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date: 04 December 2020

Public Health Programs and Policies: Ethical Justifications

Abstract and Keywords

Public health policies sometimes make demands on individuals who do not stand to benefit from the policies, and they sometimes interfere with liberty even when they do benefit the individuals in question. In such instances, a moral justification for a public health intervention is required. This chapter sets forth five justifications for public health interventions: (1) overall benefit, (2) collective action and efficiency, (3) fairness in the distribution of burdens, (4) prevention of harm (the harm principle), and (5) paternalism. The chapter discusses each justification in turn, posits that often more than one justification applies to a given policy, and argues against frameworks that place disproportionate attention on conflicts between liberty and health.

Keywords: public health policies, liberty, collective action, efficiency, fairness, harm principle, paternalism

(p. 21) Introduction

Public health as a social institution draws its foundational moral legitimacy from the essential and direct role that health plays in human flourishing, whether that role is ultimately understood in terms of maximizing health or of promoting health in order to advance a broad conception of social justice. As powerful as this general justification is, however, it is often too broad to provide sufficient moral warrant for specific public health policies and programs. In this chapter, we put forward five justifications for public health interventions, each of which speaks to a different set of reasons why any particular policy or program might be ethically appropriate: (1) overall benefit, (2) collective action and efficiency, (3) fairness in the distribution of burdens, (4) prevention of harm (the harm principle), and (5) paternalism.

Two observations are worth making at the outset. First, public health policies are rarely defended by only one justification. Usually a mixed set of justifications can plausibly be provided. For example, tax policies intended to decrease cigarette consumption can be defended both by appeal to paternalism and by appeal to reducing the harms of second-hand smoke to children in the home and in automobiles. Second, the impact of a public health policy is often not uniform across all the individuals affected by the policy, and thus different justifications are sometimes put forward specific to these different people. This complexity is unavoidable, since it results from the nature of public health. The focus of public health is population health, but populations are rarely internally uniform with regard to all features that are morally relevant to any particular (p. 22) policy. Some people may stand to benefit from the policy, while others may not. Moreover, in line with concerns about democratic legitimacy and state overreaching, some members of the population may support the policy, while others may object. Consider, for example, a New York City policy prohibiting restaurants from serving sugar-sweetened beverages in containers holding over sixteen ounces, which was eventually struck down by the courts. Public opinion polling suggests that while more New Yorkers opposed the policy than supported it, the level of opposition varied from one borough of the city to another (Grynbaum and Connelly, 2012).

The first three justifications for public health policies—overall benefit, collective action and efficiency, and fairness—speak specifically to the context in which some members of the affected population do not directly benefit from a policy or object to it. The next two justifications appeal to the significance of harm, both to others and to oneself. They apply more specifically to traditional concerns about balancing respect for liberty with advancing health, and are more prevalent in the public health ethics literature than the previous three. In the fourth justification, the argument is from a relatively uncontroversial Millian harm principle (Mill and Gray, 1998), while the fifth justification is from somewhat more tendentious paternalistic principles.

Depending on the specifics of a public health policy, any number of these justifications may be applicable, and they are generally used to best effect in combination. The chapter closes with a look at the limits of frameworks that focus disproportionately on liberty considerations and at the importance of considering the range of possible moral justifications in analyzing public health policies.

Overall Benefit

Ultimately, all people benefit from public health interventions, and from having trusted regulatory agencies such as the US Centers for Disease Control and Prevention (CDC) or the Food and Drug Administration (FDA) make decisions about such interventions and their reach. All things considered, having public health regulation is better than not having it. Public health decisions made on the basis of overall statistics and demographic trends are ultimately better for each one of us, even if particular interventions may not directly benefit some of us. Thus, the task of public health ethics is not necessarily to justify each particular intervention directly. Rather, public health interventions in general, as long as they stay within certain pre-established parameters, can be justified in the same way a market economy, the institution of private property, or other similarly broad and useful conventions that involve some coercive action but also enable individuals to access greater benefits can be justified: when properly regulated and managed, their existence is by and large better than their absence for everyone.

