and the three types of obligations assumed by States parties to "respect, protect and fulfill" the human right to health in the International Bill of Rights. The human right to health framework in international law offers a reminder that health often depends on positive government actions, and that individual human rights must not and need not be violated in order to safeguard an entire population.

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