co-opting the health and human rights movement

Co-opting the Health and Human Rights Movement

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Peter D. Jacobson and Soheil Soliman

ublic health is concerned with how to improve the population’s health. At times, though, actions to im- P prove the community’s health may collide with

individual civil rights. For example, a public health response to a bioterrorism attack, such as smallpox, may require re- laxing an individual’s due process protections to prevent the smallpox from spreading.’ This tension lies at the heart of public health policy. It also must be considered in discussing the concept of human rights in health.

Proponents of incorporating the concept of human rights in health emphasize the importance of both individual rights and collective rights. They argue that observing human rights is not only consistent with broad public health goals, but necessary to their attainment. To many human rights advocates, the concept is not limited to protecting against governmental intrusion. Accordingly, they emphasize the government’s obligation to promote the attainment of human rights by, for instance, providing adequate health care. Although human rights rhetoric is usually developed from an international perspective, each country must interpret and implement human rights within its own borders. Therefore, every nation will draw a unique balance between individual civil rights and community rights and embed human rights in laws in different ways.

In this article, we use the individual civil rights perspective of the United States as a case study of how human rights rhetoric functions, or fails to function, when a particular interpretation of human rights is construed and embedded in civil law In the United States, community rights are often subordinated to individual civil rights. The political tradition in the United States is that of negative rights, i.e., preventing governmental intrusion into an individual’s per-

JoumlofLaw Medicine &Ethics, 30 (2002): 705-715. 0 2002 by the American Society of Lay Medcine & Ethics.

sonal choices. An alternative perspective, the positive rights tradition, which is more prominent in Europe, expects the government to provide broad social and economic rights, including the right to health care, housing, food, education, and an adequate standard of living, as well as the negative civil rights held sacred in the United States.

Our goal is to examine the implications of using human rights language and the law in a particular setting to further the goals of public health in an arena dominated by individual rights.2 In the United States, human rights rhetoric cannot be relied upon to further the goals of public health as long as the interpretation of human rights is excessively based on individual civil rights. As a result, we argue that human rights rhetoric is contestable terrain and that opponents of public health have effectively co-opted human rights language to the detriment of sound public health policies.

The reason for this is that opponents are effectively using the rhetoric of individual civil rights to contest public health interventions that rely on population-based ~oncepts.~ Public health advocates can no longer assume that human rights language belongs exclusively to public health. In fact, industry opponents, libertarians, and conservatives effectively use individual civil rights language to undermine the broader goals of international human rights rhetoric in opposing public health strategies. Even if opponents’ individual rights arguments are flawed, they cannot be easily dismissed because the rhetoric often resonates with a generally sympathetic public.

It is thus important to understand the role of human rights rhetoric in public health initiatives, its potential limitations, and how public health advocates can reclaim it. In short, how can human rights rhetoric be used to support and justify public health‘s community-based interventions against the increasingly vigorous assemon that public health intrudes too much on individual rights? We discuss how the co-opt-

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ing occurs and what advocates can do to reclaim effective use of human rights rhetoric - in particular, how social movements can be used as a strategy for implementing the principles of health and human rights.

At the outset, let us make clear our general support for a human rights approach. The article does not set out to enshrine the peculiar American tradition of human rights, to treat the rights of smokers or gunowners as privileged, or to defend the American human rights perspective. That we find limitations to the use of human rights rhetoric should not obscure our fundamental support for placing it at the center of achieving public health goals. What we want to investi- gate is how best to embed human rights in public policy, civil institutions, and public consciousness - whether to have it formally enshrined in law or established through social movements.

The article is divided into two main parts. In the first part, we look at human rights rhetoric and how opponents of public health have attempted to co-opt it. We also examine the potential for legal strategies to use human rights rhetoric. In the second section, we argue that more effective social movements are an alternative to legal strategies and analyze why both the legal approach and social movements are reliant on a strong public health voice in policy debates.

THE LEGAL MODEL FOR H w RIGHTS RHETORIC One way to reclaim human rights rhetoric for public health is to enshrine its language, goals, and aspirations as an integral part of the law. Before considering that possibility, we first discuss what we mean by human rights rhetoric and how it has been co-opted.

The many interpretations of “human rights” As Scott Burris implies, there is no agreed-upon definition of health and human right^.^ At the beginning of Health and Human Rights: A Reader,’ Jonathan Mann defines the rela- tionship between health and human rights. He first defines human rights as a broad set of fundamental rights inhering in individuals, as defined in a variety of documents, including the Universal Declaration of Human Rights. These rights are indivisible (to include both negative and positive rights) and universal (not subject to national or cultural interpretation). Mann identifies increases in health as a gain in human rights by bettering man’s basic condition. Fulfillment of human rights also leads to better health by freeing people from op- pression and discrimination. In Mann’s assessment, human rights and health interact positively, each enhancing the other. Nevertheless, Mann recognizes that there would be instances where public health demands would constrain the exercise of some individual rights. Similarly, Gostin and Lazzarini note, “Human rights embody a fundamental set of fundamental claims to life, liberty, and equality of opport~nity.”~

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rhey go on to argue that this definition requires government :o provide adequate resources “conducive to public health md well-being.”’