So structured, the justification for particular public health interventions, requirements, or restrictions is derivative of or parasitic on a higher-level justification. This argumentative strategy has a lot of appeal, particularly as a way of justifying the existence of (p. 23) regulatory government agencies such as the FDA or CDC. However, it is ultimately insufficient on its own and needs to be supplemented by other kinds of ethical arguments, since it does not provide a basis for the parameters themselves, or for ethical oversight or scrutiny with regard to the particular decisions such agencies take. This is similar to the case of the free market, in which it is by and large preferable to have free markets than to not have them, but this does not render specific aspects of the operations of markets immune to criticism and reform from an ethical point of view.

Collective Action and Efficiency

A related justification views health as a public good, the pursuit of which is not possible without ground rules for coordinated action and near-universal participation. Thus, public health is viewed as having the structure of a coordination or collective efficiency problem. If one person (or at least, a sufficient number of such persons) decides to go when the traffic light is red and stop when the traffic light is green, it does not matter that everyone else is following the rules: this person will disrupt the smooth functioning of the system, with potentially dangerous results. Similarly, if one person (or a sufficient critical mass of such persons) decides not to abide by a public health regulation because the regulation does not directly benefit that person, or because the person otherwise objects, the ramifications will likely be felt by others in her or his environment and beyond. A classic example is when an outbreak of measles can be traced to the intentional undervaccination of children by their parents (Omer et al., 2009; Sugerman et al., 2010; Thompson et al., 2007). Everybody has to participate because, failing their involvement, neither they nor anyone else can reap the benefit of a healthy society.

In many public health contexts, the only feasible or acceptably efficient way to implement a policy affects the entire population, leaving no option, or only very burdensome options, open to individual noncooperation. Perhaps the most celebrated such example is water fluoridation, but all safety regulations affecting the food and drug supply and consumer products share this character, as do many environmental and occupational health standards. Here, collective efficiency considerations loom large. Although people want healthy environments and products, individuals are simply not positioned to make independent decisions about the impact on health and safety of their environment and of the hundreds of thousands of products available in the modern marketplace. Ceding this function to government institutions staffed with health experts is prudent and essential to the general welfare and social justice in the same respect as ceding protection of our interests in personal physical security to government institutions staffed with law enforcement and national defense experts is prudent and essential to the general welfare (Mill and Gray, 1998).

Collective efficiency arguments rely on claims about the sheer number and technical complexity of the decisions that need to be made to protect health in the environment and in the marketplace, as well as the indivisible character of responses to some health (p. 24) threats. These arguments are buttressed by claims about the cognitive limitations and bounded rationality of individual human decision-makers, and by the disproportionate political power of corporate interests and the practices they use to manipulate and exploit our cognitive weaknesses against our health interests (Ubel, 1999).

Fairness in the Distribution of Burdens

Yet another appeal that can be used to defend certain public health interventions that impose unequal burdens on different members of a population relies on considerations of fairness. The basic premise of this line of argument would be that burdens should be roughly equivalent for everyone. This view justifies taxing different income brackets at different rates. The same could be said for certain public health “burdens,” understood as both the burdens of disease and disability and the burdens of public health interventions. Based on considerations such as a particular group’s likelihood to contract a certain disease or overall health status, other parts of the population can legitimately be asked to “contribute,” as it were, in order to make the distribution of disease burdens more equitable. For example, part of the rationale for requiring child immunization prior to enrollment in school is that this is a way to ensure that low-income children, who are generally less healthy than other children, have access to the needed vaccines (Feudtner and Marcuse, 2001; Orenstein and Hinman, 1999).

Perhaps a more pertinent example is Japan’s seasonal influenza immunization policy between 1962 and 1994, where children were immunized against influenza explicitly in order to protect the elderly, for whom contracting seasonal flu is more likely to be fatal, and immunization more likely to be burdensome (Reichert et al., 2001; Sugaya, 2014). Yet another example of public health interventions that appear to be guided by this justification is rubella vaccination of children for the sake of pregnant women and their offspring (Marin et al., 2010; Miller et al., 1997). This reasoning can help explain why individuals are sometimes asked to bear public health burdens that do not directly benefit them. However, as with the tax example, the question of how far we can go in redistributing health-related burdens will likely continue to plague any proponent of this justificatory strategy. Moreover, questions about the plausibility of viewing health-related burdens as subject to distribution in this manner may also arise.

