The public's right to health: when patient rights threaten the commons.

• Author: Leonard, Elizabeth Weeks

TABLE OF CONTENTS I. INTRODUCTION 11. BACKGROUND A. Public Health Objectives B. Public Health and Individual Rights 111. PUBLIC HEALTH AND EXPERIMENTAL TREATMENT A. The Players 1. Patients 2. Pharmaceutical Companies 3. Government Regulators 4. Physicians 5. The Public B. The Opinions 1. Panel Decision 2. En Banc Decision IV. THE PUBLIC HEALTH RIGHT A. Redefining the Right B. The Public Health Right C. The Public Health Right in Context V. CONCLUSION I. INTRODUCTION

Most people, and most courts, accept that individuals have a right of personal autonomy and control over what is done to their bodies. The right is firmly rooted in common law doctrines, including the tort of battery, (1) self-defense privilege, (2) and informed-consent standards, (3) and recognized in constitutional rights to refuse medical treatment (4) and obtain an abortion. (5) At the same time, most people and most courts accept that individual rights may have to yield, at times, to the greater good of society. (6) For example, most states have well-established mandatory vaccination laws to prevent the spread of infectious diseases. (7) Most states also have long required individuals to wear seat belts and motorcycle helmets, despite these types of laws' intrusions on liberty interests--such as not being pricked with a needle or traveling in one's personal vehicle unencumbered by straps and buckles. (8) Although not without controversy, many states and localities prohibit smoking in public places. (9) Such laws have been repeatedly justified and upheld in the interest of public health. (10)

But would most people, or most courts, as readily agree that individuals should be prohibited from ingesting certain substances into their bodies, selling substances to desirous consumers, restricted in handgun ownership, or required to buy health insurance in the interest of public health? Recent cases and policy debates raise those challenging questions. The United States Court of Appeals for the District of Columbia recently declined to recognize an individual right to take experimental drugs. (11) One state and several localities have prohibited restaurants from selling certain foods believed to cause obesity. (12) Last term, four United States Supreme Court Justices and several commentators argued in support of handgun restrictions, partially on public health grounds. (13) In addition, state policy makers and U.S. presidential candidates propose to address the problem of health insurance coverage by requiring individuals to purchase health insurance. (14) Those examples suggest the emergence, or reemergence, of a "public health right" that trumps otherwise strongly protected individual liberty, autonomy, privacy, and property rights.

This Article offers a contemporary view on the "public health right" and its relevance in recent policy debates. The public health right defended herein is conspicuously distinct from the "right to health," meaning an affirmative individual right to health or health care. (15) Neither does the public health right derive from the so-called new public health, which extends government intervention into a wide range of private choices and concerns. (16) Rather, the public health right is grounded in the core mission of public health to reduce "public bads" and protect "public goods." (17) The concept is also distinct from notions of the commonweal or common good, whereby protecting the rights of many may justify intruding on the rights of one or a few. (18) The simple utilitarian calculus of saving several by killing one fails to provide a satisfying justification for the public health right. (19) Rather, this Article urges that the public, as a body (the "body politic") has a right to government protection and promotion. (20) The discussion begins by framing public health and individual rights in historical context, focusing on the traditional core functions of public health, such as sanitation and vaccination.

To develop the modern public health right in context, this Article examines the asserted right to experimental treatment. At least one court (21) and numerous commentators staunchly defended the fundamental, constitutional right of terminally ill patients to access experimental drugs that have not yet received regulatory approval as a right of medical self-defense, (22) right to make treatment decisions, (23) or right to life. The last judicial word on that question concluded that no such fundamental right exists. This Article supports the court's final decision but offers the public health right as a stronger, ultimately more satisfying, rationale for the conclusion. This Article concludes with a general defense of a public health right and considers its application into other contemporary contexts.

2. BACKGROUND

   Before defining the modern public health right, it is helpful first to understand the tradition of public health and justifications for government action that may impair individual rights. This Part begins with an exposition on the "old" public health, and then describes various ethical justifications for government intrusions on individual rights. This background frames the discussion that follows. (25)

   1. Public Health Objectives

      The Institute of Medicine articulated a classic conception of public health: "Public health is what we, as a society, do collectively to assure the conditions for people to be healthy." (26) As that definition suggests, public health goals typically cannot be achieved through individual action, but require collective, coordinated interventions. (27) Often, that "we," the organizer of public health efforts, is the government. (28) In addition, the benefits accrue to the people--the community, the body politic, the public. "The government's concern ... is not ... for this or that individual but ... for all individuals[,] ... the welfare of the community." (29) Collective action and public benefit are hallmarks of public health interventions.

      For example, think of city sanitation (30): 1 alone, or even with my neighbors, may decide to refrain from tossing our garbage, kitchen scraps, and human waste in the streets. That noble effort may make our immediate environment more pleasant and sanitary, but it does nothing to stop the flow of filth into our gutters, streams, and drinking water from other residents and businesses up the street and across town. (31) Despite our neighborhood efforts, we nevertheless may be exposed to unsightly, unpleasant, and disease-carrying sewage. We might try to spread the gospel of clean streets beyond our neighborhood through word of mouth, flyers, or billboards, or even try to pay others to stop dumping, if it is important enough to us. But those are logistically and monetarily difficult propositions. Even if we could identify all of the polluters, the transaction costs of negotiating with each individually would be staggering. The payment option, in particular, risks the hold-out problem of the last few people in town demanding inordinate sums to give up their individual trash-dumping rights. (32)

      Moreover, even those who voluntarily agree to join our effort may lapse or otherwise decide to return to dumping their garbage in the gutters. We, as individuals or in small groups, are powerless to bring the violators back into compliance, save sanctions such as withholding any agreed payments, shaming, boycotts, or the like. (33) Even if the law assigns us the initial right to be free from pollution, instead of a right to pollute, we face practical obstacles to enforcing our right. With thousands of potential polluter-defendants, whom should we sue and for how much? Could we convincingly prove who caused what harm to whom and that it was not an act of God? Can we track down the polluters and, once we do, will they have the means to compensate our harm? (34)

      Thus, the goal of clean, sanitary streets necessitates collective action, along with a central enforcement mechanism (i.e., government). Similar analysis could apply to any number of other societal objectives, such as preventing spread of contagious diseases, protecting clean air and water, promoting temperance and reducing violence, ending child labor and ensuring workplace safety, and defending against terrorist attack. (35) Individually, one person cannot achieve those broad aims, even if she gets vaccinated, stops drinking, refuses to hire minors, limits use of her car, and builds a bomb shelter in her backyard. But government, by implementing and enforcing laws, can bring about collective action and societal benefit. (36)

      At the same time, public health cannot achieve those goals "without, sooner or later, violating private beliefs or private property or the prerogatives of other institutions," including religious groups, business interests, medical professionals, and others. (37) Having clean streets means-that I cannot dump my trash wherever I wish. (38) Clean air may require minimizing vehicle and industrial emissions by altering driving habits or installing emission-control devices. Avoiding contagious disease may mean having inoculations that are painful and risky. Safe workplace standards like minimum age and wage and maximum hours laws cost businesses money. The government, through courts, regulators, prosecutors, and lawmakers, serves as referee of these conflicts among members of society. In public health, the conflict is often not simply one individual versus another, but individual interests versus the public or common good. (39)

   2. Public Health and Individual Rights

      Individual rights seem inherently at odds with the collective, population-based perspective central to public health. "Health care" focuses on individual wellness or freedom from pathology, while "public health" is concerned with promoting optimal health of the population as a whole. (40) Public health seeks not merely the aggregation of individual satisfaction but, rather, the common good. (41) Accordingly...