| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|
|
|
|||||||
|
|||||||||
PUBLIC HEALTH LAW |
Daniel M. Fox is with the Milbank Memorial Fund, New York, NY.
Correspondence: Requests for reprints should be sent to Daniel M. Fox, PhD, Milbank Memorial Fund, 645 Madison Ave, 5th Floor, New York, NY 10022-1095 (e-mail: dmfox{at}milbank.org).
 |
ABSTRACT |
|---|
 TOP ABSTRACT INTRODUCTIONTHE STANDARD HISTORY OF...LAW IN THE NEW...THE NEW HISTORY AND...References |
|---|
Law has been an essential tool of public health practice for centuries. From the 19th century until recent decades, however, most histories of public health described, approvingly, the progression of the field from marginally useful policy, made by persons learned in law, to effective policy, made by persons employing the methods of biomedical and behavioral science.
Historians have recently begun to change this standard account by documenting the centrality of law in the development of public health practice. The revised history of public health offers additional justification for the program of public health law reform proposed in this issue of the Journal by Gostin and by Moulton and Matthews, who describe the new program in public health law of the Centers for Disease Control and Prevention.
|
INTRODUCTION |
|---|
|
TOPABSTRACTINTRODUCTIONTHE STANDARD HISTORY OF...LAW IN THE NEW...THE NEW HISTORY AND...References |
|---|
|
THE STANDARD HISTORY OF PUBLIC HEALTH |
|---|
|
TOPABSTRACTINTRODUCTIONTHE STANDARD HISTORY OF...LAW IN THE NEW...THE NEW HISTORY AND...References |
|---|
For example, according to the standard history of British public health, a powerful lawyer, Edwin Chadwick, made environmental sanitation the priority of policy in the 1830s. Then, in the 1850s, physicians—notably William Farr and John Simon—introduced policies grounded in increasingly effective medical science.
Similarly, the conventional story of public health in Germany is that lawyers designed public health policies in the 17th and 18th centuries to stabilize authoritarian regimes and their tightly controlled mercantilist economies. As government in Germany began to liberalize in the 19th century, reformers such as the physician-scientist-legislator Rudolf Virchow insisted that physicians, not lawyers in civil service, were the "natural attorney(s) for the poor."4 By the end of the century, medical scientists had gained control of public health practice in Germany and introduced policies grounded in bacteriology and eugenics.
Public Health in the United States
Public health innovators in the United States drew heavily first on British and then on German experience. Reformers in Massachusetts and New York in the middle decades of the 19th century adapted Chadwick's priorities. By the end of the century, however, state and city governments had embraced the biomedical models recently implemented in Britain and Germany. Public health departments gave almost exclusive attention to policies for controlling the spread of infectious disease. During these years, moreover, many health officers began to cede to other agencies responsibility for regulating housing, water, sewage, and garbage.5
Lawyers became technicians in the new public health practice based on advances in biomedical science. In New York City government during the 1890s, for instance, physicians trained in Germany implemented what Robert Koch, visiting from Prussia in 1904, described as the most effective regulation he had seen to require the reporting and monitoring of cases of tuberculosis. Standard accounts of this and analogous uses of law and regulation as tools of public health (including, alas, one of my own articles6) emphasize the increasing cultural authority of science and sometimes the political skills of leaders of public health. These accounts deemphasize the role of law in public health innovation and ignore the work of lawyers who crafted regulations that with- stood lawsuits by organized medicine and citizens who feared loss of liberty.
The standard history also describes how the scientific basis of public health practice expanded in the second half of the 20th century as a result of the increasing incidence of chronic disease and successful campaigns against infections. Most historians of contemporary public health practice describe renewed interest in the role of environmental factors and individual behavior in controlling chronic disease.7 But they characterize law and regulation, when they address them at all, merely as mechanisms for legitimating the findings of scientific research.