To the extent that these conceptions are consistent, it is xround the idea that human rights implicates fundamental rights to a wide range of entitlements and protections that xre relevant to health. In that sense, the definition is very broad -too broad because it exposes an ambiguity, or per- haps a contradiction, at its core.* One problem is that Mann’s concept applies human rights to both individual and collective rights without adequately indicating how it could do so simultaneously. How can the definition be applied to resolve the fundamental tension in public health practice, balancing individual rights with community interests? Despite the em- phasis on individual entitlements, is human rights rhetoric compatible with the concepts of autonomy, privacy, and liberty, as enshrined in the U.S. C~nstitution?~ To some extent, the answer is yes; the negative rights tradition protects some civil and political rights. More importantly, as we will see, proponents of the health and human rights strategy must avoid the problem that human rights rhetoric can easily be used by opponents to undermine the very goals this approach was designed to achieve.

The assumption underlying Mann’s approach is that human rights will always benefit society. The difficulty in using the human rights approach arises in instances where one individual must lose some rights in order for others to gain health. Depending on how human rights is interpreted and applied, it may well be that someone’s individual rights may be abrogated to advance human rights for others. To that person, the human rights arguments would make him or her worse off (or not as well off as before). For example, a smoker’s right to consume a legal product is compromised by clean indoor air laws benefiting larger numbers of citizens. It is thus important to understand how a society and individuals go about balancing competing rights.

The need to balance individual rights and social welfare, and positive and negative rights, has generated considerable disagreement among the noted political phi- losophers who developed the initial ideas of the rights of man. John Stuart Mill recognized that what rights individuals are to have in society is a question that “no two ages, and scarcely any two countries, have decided alike.”*O Because our understanding of human rights is based on ethics, there will be a plurality of conceptions and interpretations of rights not only across societies, but across individuals as well.

Co-opting human rights rhetoric The particular feature of human rights in the United States is that these rights are interpreted negatively, not positively. “ m h e Constitution is a charter of negative rather than positive liberties.. .. The men who wrote the Bill of Rights were not concerned that government might do too little for the

people, but that it might do too much for them.”” Thus, the government’s powers are defined not by what it has an obligation to do, positive rights, but rather by what it does not have the power to do, negative rights. The Constitution ex- pressly limits the power of government from infringing upon the individual, but does not give an individual citizen a claim against the government for any entitlement (i.e., food, shel- ter, welfare, or health).’* Because they are stated negatively, the rights that arise are ill-formed and illusive; nevertheless, they permit individuals to challenge the government’s authority when it tries to limit individual rights. The assertion of community rights often negates individual rights and prompts any affected persons to initiate a legal challenge against the government’s position.

As a society, Americans are often uncomfortable with the idea that community (or collective) rights, which are central to public health, would override individual rights. In the United States, individual rights constitute a fundamental part of the rights argument, often subordinating collective and positive rights. Part of this is rooted in Americans’ traditional distrust of government and concentrated authority Understanding the American conception of human rights (at least how it is used by opponents of public health) is therefore essential to recognizing why and how human rights rhetoric can be and is co-opted. In this culture, intrusions into individual rights are characterized as affronts to the rights tradition. The American interpretation of rights allows public health opponents to co-opt human rights arguments, using it to strictly mean negative civil rights and portray public health advocates as willing to limit citizens’ individual rights in favor of collective rights. Public health advocates’ failure to recognize the primacy of this interpretation of human rights in the United States has led to a lack of understanding as to why public health rhetoric often does not resonate with the broader public.

Individual rights arguments have become part of the American lexicon, and their pertinence to the lives of every- day citizens gives public health opponents ammunition to use those rights arguments. One reason for this is that “moral issues are not generally technically complex, are highly salient to the public, and evoke substantial citizen participati~n.”’~ The ramifications of limiting rights on people’s working environ- ments, their homes, and even their bodies are so far-reaching and easy to perceive that the public is quickly aroused by threats to their individual rights. These easily understood and personally meaningful arguments can work against public health and seriously dilute the effectiveness of community rights strategies.

The primary strategy used to deflect policies based on community rights is to argue that they intrude on individual and property rights. As one scholar succinctly noted, “These debates become resolved by common acceptance (or rejec- tion) of limits on individual freedoms. No one group has the monopoly on the human rights argument; the various groups

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are engaged in framing the issues in a light favorable to thern.’’l4 Consequently, the focus on rights arguments can be easily co-opted and is therefore an unreliable method for sustained political change.

Rights rhetoric in tobacco control A good example is how the tobacco industry co-opted human rights rhetoric by switching to personal freedoms arguments after its scientific arguments were rejected by state legislators. The central claims of opponents to tobacco regulation have been that smoking is a matter of individual choice and that market arrangements, especially protecting property rights, should determine where people smoke, not the government. Most forcefully, opponents of clean indoor air restrictions have argued that smoking is a matter of personal choice for adults that should not be subject to governmental interference.ls These commentators have actively opposed smoking regulations on conceptual grounds as unjustified governmental paternalism. Supporters of the tobacco industry have also argued that smokers retain certain rights in pursuing personal social behavior and cannot be discrimi- nated against for their tobacco use.

