PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT by Lawrence O. Gostin. Berkeley: University of California Press, 2001. 517 pp. Cloth $60.00. ISBN 0-520-22646-1. Paper $24.95. ISBN 0-520-22648-8.

Reviewed by Michael J. Licari, Department of Political Science, Binghamton University, SUNY.

Historically, public health efforts in the United States have accomplished a stunning string of successes. Public immunization policies have effectively eliminated infectious diseases such as polio, while others such measles are in check. Government standards ensure the safety of drinking water. Improved screening and tracking methods give public health officials greater access to information about the spread of illness. Tougher regulations on industry and individuals ensure that public health risks are minimized. In short, public health has been, and continues to be, an important and successful function of government. In the United States, despite our traditional constitutional wariness of assertive government, it is accepted that the state has an obligation to be active in securing the health of the population. Increased public health activities come at a price, however. By regulating society in the name of public health, we are necessarily required to give up certain private rights. Lawrence Gostin, in PUBLIC HEALTH LAW, explains the nature of these tradeoffs and ultimately seeks to present conditions when increased regulation to improve public health is legitimate.

Public health policy is not as straightforward as one might expect, as Gostin stresses. Public health policy is routinely successful, and it can be relatively easily "purchased" with increased budgets for public health agencies. However, public health regulations also restrict civil liberties and individual rights, such as privacy, freedom of expression, and personal autonomy. The key question Gostin seeks to answer is, given all of this: what is the proper way to achieve the goal of public health?

Gostin answers the question by assessing the constitutional powers and limits regarding public health law. In doing so, he argues that the constitution does more than frame rights in a "negative" way (that is, by restricting government actions rather than requiring government intervention). First, distinguishing between action and inaction is often difficult. Most government "inaction" is typically the result of a series of deliberate decisions. Second, people rely on the government for protection, and when an agency is created to prevent harm, that is at least an implicit promise that the government will respond to the needs of citizens. Finally, "judicial refusal to examine government's failure to act.leaves the state free to abuse its power" (p. 34). Gostin argues that in the face of public health threats, the government is most abusive when it withholds services. Thus, the state has a duty to actively safeguard citizens from public health threats.

The state not only has the duty to safeguard public health, it also has

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tremendous power to do so. The constitutional powers to tax, spend, and regulate interstate commerce gives government the capability to limit private rights in exchange for greater public health. Taxing can alter personal preferences by increasing the price of risky behavior. Spending allocates resources for public health efforts, and it also can work as an incentive; intergovernmental grants can come with strings attached to compel governments to enforce and comply with public health standards. Regulating interstate commerce, although coming under recent scrutiny, gives the federal government broad capacity to control many public health issues that normally would be reserved for the states.

Gostin argues that, although the state has the power and the duty to safeguard public health, restraint must be used in doing so. At first, one might ask why this is the case, given that public health is universally desirable, and, for the most part, attainable. The key is that by providing a public good, the government must curtail some private rights. Gostin concludes that while no formula will be able to universally determine whether some public health intervention is legitimate, he presents a general rule of thumb to address the question. His solution is to balance public goods and private rights by increasing constitutional scrutiny as the burden to civil liberty increases, and/or when interventions do not provide significant increases to public health. The government, to regulate to improve public health, should demonstrate significant risk based on scientific methods, the intervention's effectiveness, reasonableness of economic costs, and fair distribution of benefits, costs, and burdens (p. 93).

Gostin's evaluations of these four points are relatively straightforward, and are based in (but not drawn directly from) the policy analysis and evaluation literature, which he does not cite. His discussion of risk assessment is, however, problematic. The troublesome issue is his call for case-by-case assessments. This, he argues, is done to "avoid decisions made under a blanket rule or generalization about a class of persons". This is a poor prescription since it is in direct conflict with public health science, which is based primarily on analyses of populations. Social science (including epidemiology) is based on the fact that there are generalizable causes and effects that we can identify and assess. An individualized, case-by-case, evaluation of risk is fine for the practice of medicine, but that (as Gostin himself points out) is not public health. Gostin apparently is worried about bureaucratic standard operating procedures when providing public health (or any other) services, which focus on groups of people rather than on individuals. What he does not realize, since he does not use any public administration or political science literature to inform his book, is that agencies use "blanket rules" precisely to increase the quality and quantity of the service they deliver. Thus, general rules are more in line with public health law as well as with the nature of government service provision.

The remainder of the book is devoted to applying Gostin's four criteria through examinations of specific trade-offs in personal privacy, freedom of expression, bodily integrity, autonomy, and direct and indirect regulation of economic behavior. These chapters provide some fascinating detail on the government's efforts to provide public health services in ways that do not unnecessarily trample on private rights. They show how useful law and regulation

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can be in achieving public health goals, while at the same time demonstrating the very real requirements of restraint in the use of government powers. Some of the analyses of the tradeoffs in these chapters, however, seem contrived.