Personal Experience Reinforces the Standard History
The personal experience of many contemporary public health practitioners reinforces the subordinate role accorded to law and lawyers by these historians. Lawyers and physicians often have tense relationships. Members of the 2 professions frequently disagree about the definition of appropriate evidence, the value of adversarial proceedings, and the social utility of due process.8 Officials at all levels of government frequently experience lawyers as sources of delay and rarely as sources of assistance. Moreover, most officials who become targets of lawyers for individual plaintiffs or classes of plaintiffs discover that the formal clients of attorneys general and agency counsel are governing boards and governors rather than individual public employ-ees. Nevertheless, law has for 500 years been an essential discipline of public health. What Gostin recommends and the new CDC law program aims to achieve restores lawyers to the eminent role in public health that they had in the past.
|
LAW IN THE NEW PUBLIC HEALTH HISTORY |
|---|
|
TOPABSTRACTINTRODUCTIONTHE STANDARD HISTORY OF...LAW IN THE NEW...THE NEW HISTORY AND...References |
|---|
The linkage of law and medicine in public health practice persisted into the 19th century, according to the revisionists. Baldwin, for instance, challenges historians who argue that public health policy under authoritarian regimes pursuing mercantilist economic policies was fundamentally different from policy under later democratic regimes committed to market economies. "The pertinent distinction is not that between conservative interventionism and liberal laissez-faire," Baldwin writes, "but rather between different sorts of intervention."10(p529)
In the most influential revisionist work to date, Hamlin challenges scholars of British public health policy who held that, beginning in the 1850s, proponents of advancing scientific knowledge defeated Chadwick and other lawyers who accorded priority to environmental sanitation. "Public health is everywhere and always contingent," Hamlin insists, employing a word used by social scientists who employ historical methods to suggest the interrelatedness, complexity, and unexpected consequences of any past event. Because public health policy is contingent, scientific or technical advances have never been its sole determinants.11(p341)
Hamlin found new evidence that progress in science did not cause the declining influence of lawyers in the formulation of British policy. Members of the medical profession had all along offered an alternative to the environmentalism of Chadwick and his colleagues in law and political economy. Many leading physicians in early 19th century Bri-tain "stated as issues of health... the great social issues... hunger, public order, population and conditions of work." But the medical profession, for reasons Hamlin explores, made no systematic "effort to become public guardians of the people's health." Public health officials and historians subsequently took no notice of this incipient social medicine as a result of the "rise of diseasecentered pathology in the second half of the 19th century."11(p52)
Similarly, Fee and Porter emphasize the intense and productive relationships among experts in public health from a variety of disciplines, including law, from the mid-19th into the early 20th centuries in both the United States and Britain. Porter documents the leadership of the British Medical Association in pressing for a "parliamentary inquiry into chaotic public health laws" that led to "great codifying legislation." Fee argues that until the early 20th century, "a mixture of lawyers, philanthropists, engineers, evangelicals and some concerned doctors" dominated public health reform in the United States.12(p261) In another volume, Fee and Acheson argue that the "mix of contributing disciplines [to the field] constantly changes."13(p5)
Tomes recently analyzed the motives of public health leaders in the United States who between the 1890s and 1940s dismantled the coalition of professions that Fee describes. "Leaders of the public health movement felt that it was essential to adhere to a more stringent laboratory-based standard of knowledge," she writes, in order "to improve their professional credibility." They also regarded laboratory science as "more manly" than social reform. Moreover, they believed that by limiting public health practice to science they could "remove medi- cine from partisan politics."14(p240-241)
|
THE NEW HISTORY AND CONTEMPORARY LAW REFORM |
|---|
|
TOPABSTRACTINTRODUCTIONTHE STANDARD HISTORY OF...LAW IN THE NEW...THE NEW HISTORY AND...References |
|---|
The new historiography also justifies the reconception of which professions contribute to public health practice and what each of them professes. In the new conception, public health practice is the result of ongoing sociopolitical negotiations that involve experts in a variety of disciplines, officials of each branch of government, the leadership of business and unions, the news media, and the general public. Lawyers who understand public health—as well as persons in other professions who understand and respect the law—are essential participants in these negotiations.