In recent years, opponents of tobacco regulation have accused the tobacco control movement of being intolerant and tyrannical. To these critics, smokers are unfairly treated as social outcasts.16 They see antismoking advocates not only as paternalistic, but ultimately favoring a naively prohibi- tionist approach to smoking, a policy no more likely to be successful than the previous attempt to ban alcohol in the 1920s and 1930s. In particular, there is the problem of whose rights are allowed to dictate what is legislated. This is the traditional public health dilemma of whether the individual’s right to engage in legal behavior and take responsibility for his or her own health is outweighed by the public’s right to clean air. Similarly, there is the underlying philosophical question of how far the government, at any level, should be allowed to limit individual freedoms for the sake of public health.

Jacob Sullum,” a leading critic of the community’s right to impose restrictions on smoking in public places, also uses property rights arguments to support the claim that clean indoor air laws are too intrusive. Sullum asserts that a business is private property and therefore protected from government intervention. He also uses the rights argument to defend smoking in restaurants and bars, claiming an invasion of the owners’ rights in determining how they use their property. Sullum attacks public health saying, “a government empowered to maximize health is a totalitarian government.”18 Adjectives such as “totalitarian” are purposefully used to invoke images of individual civil rights violations and to question the means public health officials use to protect health. Even among people who have taken political action against tobacco, smoking is still seen largely as a personal responsibility issue.

Internal tobacco industry documents show that the industry was aware early on that this would be a powerful strategy for combating regulation. Public opinion research conducted in 1977 concluded that “the public has an innate resistance to government regulation affecting consumer product~.’’’~ The report suggested that the company enter “into an ‘alliance’ in the form of an association or commission to promote freedom of choice, resist further governmental en- croachments and challenge those who wish to ‘manipulate minds.”’z0 The report found that “a large number of respon- dents have no opinion on these issues” and “are a constituency to be cultivated.”*’ The tobacco companies took such news to heart and, during events such as the Great American Smokescreen (in response to the Great American Smokeout), they handed out pamphlets like the Great American Smoker’s Bill ofRigbts. This smoker’s bill of rights asserted “the right to pursue happiness, the right to choose to smoke, the right to be treated courteously, the right to accommodation in public places” and “the right to freedom from unnecessary government intrusion.”=

One study found that the personal freedoms argument resonated among civil liberties advocates and minorities, as well as among traditional opponents of governmental interference in the market.23 This had the dual effect of changing how the tobacco control debate was framed in several states and allowed the industry to enact legislation favorable to its own interests.24 Public health advocates had a hard time reframing the issue in terms of protecting the community.

Researchers have also documented attempts by the Na- tional Smokers Alliance (NSA) to thwart tobacco control in California and Florida. During the fight to ban smoking in all Californian restaurants, the NSA attempted to drum up noncompliance for the new ordinance to show its unjust infringement on personal liberties. Their tactics portrayed the indoor smoking bans as intrusions on the liberty of smokers and business owners, and they attempted to show that such bans harmed businesses. “The industry tried to create a positive feedback loop in which smokers would be encour- aged to ignore the law because the law was going to be repealed, and the industry then used noncompliance as an argument in the legislative appeal.”= The NSA targeted bar owners, providing them with “action kits,” customer awareness posters, and coasters that stated, “I’m a constituent, not a criminal.”26

Rights rhetoric in gun control A similar tale of co-opting emerges from the struggle over gun control. Gun control opponents have been particularly successful in using an indtvidual civil rights argument to protect their interests and thwart public welfare interventions. The gun control debate prior to the 1960s was virtually non- existent, except for sporadic attempts at regulation in the urban Northeast. Awareness and movement toward gun con-


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trol was prompted by assassinations of high profile figures in the 1960s. The introduction of the first federal gun control law in Congress occurred in 1963, on the heels of John F. Kennedy’s assassination. Five years after Kennedy’s assassination, and immediately following the assassinations of Martin Luther King and Robert Kennedy, the federal government finally passed two pieces of regulation. The response of gunowners’ groups in defense of their rights was much more immediate than that of smokers rights groups, in part because they were already organized for purposes other than politics?’ The National Rifle Association (NRA) publication American Rifleman, for example, devoted less than four percent of its publication to legislation prior to 1965.2* By the 1 9 8 0 ~ ~ the NRA had become one of the most feared lobbying organizations in Washington. The presence of single- issue groups such as the NRA asserting its members’ constitutional rights (i.e., using the negative individual civil rights rhetoric) has had a powerful effect on the political process.29 In this instance, the personal freedoms rhetoric has successfully obscured the broader human rights perspective of protecting the community from the ravages of gun violence.

A unique feature of the rights dispute in gun control is the protection of the individual civil “right to keep and bear arms” specified in the Second Amendment. Whether the Second Amendment defends the rights of individuals to own firearms or the right of states to keep a well-armed militia is a highly contentious point. That most judicial decisions have upheld local ordinances restricting gunownership, though, has had little influence on the average citizen’s understanding of the Second Amendment as protecting an absolute individual right?’ The ability of the NRA to frame the issue results in a gun control debate that casts everything in absolute terms -unlimited ownership versus a complete firearm ban. Vocal critics portray sensible and limited controls as the first step toward a totalitarian society, scaring the public with images of an inevitable Orwellian future if even reasonable legislation is enacted.