The Harm Principle

It is likely that no classic philosophical work is cited more often in the public health ethics literature than John Stuart Mill’s essay “On Liberty” (Mill and Gray, 1998). In that essay, Mill defends what has come to be called the “harm principle,” which has been (p. 25) interpreted as holding that the only justification for interfering with the liberty of an individual, against his or her will, is to prevent harm to others. The harm principle is relied upon to justify various infectious disease control interventions, including quarantine, isolation, and compulsory treatment. In liberal democracies, the harm principle is often viewed as the most compelling justification for public health policies that interfere with individual liberty. For example, a prominent view in the United States is that it was not until the public became persuaded of the harmful effects of second-hand smoke that the first significant intrusion into smoking practices—the banning of smoking in public places—became politically feasible. Perhaps because of the principle’s broad persuasiveness, it is not uncommon to see appeals made about harm to others in less than obvious contexts. Defenders of compulsory motorcycle helmet laws, for example, argued that the serious head injuries sustained by unprotected cyclists diverted emergency room personnel and resources, thus harming other patients (Jones and Bayer, 2007).

The harm principle has been interpreted to include credible threats of significant economic harm to others as well as physical harm. Returning again to smoking policy, various restrictions on the behavior of smokers have been justified by appeal to the financial burden on the health care system of caring for smoking-related illnesses. The claim that smokers impose economic harms on the rest of us, and thus that reducing smoking saves society money, is empirically questionable. Within the health care system there may be some cost savings, but people who would have died in late middle age of smoking-related illnesses are now likely to live into their seventies and beyond, with ailments that will continue to impose costs on the health care system—perhaps exceeding the costs of what would have been their smoking-related causes of death. Similarly, costs to the social security system increase (because nonsmokers live longer), while revenues from taxes on smoking products decrease (Cohen, Neumann, and Weinstein, 2008; Russell, 1986, 2009).

As with all such principles, questions remain about its specification. How significant must the threat of harm be, with regard to both its likelihood and its magnitude? Consider, for example, the debate in the United States about the appropriateness and necessity of isolating asymptomatic health professionals returning from providing care to Ebola patients in West Africa. Are physical harms to the health of others to be weighted more than economic harms or setbacks to other interests? Whether interpreted narrowly or broadly, there are limits to the public health cases that can plausibly be addressed by the harm principle. Moreover, in the context of commitments to social justice and general welfare, and the other justifications described above, too exclusive a focus on the harm principle can undermine otherwise justifiable government mandates and regulation. It is undeniable that individuals have much broader and more multidimensional interests than narrowly self-directed physical ones, and in that sense it is not unreasonable to have a fairly expansive understanding of “harm” in a public health context. However, adherence to the—admittedly somewhat artificial—heuristic of construing individuals’ interests as exclusively their self-regarding ones for purposes of determining what sacrifices they may be asked to make is an important way of ensuring checks on potential abuses.

(p. 26) Because the impact of J. S. Mill on public health ethics cannot be overstated, it is important to recognize that Mill does not hold that in the formulation of public policies all liberty interests enjoy an equal presumption in their favor. Mill draws a distinction between interests that are so important that they are immune from state interference, interests that enjoy a presumption in favor of liberty, and interests that enjoy no such presumption. It is presumably the second kind of liberty interest where the harm principle figures prominently (Powers, Faden, and Saghai, 2012). Moreover, what many understand to be core to Mill’s view—that individuals are generally best positioned to know what is in their own best interests—is increasingly being challenged (Conly, 2014; Sunstein, 2012).

Paternalism

Not surprisingly, paternalism—understood classically as interfering with the liberty of action of persons, against their will, to protect or promote their welfare—is as controversial in public health policy as the harm principle is uncontroversial (Dworkin, 2005; Feinberg, 1989). Few public health interventions are justified exclusively or even primarily on unmediated, classic paternalistic grounds, although many more public health programs may have paternalistic effects. By contrast, other classes of arguments that are sometimes described as paternalistic, including soft paternalism, weak paternalism, and libertarian paternalism, are evoked more frequently.

