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  • 1
    Our definition builds on the definition of health systems offered by the World Health Organization: Health systems include “all the activities whose primary purpose is to promote, restore, or maintain health.” See World Health Report 2000 Health Systems: Improving Performance ( Geneva : World Health Organization, 2000): at 5.
  • 2
    Committee for the Study of the Future of Public Health, Division of Health Care Services, Institute of Medicine, The Future of Public Health ( Washington , D.C. : National Academy Press, 1988): at 1.
  • 3
    We recognize that there are different views about the ultimate moral justification for the social institution of public health. For example, some communitarians appear to support public health as an instrumental goal to achieve community. Others may take the view that the state has a duty to ensure the public' s health as a matter of social justice. Although these different interpretations and others are very important for some purposes, they do not seriously affect the conception of public health ethics that we are developing, as long as public health agents identify and inform others of their various goals.
  • 4
    L.O. Gostin, Public Health Law: Power, Duty, Restraint ( Berkeley : University of California Press; New York: The Milbank Memorial Fund, 2000): at 20.
  • 5
    T. Nagel, “Moral Epistemology,” in R.E.Bulger, E.M.Bobby, and H.VFineberg, eds., Committee on the Social and Ethical Impacts of Developments in Biomedicine, Division of Health Sciences Policy, Institute of Medicine, Society' s Choices: Social and Ethical Decision Making in Biomedicine ( Washington , D.C. : National Academy Press, 1995): 20114.
  • 6
    For some other approaches, see P. Nieburg, R. Gaare-Bernheim, and R. Bonnie, “Ethics and the Practice of Public Health,” in R.A.Goodman et al., eds., Law in Public Health Practice ( New York : Oxford University Press, in press), and N.E. Kass, “An Ethics Framework for Public Health,”American Journal of Public Health, 91 (2001): 1776–82.
  • 7
    We do not explore here the overlaps among public health ethics, medical ethics, research ethics, and public policy ethics, although some areas of overlap and difference will be evident throughout the discussion. Further work is needed to address some public health activities that fall within overlapping areas — for instance, surveillance, outbreak investigations, and community-based interventions may sometimes raise issues in the ethics of research involving human subjects.
  • 8
    Recognizing universalizability by attending to past precedents and possible future precedents does not preclude a variety of experiments, for instance, to determine the best ways to protect the public' s health. Thus, it is not inappropriate for different states, in our federalist system, to try different approaches, as long as each of them is morally acceptable.
  • 9
    This justificatory condition is probably the most controversial. Some of the authors of this paper believe that the language of “necessity” is too strong. Whatever language is used, the point is to avoid a purely utilitarian strategy that accepts only the first two conditions of effectiveness and proportionality and to ensure that the non-utilitarian general moral considerations set some prima facie limits and constraints and establish moral priorities, ceteris paribus..
  • 10
    For another version of these justificatory conditions, see T.L. Beauchamp and J.F. Childress, Principles of Biomedical Ethics, 5th ed. ( New York : Oxford University Press, 2001):at 19–21. We observe that some of these justificatory conditions are quite similar to the justificatory conditions that must be met in U.S. constitutional law when there is strict scrutiny because, for instance, a fundamental liberty is at stake. In such cases, the government must demonstrate that it has a “compelling interest,” that its methods are strictly necessary to achieve its objectives, and that it has adopted the “least restrictive alternative.” See Gostin, supra note 4, at 80–81.
  • 11
    Of course, this chart is oversimplified, particularly in identifying only voluntary and mandatory options. For a fuller discussion, see R. Faden, M. Powers, and N. Kass, “Warrants for Screening Programs: Public Health, Legal and Ethical Frameworks”, in R.Faden, G.Geller, and M.Powers, eds., AIDS, Women and the Next Generation ( New York : Oxford University Press, 1991): 326.
  • 12
    Working Group on HIV Testing of Pregnant Women and Newborns, “HIV Infection, Pregnant Women, and Newborns,” Journal of the American Medical Association, 264, no. 18 (1990): 241620.
  • 13
    See Faden, Geller, and Powers, supra note 11; Gostin, supra note 4, at 199–201.
  • 14
    In rare cases, it may be ethically justifiable to limit the disclosure of some information for a period of time (for example, when there are serious concerns about national security, about the interpretation, certainty, or reliability of public health data; or about the potential negative effects of disclosing the information, such as with suicide clusters).
  • 15
    N. Daniels, “Accountability for Reasonableness,” British Medical Journal, 321 (2000): 130001, at 1301.
  • 16
    P.C.Stern and H.V.Fineberg, eds., Committee on Risk Characterization, Commission on Behavioral and Social Sciences and Education, National Research Council, Understanding Risk: Informing Decisions in a Democratic Society ( Washington , D.C. : National Academy Press, 1996): at 155.
  • 17
    Id. at 16–17, 156.
  • 18
    See, for example, N. Daniels and J. Sabin, “Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers,” Philosophy and Public Affairs, 26 (Fall 1997): 30350, at 350.
  • 19
    J.S. Mill, On Liberty, ed. G.Himmelfarb ( Harmondsworth , England : Penguin Books, 1976): at 71. For this chart, see J.F. Childress, Who Should Decide' Paternalism in Health Care (New York: Oxford University Press, 1982): at 193.
  • 20
    See, for example, the discussion in I.Kawachi, B.P.Kennedy, and R.G.Wilkinson, eds., Income Inequality and Health, vol. 1 of The Society and Population Health Reader ( New York : The New Press, 2000).
  • 21
    J.M. Mann, “Medicine and Public Health, Ethics and Human Rights,” The Hastings Center Report, 27 (MayJune 1997): 613, at 11–12. Contrast Gostin, supra note 4, at 21. For a fuller analysis and assessment of Mann' s work, see L.O. Gostin, “Public Health, Ethics, and Human Rights: A Tribute to the Late Jonathan Mann,” S.P. Marks, “Jonathan Mann' s Legacy to the 21st Century. The Human Rights Imperative for Public Health,” and L.O. Gostin, “A Vision of Health and Human Rights for the 21st Century: A Continuing Discussion with Stephen P. Marks,”Journal of Law, Medicine, and Ethics, 29, no. 2 (2001): 121–40.
  • 22
    Mann, supra note 21, at 10. Mann thought that the language of ethics could guide individual behavior, while the language of human rights could best guide societal-level analysis and response. See Mann, supra note 21, at 8; Marks, supra note 21, at 131–38. We disagree with this separation and instead note the overlap of ethics and human rights, but we endorse the essence of Mann' s position on human rights.
  • 23
    See Gostin, supra note 4, at 21.