co-opted rhetoric threatens a traditional sphere of public health Co-opting the rights argument is not a unique feature of current public health controversies. Even in the area of disease control, opponents are using rights arguments against such efforts. Although the human rights rhetoric that disease control is a basic entitlement is generally accepted today, some individualists are challenging the traditional role of public health in undertaking population-based vaccination efforts. Dissenters co-opt rights arguments to challenge disease control in the same way tobacco and gun control opponents have. Typically, these dissenters are individuals who feel that vaccinations are an infringement on their individual civil rights and their children’s?1 They are focused solely on nega-

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tive rights and dismiss positive human rights as secondary because they perceive their personal risks as outweighmg the benefits to society. Since children cannot enroll in school without vaccination, some parents refuse to comply by home- schooling their children. Using individual rights arguments, groups such as the National Vaccine Information Center have argued that it is “immoral to write off an unknown number of children as expendable in the name of the greater good to justify public health ~olicy.”~’

Public health regulations are based on population data and designed to achieve the greatest good for the greatest number. Yet that collective goal conflicts with the ethos of individualism now dominating social policy. It also raises problems with the increasing number of people unwilling to submit voluntarily to vaccination programs. Because of well- publicized (though unfounded) fears of developing autism from the measles, mumps, and rubella (MMR) vaccine, many states have enacted legislation permitting medical or religious exemptions from vaccination requirements for children entering school. Public health agencies must balance between their mandate to protect communities from the spread of contagious diseases without unduly burdening individuals who do not want to be protected (i.e., vaccinated). That is, the uninfected have an individual right to remain uninfected and take advantage of the vaccination exemption. But this is never just an individual decision because there are serious public health implications for society should the exempted individual contract and communicate the disease to o t h a There- fore, representing both interests simultaneously is challenging.

A subtext to defining the conflict is the perception that public health’s current focus on individual behaviors, such as tobacco use, has degenerated into a paternalistic moral crusade, One of the key problems facing public health pro- fessionals and advocates is how to present the case for human rights in a way that does not appear to intrude excessively into individual freedoms, to be paternalistic, or to be based largely on abstract moral propositions. The failure to con- struct a precise definition of human rights has allowed opponents of public health to use one component of human rights, negative rights, to contest another component of human rights, basic entitlements. Another key problem is the tendency to frame every public health initiative as a “right.” If everything is a right, the term loses some of its moral authority and allows opponents to belittle public health endeavors.

Law and human rights Given that human rights language can be co-opted, an important set of questions to consider is whether and how human rights concepts can be used to further public health. One strategy is to embed human rights in U.S. law as positive rights. For several reasons, it may be difficult, and probably insufficient in any event, to rely on either the courts or the

legislative branch to frame a human rights perspective, at least in the form Mann and others have articulated.

The civil rights movement in the 1960s, for example, was very much a movement to assert community rights, using the courts to redefine African-Americans’ rights. Its successes changed the strategies of activists and public health advocates. With the legal victories of the civil rights movement, liberals began to pursue their goals through the COLII~S?~

This legal strategy is still pursued today by public health advocates who view lawsuits as one way to force top-down change, as in class action lawsuits against tobacco compa- n i e ~ . ~ ~ But there have been equal victories for conservatives, who now use a sympathetic Supreme Court to emphasize individual and property rights at the expense of the government’s ability to act on behalf of the community Thus, the problem of co-opting has moved into the courts.

The fight for positive rights in the courts Not surprisingly, there is considerable political and schol- arly controversy over the appropriateness and capacity of the judiciary to resolve social problems.3s For example, one author has developed a systematic conceptual approach to analyzing the social change implications of judicial decisions in civil rights and abortion cases, and has produced a useful model for examining the role of the courts in reducing health ineq~ities.~~ This model describes two very different ver- sions of judicial involvement in social policy disputes?’

The dynamic view is that the courts are effective in gen- erating social change. Proponents of the dynamic view argue that as independent institutions, courts can issue rulings (es- peaally constitutional interpretations) that directly induce policy change when other institutions are politically stymied. The dynamic view postulates that courts can also induce policy change indirectly by educating the public, stimulating public debate, and serving as a catalyst for change?8 In this way, the dynamic view takes into account the courts’ ability to innuence the nature of the policy agenda, if not directly dect its outcome.

In contrast, the constrained view holds that inherent limitations inhibit courts from leading social change. Under the constrained view, courts face three structural limitations: (1) constitutional limits on creating rights; (2) the lack of inde- pendence from other branches of government; and (3) the inability to establish, implement, and enforce policies. This view is quite skeptical about courts as policymakers, arguing that judicial policymaking is undesirable, primarily because “the judicial process is a poor format for the weighmg of alternatives and the calculation of costs.”39 Judicial capacity to make policy is limited relative to other institutions, especially given judicial limitations on implementation and enforcement, the problem of case-by-case decision-making, and constraints on agenda-setting. Nevertheless, this view st i l l recognizes that judicial decisions on statutory interpretation indeed help shape public policy.

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In favor of the constrained view, there are several problems with defining rights in the courts through conflicts between one individual or group and another individual or group. First, the judiciary has been very reluctant to establish new rights. Even in the expansive Warren Court era, the Supreme Court has consistently refused to find a right to welfare, education, housing, health care, and so forth.4O It seems unlikely that the courts will expand on their rights jurisprudence any time soon, including using the human rights rhetoric in their decision-making.