In his chapter on public health information and personal privacy, Gostin worries about anonymity in surveys and other forms of public health data collection. This is a standard concern for any social scientist working with human subjects. Although this is serious, it is also more of a technical problem than anything: proper data base management and security ensures that survey respondents or human subjects remain anonymous and their data remain confidential. Also, although Gostin identifies instances of gross violations of ethics and constitutional rights (e.g. the Centers for Disease Control-supported Tuskegee syphilis study in the early 1930s in which African-American men were unwitting participants), these were not part of a pattern of civil rights abuse on the part of the CDC. They were instead aberrations that resulted from poor judgment on the part of the individuals who authorized the studies. The simple fact is that the vast majority of public health research is done in ways that are sensitive to individual rights.

Many of the arguments in his chapter on freedom of expression are also problematic. To bolster his points that government restrictions on corporate speech can interfere with private rights and that government-provided information is problematic because it prescribes "social orthodoxies" (p. 151), Gostin presents free speech as a free market of ideas. This analogy is false. There is no free market of ideas, nor is one desirable. Speech is restricted in important ways, because the "truth" is unlikely to be heard in certain situations. Consumer protection laws, for example, restrict the types of claims that can be made about a product. In public health issues, a regulated market of ideas is important, particularly when the government has to contend with powerful private companies, such as the tobacco industry (p. 167). What Gostin sees as the potential trampling of the first amendment, others simply see as a leveling of the playing field. Nor is government speech nearly as problematic as Gostin makes it out to be. He worries that government speech for public health purposes does more than simply provide information. It can alter public opinion, challenge social norms, and prescribe behavior. This is, of course, the very point of government- provided information and is what makes it effective. Furthermore, since government speech seems to be the least intrusive form of public health policy, it is difficult to see Gostin's objections.

Gostin, in his assessment of the uses of direct regulation by public health agencies, determines that economic liberties should not weigh more heavily than civil liberties such as personal privacy or autonomy. Public health agencies have the tools, power, and obligation to regulate the market in order to secure the health of the population. This is a correct assessment, although one that is routinely ignored, as politicians seem to be more interested in preventing bureaucratic intervention into the market (i.e. through inspections, licensing, and nuisance abatement).

His offering of tort law (indirect regulation) as a feasible substitute for direct regulation falls short, however. Tort law, by imposing liability, can reduce the burden of injury and disease from public health risks. This too has the same trade-off calculus between public health and private rights.

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Gostin, however, argues that tort law can be superior to public health legislation or agency regulation because it avoids politics. Powerful business lobbies can thwart public health legislation or regulation through the political process (p. 288). Tort law allows public health advocates a way to circumvent this problem.

Tort law, however, is unlikely to be truly successful in achieving public health goals for a number of reasons. First, as Gostin himself admits, industries that are politically powerful will also be powerful adversaries in court. Although Gostin uses the history of tobacco litigation as a success story, it is really quite the opposite. After being stymied for decades, it finally took an innovative, yet uneven and time-consuming, legal approach (lawsuits filed on the behalf of state governments) to win. Public health legislation and agency rules, on the other hand, do not take decades to pass despite the problems encountered in the political process.

Second, Gostin dismisses the critique that tort law will not influence personal behavior since lay people are unaware of legal rules and will be unlikely to follow them even if they are known. He argues that tort law, by imposing liability, increases the costs of production. These costs are then passed on to the consumer in the form of higher prices that reduce demand for the product. This is obviously correct, but it misses the point that regulation-induced price increases (via excise taxes, for example) will be more effective. Since the government can clearly indicate the public health reasons for the price increase, citizens will be more likely to react to them (Licari and Meier 2000). Furthermore, it is unlikely that businesses will consistently alter products or prices in the face of potential tort liability, since it may be cheaper in the long run to resist in court or simply absorb the liability costs rather than make changes.

Third, tort law is uneven. It exists only when a victory was attainable in court. Powerful industries that may need to be the most tightly regulated therefore are the most immune. This obviously can apply in the policy process as well, as wealthy lobbies will have more influence. However, the policy process is much more open, which reduces the ability of any one policy actor to dominate the situation. Furthermore, the agency rulemaking process provides a relatively insulated mechanism that public health advocates can use to great effect. Drawing upon Gostin's example of tobacco, it is clear that the government was able to regulate cigarette smoking and sales long before public health advocates scored a single victory in court.

Gostin's book PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT is for the most part a thoughtful book, with the exceptions noted above. Although it is unlikely to redefine the field of public health law, it does offer a comprehensive analysis of the issues and problems that legislators, bureaucrats, and interested lay people face when using law and regulation to improve public health. Presumably written for those in law, readers in political science and public administration will find much of his presentation of the issues surrounding public health service provision to be generalizable to all of politics and policy (indeed he does not seem to recognize this fact, as he does not cite any political science or public administration literature). There really is not anything inherently distinctive, other than the details, about public health law as opposed to other regulatory areas. Tradeoffs between the power of the state and the value of individual rights exist in all areas of public policy, and the framing of public

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health issues as unique will be somewhat annoying to readers versed in the public administration and public policy literatures. PUBLIC HEALTH LAW is a very good basic regulation or public administration text and is suitable for advanced undergraduate classes or perhaps M. P. A. programs.

REFERENCE:

Licari, Michael J., and Kenneth J. Meier. 2000. "Regulation and Signaling: When a Tax Is Not Just a Tax" JOURNAL OF POLITICS 62: 875-85