Soft and weak paternalism are usually interpreted as interchangeable, though they have sometimes been taken to denote different concepts (Dworkin, 2005). A common interpretation defines this kind of paternalism as interference with choices that are compromised with regard to voluntariness or autonomy. Though people might voice or hold preferences different from the ones that is sought for them, their preferences are not entitled to robust respect if they are formed under conditions that significantly compromise their autonomy or voluntariness, such as cognitive disability or immaturity and, in very limited cases, ignorance or false beliefs. Ignorance and false beliefs are not usually sufficient to make a preference subject to interference, and they generally require being supplemented by stronger considerations such as age, cognitive disability, or harm to others (e.g., one’s child). In the normal course of things, we all have at least some preferences based on ignorance and false beliefs that proponents of soft paternalism nonetheless do not think can legitimately be interfered with, unless there is some compelling reason to impute impairment of rationality beyond, say, weakness of will. Adaptive preferences are also considered compromised with regard to autonomy: individuals sometimes modify their preferences in order to be able to adapt to difficult, unjust, or undesirable circumstances. The real significance of adaptive preferences is when they are formed in tragic circumstances of poverty and discrimination, where individuals convince themselves that they do not want the benefits of health, education, equal treatment, and so on because of the excruciating difficulty of continuing to prefer what (p. 27) is out of one’s reach. Thus, individuals modify their preferences to their circumstances. In such cases, one arguably cannot take those preferences to indicate underlying values or decisions that ought not be interfered with. Such preferences also do not have the same standing as preferences formed under just or normal background conditions, and are therefore viewed as subject to interference.

It is important to note that in all these cases, justified interference would be based on a finding of significant compromise of autonomy or rationality in the formation or continued holding of particular preferences. This should not be confused with interference based on the content of the preferences. Only the former would be justifiable under weak or soft paternalism, whereas the latter would constitute true or strong paternalism. As always, the demarcations are not as clear in practice as they are in theory—the content of preferences is often precisely what is appealed to in illustrating that a particular preference is compromised—but, by and large, what distinguishes soft paternalism from strong paternalism is the requirement that the decision or preference be fundamentally compromised, and not simply that it be mistaken or ignorant. This principled distinction remains important not least because it reflects a difference in approach or attitude. In the case of strong paternalism, the interference is based on the content of a preference not reflecting what is ostensibly in the preference holder’s interest. This is often accompanied by a much stronger view of the legitimacy of external judgments about what is really in a person’s interest, and by a stronger likelihood to question individuals’ own assessment of their best interests than alternative, softer versions of paternalism. In the case of weak or soft paternalism, persons might hold all manner of preferences not in their best interests that are nonetheless not justifiably interfered with because the relevant compromising conditions do not obtain. In public health policy, soft paternalism has been evoked to justify interventions that limit the ability of adolescents to act on preferences for alcohol, drugs, sexual activity, and driving.

In recent years, public health policy and liberal governments have increasingly looked to interventions called “nudges” to influence health behaviors in desirable directions. Nudges, typically understood as interventions in choice architecture, are the focus of libertarian paternalism. Libertarian paternalism defends interventions by planners (such as public health authorities) in the environmental architecture in which individuals decide and act in order to make it easier for people to behave in ways that are in their best interests (including their health), provided two conditions are satisfied (Thaler and Sunstein, 2003, 2008). First, individuals are steered by these interventions in ways that make them better off, as judged by themselves. Thus, in libertarian paternalism there is no attempt to contravene the will of individuals, in contrast to what some hold to be a necessary feature of paternalism. Second, the interventions must not overly burden individuals who want to exercise their freedom in ways that run counter to their welfare. In this sense, libertarian paternalism claims to be liberty-preserving, and hence libertarian.

A key conceptual question about paternalism is whether the interference with individual liberty must be against the person’s will (Beauchamp, 2010). If this feature is a necessary condition of paternalism, then libertarian paternalism is inappropriately titled. (p. 28) From the standpoint of public health ethics, however, whether libertarian paternalism is appropriately titled is less important than any moral issues it raises and how it is justified. There is a growing literature on the ethics of nudges, much of it focusing on health (Hollands et al., 2013; Quigley, 2013; Saghai, 2013a, 2013b).