Second, the courts have dealt extensively with issues of community rights. For example, the Supreme Court has cut back on who can sue to protect community rights - known as the doctrine of standing, In one case, the Court held, according to Mary Ann Glendon:

the Sierra Club had no standing to argue for pres- ervation of federal parkland as a shared natural resource. The only way the association could remain in court was to establish that particular individuals would be harmed by the recreational development proposal it was challenging.4l

In related areas of the law, including antitrust and hospital tax exemption cases, courts have mentioned “community benefit” as an important policy goal, but have consistently failed to analyze what the term

Third, as noted above, conservative groups are now using a legal strategy to establish the preeminence of individual and property rights. In recent years, they have been quite successful in reframing the debate in the courts. In particular, the Supreme Court has advanced the notion of federalism (dual sovereignty between the states and the federal government) in ways beneficial to the states. The Court has struck down several congressional statutes that it held intruded on legitimate state ~overeignty.~~

On the other hand, at least one court has explicitly used a community rights rationale to uphold a local injunction barring gang association and activity in crime-infested neigh- borhoods. In the case of People ex rel. Gallo v. ACUM,* the California Supreme Court ruled that an injunction was necessary to protect homeowners whose communities had been taken over by gang members. Against the arguments that the injunction violated the gang members’ First Amendment rights, the court explicitly used a community rights perspective to prevail over the intrusion into individual rights. While civil libertarians expressed considerable concern about the decision, the court’s reasoning would support a range of public health arguments.

Expanding positive rights through legislation From an institutional perspective, a better venue for dealing with the tension between individual and community rights


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may be the legislative branch. But this too fails to balance individual rights with considerations of community rights. If groups and individuals partake in the legislative process to secure their own protections, why would legislators act to protect community rights when few of the many participants are concerned with these rights? It would be political sui- cide. Here, again, the legal system is unable to balance individual rights with considerations for the broader community.

Even the most important public health objectives from a national perspective are not likely to be accomplished through federal legislation mandating state compliance or subjecting states to judicial remedies for their failure to meet national standards. Not only are federal courts empowered to strike such legislation down, the federal political process is not likely to pass such legislation without major compromises in favor of individual rights. It is unlikely that lawmakers will agree on legislation that takes major steps to protect community rights and limits individual rights, given the current individualist ethos and political realities they face. The limits of the legislative process to ensure social welfare is demonstrated in the long fight that led to the few welfare programs that do exist and the inability (or unwillingness) of lawmakers to expand them. A good example is the failure to enact national health insurance. Difficulties and inadequa- cies with the legislative process are what led to the reliance on judicial activism in the first place.

In the end, both branches of our legal system fall short in supplying adequate laws to protect the collective welfare. The courts are unable and ill-suited and legislatures are unlikely to address such problems.

SOCIAL MOVEMENTS AND T~IE PUBLIC k m VOICE An alternative to a legal strategy based on human rights rhetoric is to develop a strategy based on the role of social movements. According to Constance Nathanson, social movements are “conscious, collective, organized attempts to bring about social change.”4s Public health is as much a social movement involved in framing the public understanding of issues as it is a political effort to legislate collective well- being. As a social movement, public health is charged with changing perceptions of what is just and what is good. The social movement drives the political efforts to embed entitlements in legal institutions.

Why social movements? The importance of social movements in changing policy re- mains controversial. A major problem, as Nathanson points out, is the difficulty of measuring whether social movements have succeeded in meeting their

Certainly, a case can be made that public health social movements are not particularly effective -witness the inability to convince states to use the tobacco settlement funds

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for tobacco control programs. But public health social movements are hardly moribund, as active tobacco control coalitions and newly emerging gun control groups can attest. In the latter part of the twentieth century, public health advocates became interested and active in the new areas of personal behavior as a determinant of disease and used the legal and political process to promote social change. Nonetheless, it is legitimate to ask whether social movements will fare any better in using human rights rhetoric to influence public health policy. We see reasons for both opti- mism and pessimism.

In essence, social movements strive for cultural change that will subsequently be reflected in legislation codifying the underlying cultural shift. To be successful, social movements probably need a moral basis to gain wider attention and stimulate cultural change. Our hypothesis is that human rights rhetoric can be highly valuable in providing an organi- zational rationale for expanded public health social rno~ernents.~’ In contrast to political movements that involve a contest between competing conceptions of rights, social movements strive to change the public’s understanding of and response to any given problem. Social movements still rely on human rights language to support their objectives, but do not rely exclusively on this rhetoric.

Tobacco control has been a success story over the past 20 years because advocates built and nurtured a strong social movement. There is considerable evidence to suggest that voluntary measures to eliminate smoking are currently increasingly prevalent as complements to clean indoor air l a~s .4~ A generation ago, nearly 43 percent of the public smoked cigarettes. That figure is now 25 percent and de~lining.4~ The primary reason for the secular change is a change in cultural attitudes. Take the implementation of clean indoor air laws as an example. For a variety of reasons, these laws are basically unenforceable and work only if accepted by the public. To a surprising degree, such laws generate widespread, though certainly not complete, public acceptance and are essentially self-enforcing.sO To take one other example, tobacco control advocates effectively used evidence of the harms from environmental smoke, especially to children, to enact numerous local laws during the 1990s prohibiting smoking in public place^.^'

Efforts at change must therefore be aimed at changing the culture around an issue. From there, legal change is more likely. Political and legal battles focus too heavily on the rights terrain. Several tobacco and gun control studies (see be- low) have demonstrated that public health has been more successful in fighting opponents of public health at the local level by changing culture. These studies demonstrate that well-organized local public health coalitions can blunt opponents’ greater political leverage at the state level by influencing changes in the local culture (i.e., changing public attitudes) and by influencing the adoption of public health laws and policies.