The replacement of a heroic history of progress in public health by accounts that emphasize contingency also forces recognition that public health professionals are among a minority who at any moment make health their highest priority. Employers may value the health status of their employees, but they are accountable to their boards for earnings and stock prices. Planning officials who believe that an acceptable quality of life requires better health are accountable to legislators for the adequacy and cost of roads, bridges, parks, and housing. People in elected office know that most of their constituents do not prioritize health until they or someone close to them is diagnosed with a severe disease.
Public health practice that is based on negotiation rather than advocacy may, therefore, at times yield law and regulation that disappoints public health professionals. That circumstance may, however, be preferable to the exclu- sion of public health professionals from discussions about employment, land use, and the priorities of elected officials.
A century ago, at a time of intense optimism about the achieve-ments of medical science, a prom-inent health officer said, "Public health is purchasable." He was wrong.15(p226) As science advanced, so did new diseases and new problems in treating them.
Public health is negotiable rather than purchasable. As a result, practitioners must become as skilled at accommodation as they now are at advocacy. Accommodation is not a synonym for cowardice. Improvements in the health of populations may be achievable, for example, as a by-product of law and regulation that has another primary purpose, to which public health officials accommodate. Many of the goals that Gostin sets for public health law reform, and that the CDC law program shares, are likely to be attained through laws and regulations that address, for example, economic development, transportation, housing, income for workers and retirees, patients' rights, and the responsibilities of health plans and provider organizations. Making such laws and regulations will require collaboration among disciplines and, occasionally, deference by practitioners of each discipline. Gostin, Matthews, Moulton, and many of their colleagues embrace this broad definition of the professions of public health.
|
Footnotes |
|---|
Accepted for publication March 23, 2001.
|
References |
|---|
|
TOPABSTRACTINTRODUCTIONTHE STANDARD HISTORY OF...LAW IN THE NEW...THE NEW HISTORY AND...References |
|---|
2.
Moulton A, Matthews G. Strengthening the legal foundation for public health practice: a framework for action. Am J Public Health.2001;91:1369.
3. Porter D. Health, Civilization and the State: A History of Public Health From Ancient to Modern Times. New York, NY: Routledge; 1999:120–141.
4. Rosen G. The fate of the concept of medical police, 1780–1890. In: Rosen G. From Medical Police to Social Medicine: Essays in the History of Health Care. New York, NY: Science History Publications; 1974.
5. Melosi MV. The Sanitary City: Urban Infrastructure in America From Colonial Times to the Present. Baltimore, Md: Johns Hopkins University Press; 2000.
6. Fox DM. Social policy and city politics: compulsory notification for tuberculosis in New York. Bull History Med. 1975;49:169–195.
7. Fox DM. Power and Illness: The Failure and Future of American Health Policy. Berkeley: University of California Press; 1995.
8. Fox DM. Physicians versus lawyers: a conflict of cultures. In: Dalton HL, Burris S, Miller JL, eds. AIDS Law Today: A New Guide for the Public. New Haven, Conn: Yale University Press; 1993:367–376.
9. Raeff M. The Well-Ordered Police State: Social and Institutional Change Through Law in the Germanies and Russia, 1600–1800. New Haven, Conn: Yale University Press; 1983.
10. Baldwin P. Contagion and the State in Europe, 1830–1930. Cambridge, England: Cambridge University Press; 1999.
11. Hamlin C. Public Health and Social Justice in the Age of Chadwick: Britain, 1800–1854. Cambridge, England: Cambridge University Press; 1998.
12. Fee E, Porter D. Public health, preventive medicine and professionalization: England and America in the 19th century. In: Wear A, ed. Medicine in Society: Historical Essays. New York, NY: Cambridge University Press; 1992:249–276.
13. Fee E, Acheson RM, eds. Introduction. In: A History of Education in Public Health: Health that Mocks the Doctors' Rules. New York, NY: Oxford University Press; 1991:1–14.
14. Tomes N. The Gospel of Germs: Men, Women and the Microbe in American Life. Cambridge, Mass: Harvard University Press; 1998.
15. Hammonds EM. Childhood's Deadly Scourge: The Campaign to Control Diphtheria in New York City, 1880– 1930. Baltimore, Md: Johns Hopkins University Press; 1999.
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