Libertarian paternalism is grounded in the extensive empirical literature in cognitive psychology and the decision sciences that supports claims about people’s cognitive limitations, bounded rationality, and weakness of will. Although it raises challenging epistemic and political questions about how planners know what individuals judge is in their interests in specific policy contexts, libertarian paternalism may be well suited to public health contexts in which there is broad public consensus in favor of health-promoting behaviors such as eating more fruits and vegetables or getting more exercise, and a general recognition that it is difficult for people to act as prudentially as they would like. Thaler and Sunstein (2008) suggest, for example, that salads rather than French fries could be made the default “side” on restaurant menus, with diners free to request fries if that remains their preference. At the same time, libertarian paternalism has been criticized for failing to take account of the manipulative effects on choice of some marketplace forces. It has also been seen as too restrictive in its conditions (and therefore too weak) to be applicable or adequate for many public health contexts (Nuffield Council on Bioethics, 2007; Ubel, 1999).

A Central Task of Public Health Ethics: Providing a Complete Moral Picture of What Is at Stake

Part of the appeal of libertarian paternalism in public health policy is that, at least in certain contexts, it appears to sidestep, or in some cases resolve, the tension between liberty and health. This tension takes center stage in some analyses of the ethics of public health, such as when public health policies are placed on autonomy-limiting continua and the fourth and fifth justifications dominate the analysis. One such influential continuum is the Nuffield Council’s “intervention ladder” (Nuffield Council on Bioethics, 2007), which is presented as a way of thinking about the acceptability and justification of public health policies. The ladder is anchored at one end by what is presented as the least intrusive option, doing nothing, and at the other end by the what is presented as the most intrusive option, eliminating choice altogether (as in compulsory isolation). The council makes plain that all rungs on the ladder, including doing nothing, require justification, and that the ladder is to be taken only as a tool in the moral analysis of public health policies. However, the structure of the ladder and its attendant imagery reinforce the misleading view that balancing individual liberties with achieving health benefits is the primary moral challenge of public health, while at the same time appearing to emphasize ethical concerns about overreaching the mission of public health over ethical concerns about underserving it.

(p. 29) Continua of this sort also oversimplify the complex impact of interventions on choice and liberty, and on relations between citizens and the state. Incentives are not always less restrictive of choice than disincentives, and health promotion campaigns, which are generally ranked at or near the least intrusive end of the continuum, are not always without significant moral concern. Ad campaigns that are transparently sponsored by public health agencies to prevent transmission of influenza by promoting personal infection-control practices, or to reduce obesity by encouraging exercise and healthy eating, do not raise the same moral issues as the embedding of anti-drug or abstinence messages in the storylines of entertainment television programming by these same authorities (FCC, 2000; Forbes, 2000; Goodman, 2006; Krauthammer, 2000; Kurtz and Waxman, 2000). While the latter poses important questions about respect for liberty, government overreaching, and democratic legitimacy, the limited effectiveness of many ad campaigns raises important questions about whether the state is underserving its public health mission. Moreover, in the case of public health problems such as obesity, a reliance on health promotion campaigns and other strategies focused on influencing the behavior of individuals may both inappropriately stigmatize persons who are viewed as obese and fail to place an appropriate burden on the corporate interests and structural social inequalities that arguably account for much of the problem. Thus, depending on the circumstances, health promotion campaigns may be unjust as well as ineffective (Buchanan, 2008; Crawford, 1977; Faden, 1987; McLeroy et al., 1988).

An important task of public health ethics is not only to provide different moral justifications for policies and programs. It is also to critically examine their relationship to one another in the context of particular public health issues and activities so as to ensure a more complete moral picture of what is at stake, and to point out where no sufficient justification exists. In this way, public health ethics can play a more immediate practical role in public life. By raising challenges to and providing moral scrutiny of public health policies, it can contribute to creating an environment of accountability where both abuses and deficiencies are less likely. Thus, in addition to its intellectual significance, public health ethics can be an important element in the scheme of checks and balances that help keep public health authorities from overreaching or underserving their mission.

Acknowledgments

This chapter is a modified version of section 2 of “Public Health Ethics” (Faden and Shebaya, 2016).

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