Focus efforts locally Nathanson points the way to a potentially more valuable organizing principle that can be an effective complement to the human rights approach: “Public health policies are adopted in response to perceived danger.”52 In our view, social movements based at the local and state levels (with support from national organizations) are best positioned to identify those dangers and mobilize public support for appropriate policy changes. Doing so will, we expect, play a significant role in social and cultural change favoring public health interventions.

In current public health battles, particularly over gun and tobacco control, industry interest groups tend to have less power to influence the political process at the local level.S3 Research on tobacco control and gun control demonstrates the necessity of working on the local 1e~el.s~ The decentral- ized American government and plurality of opinions make it difficult to implement top-down change. Focusing at the local level allows public health advocates to address the particular characteristics of a community. The advantage that tobacco control and gun control opponents have is years of involvement in policymaking at the federal and state levels, where they have more political power and have been more effeaive than public health advocates. Opponents of tobacco and gun control have been much less effective on the local level.ss Thus, both the tobacco and gun industries have been able to enact permissive state laws that would preempt local laws and avoid the more difficult and numerous local political battles.

Additional support for a local strategy is the reemer- gence of federalism as a legal doctrine. Conceptually, federalism simply refers to cooperative sovereignty between the federal government and the states. As practiced, however, it has a decidedly antifederal government tenor and conveys the message that centralized power is to be dis- trusted. On one level, federalism fuels the public’s increasing distrust of government at any level and asserts the primacy of individual rights and freedoms. On another level, it provides greater authority for state and local governments to respond to social change uninhibited by the federal government.

It is undoubtedly easier to enact laws that might force social change with a strong central government, but several examples suggest that social movements might be more effective.s6 Nathanson describes how governmental structure and public opinion are important indicators of the success of regulati~n.~’ Her comparison of tobacco control in France and the United States shows that France, after a long period of inaction, enacted antismoking regulations very quickly. The prolonged battle taking place in this country did not occur in France, where the strong central government allowed for quicker legislative action. However, because there was no equivalent cultural shift, the French regulations were largely ignored and public behaviors changed very little.

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In the United States, much of the change in smoking regulations occurred after a prolonged struggle by public health advocates, during which the public was introduced to and persuaded by public health arguments. As a result, secondhand smoke is seen in this country not only as a health risk, but a nuisance. The common acceptance of the health risks of secondhand smoke has developed over the course of a lengthy smoking regulation debate. The period of time necessary to enact tobacco control regulations in the United States was important in reshaping public opinion and providing the public with an understanding of the issue. The high levels of compliance with smoking restrictions are at- tributable to social and cultural change. As a result, the French and American experiences reflect different social responses to restrictions on individual freedoms.

A STRONG PUBLIC HEALTH VOICE Just as it may be difficult to enshrine the concept of health and human rights in law, it may be equally difficult to achieve public health objectives through social movements. The question is how to overcome the challenges posed for both strategies. To be successful, both approaches need assistance from a stronger public health voice. What’s missing in public health debates right now is a strong and persuasive public health voice that can effectively articulate a rationale behind public health initiatives. By public health voice, we mean the presence of a defined public health message that influ- ences and shapes policy outcomes. The absence of a public health voice means that opponents of public health intervention usually control the agenda. This absence has also contributed to public health’s decline as a national priority. Whether the initiative is to embed human rights as a structural component of the law or to create social movements to achieve policy changes, the absence of a strong public health voice is a detriment to achieving these objectives.

Focusing on creating a strong and persuasive public health voice is important for several reasons: Its absence presently allows opponents to frame the issues, especially by co-opting the rights arguments. By remedying this, a public health voice can play a vital role in promoting social change. The absence of a public health voice from policy debates is therefore dou- bly detrimental, in part because of its potential role in stimulating social change. Finally, a public health voice can play a vital role in shaping the public’s understanding of health-related issues. Finding this voice presents an opportunity to restore the broad conception of public health to the national agenda. Even without a strong voice, public health organizations remain important sources for health and medical information. The public relies on voluntary associations, such as the American Heart Association and American Lung Association, and governmental organizations such as the Centers for Disease Control and Prevention for information regarding infectious diseases and chronic illnesses.

When public health groups take a stake in an issue, as with tobacco and firearms, advocates are attempting to shape public opinion and to exert their influence directly on policymakers. If public opinion reflects the public health voice, policymakers cannot ignore it. But if the public health voice is absent, policymakers will not be compelled to consider public health strategies. Because the rights terrain is contestable, the presence of a public health voice in the debate is an important counterbalance to public health opponents. The absence of a public health voice in many policy debates has been an impediment to both a general understanding of public health remedies and acceptance by the public at large and policymakers. Thus, opponents of public health are able to frame the policy context and understanding of the issues.s*

Certainly, there are serious impediments to developing a stronger public health voice. For example, some of the stron- gest advocates are tied to state or federal funding, with explicit or implicit strictures against public lobbying. Political constraints may also limit governmental agencies from being more forthright in debates over the behavioral determinants of disease, and the large voluntaries often remain silent because of internal politics. For advocates of a health and human rights approach, the absence of a public health voice is particularly troublesome given the ability of powerful industries to shape public opinion.

A related difficulty is that the dilemma of defining human rights and health is confounded by the problem of defining public health:

by its very nature, public health is diffuse, encom- passing a wide range of activities, from surveil- lance to providing health care of last resort. This diffuse nature makes it hard to craft a succinct message against an often monolithic policy oppo- nent. For example, in thinking about the issue of youth violence as a public health issue, the opposing gun lobby has an easy message to articulate. Just mentioning criminal justice conjures a set of arguments that fall neatly into place. But if one asks a legislature to pursue a public health approach to youth violence, the most likely response will be to ask what constitutes a public health appr~ach?~

Leadership from public health alone will not guarantee the enactment of strong public health measures. But the failure of public health organizations to provide leadership and a clear and unmistakable message that state legislatures must address public health concerns minimizes the likelihood that such measures will be enacted. For any strategy to imbue, and for the public debate with human rights rhetoric to succeed, the public health voice needs to be much stronger.

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TheJoumal of Law, Medicine e5. Ethics

CONCLUSION

The spirit of improvement is not always a spirit of liberty, for it may aim at forcing improvements on an unwilling people; and the spirit of liberty, in so far as it resists such attempts, may ally itself locally and temporarily with the opponents of improvement; but the only unfailing and permanent source of improvement is liberty, since by it there are as many possible independent centers of improvement as there are individuals.60

John Stuart Mill summarizes the difficulty of using laws to further public health initiatives: They may involve coer- cion, and hence conflict with individual freedom. There is little disagreement that rights are not absolute. Writings on health and human rights consistently recognize that individual rights can be limited to protect public health. But there is a large gap between the conception of individual civil rights in the United States (i.e., as negative rights) and the health and human rights formula that balances positive and negative rights. The difficult question of how to surmount the co- opting problem is at the core of this article. Though public health offers benefits that more than offset the decreases in individual freedom, opponents and the public often do not recognize or value the gains in human rights brought about by public health.

Before human rights rhetoric can achieve the goals proponents expect, we need a clearer formulation of what the term “human rights” means. For human rights to play a greater role in social policy, let alone a dominant role, we need to understand better how it can help bridge the gap between individual and community rights. We also need a framework and definition of human rights that takes into account the potential for human rights rhetoric to be co-opted by public health’s opponents.

As a corollary, we need to devise a research agenda into which human rights arguments are likely to resonate with the public and how they can be incorporated into public health social movements. We also need to develop a strategy for dealing with the co-opting problem. What is the most effective response to industry’s co-opting of public health initiatives? How can a public health social movement be organized to effectively convey the public health message while simultaneously deflecting co-option? In short, what is the most effective strategy for restoring public health as a national priority?

For human rights to be an effective part of social policy in the United States, it must be rooted in both the legal system and social movements. It may be easier for social movements to use human rights rhetoric to achieve their goals, but that should not obscure the need to make human rights an integral part of the legal system. Health and human rights rhetoric can be most effective as part of a broader

social movement to help the public understand its benefits and the real risks of an exclusive focus on individual civil rights to guide policy. In the end, we will not make adequate progress toward health and social equality until basic human rights are elevated to the core of society’s values.

REFERENCES 1. See the Model State Emergency Health Powers Act (De-

cember 21,2001), available at < http://www.publichealthlaw.net/ MSEHPA/MSEHPM.pdf>. For a critique of the Model Act, see G.J. Annas, “Bioterrorism, Public Health, and Civil Liberties,” N. Engl. 1. Med., 346 (2002): 133742 (arguing that civil liberties and the need to respond to public health emergencies are not incompatible).

2. We are not addressing the issue of a universal definition of human rights, but instead looking at human rights rhetoric in national debates and examining the effect of different cultural and social interpretations and claims of human rights for creating civil rights. Our interest lies in the embodiment of human rights in legal institutions and the use of different interpretations of human rights to contest public health policies.

3. To be sure, there are myriad reasons why public health arguments are not succeeding, including a free market ideology that now dominates public policy and debate. Whatever the reason, our interest here is in how opponents have successfully co-opted individual rights rhetoric.

4. S. Burris, “Introduction: Merging Law, Human Rights, and Social Epidemiology,” Journal o f b w , Medicine & Ethics, 30, no. 4 (2002): 498-509. The debate over the role of human rights is not limited to domestic policy. An ongoing debate has been the extent to which human rights should influence an aspect of foreign policy. See, eg., R. Bernstein, “To Butt in or Not in Human Rights: The Gap Narrows,” New York Emes, August 4, 2001, at A-15, A-17.

5. J.M. Mann et al., Health and Human Rights: A Reaa’er (New York: Routledge, 1999).

6. L.O. Gostin and Z. Lazzarini, Human Rights and Public Health in the AIDS Pandnnic (New York: Oxford University Press, 1997): at xiv.

7. Seeid. 8. Gostin raises a s M a r concern in noting, “there is consider-

able imprecision in the way that modem scholars and practitioners use the language of human rights.” L.O. Gostin, “Public Health Ethics and Human Rights: A Tribute to Jonathan Mann,” Journal of Lutq Medicine &Ethics, 29, no. 2 (2001): 121-30, at 126.

9. For similar concerns, see L.O. Gostin, “A Vision of Health and Human Rights for the 21st Century: A Continuing Discus- sion with Stephen I? Marks,”]ournal of Law, Medicine & Ethics, 29, no. 2 (2001): 13040.

10. J.S. Mill, On Liberty, E. Rapaport, ed. (Indianapolis: Hackett, 1978): at 5.

1 1. M.A. Glendon, Rights Talk: The Impoverishment of Politi- cal Discourse (New York: Free Press, 1991) (quoting from the case ofJackson v. City of]oliet, 715 E2d 1200 (7th Cir. 1983)). For the classic distinction between negative and positive freedoms, see I. Berlin, “Two Concepts of Liberty,” in I. Berlin, ed., The Proper study ofMiznkind (New York: Farrar, Straus, and Giroux, 1998): at 191-242.

12. Presumably, the government has the power and authority to provide basic human entitlements; it just has no obligation to do so.

13. J.M. Bruce and C. Wdcox, eds., The Changing Politics of

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Gun Control (New York: Rowman & Littlefield Publishers, Inc., 1998): at 7. See also R.J. Spitzer, ThePoliticsof Gun Control (New Jersey: Chatham House Publishers Inc., 1995).

14. C.A. Nathanson, “Disease Prevention as Social Change: Toward a Theory of Public Health,” Population and Development Review, 22 (1996): 609-37, at 614 (discussing the “framing process” as one of three classes of variables that affect social movements; political opportunity and internal organization are the other two).

15. See, e.g., J. Sullum, For Your Own Good (NewYork: The Free Press, 1998). ’

16. Id. 17. Id. 18. Id. at 274. 1 9. Assessing the Public Sentiment Regarding Indiuidual Rights,

anonymous tobacco industry memo (April 4, 1977), available through < http://tobaccodocuments.org/> .

20. Id. The first appearance of smokers’ rights occurred in 1976 in the Tobacco Reporter, a trade publication. Philip Morris began publishing PhilipMorris Magazine in 1986 and R.J. Reynolds started Choice in 1987, both of which were used to drum up fears of unfair treatment, job discrimination, government intrusion, invasion of privacy, limitations of choice, and infringement on smokers’ rights. These publications provided skills and strategies to smokers to combat tobacco control initiatives and to create the impression that control advocates were attempting to limit a socially acceptable behavior. M.T. Cardador, A.R. Hazan, and S.A. Glantz, “Tobacco Industry Smokers’ Rights Publications: A Content Analysis,”Am~‘can]oumal of Public Health, 85 (1995): 1212-17 (noting that tobacco industry representatives covertly formed groups such as the National Smokers Alliance to support smokers’ rights and attack tobacco control initiatives).

21, Assessing the Public Sentiment Regarding Individual Rights, supra note 19.

22. Philip Morris, Great American Smoker’s Bill o f Rights (1986).

23. PD. Jacobson, J. Wasserman, and K.R. Raube, “The Poli- tics of Anti-Smoking Legislation: Lessons from Six States,”Joumai ofHealth Politics, Policy and Law, 18 (1993): 787-819.

24. Id. 25. S. Magzamen and S.A. Glantz. “The New Battleground:

California’s Experience with Smoke-free Bars,” American Jour- nal of Public Health, 91 (2001): 245-52, at 249.

26. Id. 27. F. Zimring, Continuity and Change in the Americun Gun

Debate, UC Berkeley Public Law and Legal Theory Working Pa- per No. 50 (Berkeley: U.C. Berkeley, 2001).

28. Spitzer, supra note 13, at 100. 29. Bruce and Wilcox, supra note 13, at 100. 30. R. Singh, “Gun Control in America: Continuity and

Change,” Parliamentary Affairs, 52 (1999): 1-18, at 6, 7. 3 1. S. King, “Vaccination Policies: Individual Rights (upsilon)

Community Health,” British Medicul]ournal, 319 (1999): 1448- 49; R. Smith, “The Discomfort of Patient Power,” BritishMedical Journal, 324 (2002): 497-98.

32. A. Allen, “Questions for Barbara Loe Fisher; A Shot in the Dark,” New York Emes Magazine, May 6, 2001, at 31 (an interview with Barbara Loe Fisher, president of the National Vaccine Information Center). Such attitudes have led several state legislatures to enact exemptions from mandatory vaccination based on religious or other objections. On the other hand, the US. Supreme Court, inJacobson v. Massachusetts, 197 U.S. 11 (1909, upheld mandatory vaccination programs.

33. Glendon, supra note 11, at 6-7, 94-96, 155 (discussing at length how Supreme Court decisions have shaped modern


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conceptions of rights). 34. ED. Jacobson and K.E. Warner, “Litigation and Public

Health Policy: The Case of Tobacco Contro1,”Joumal of Health Politics, Policy and Law, 24 (1999): 769-804.

35. This analysis borrows liberally from Jacobson and Warner, supra note 34.

36. G.N. Rosenberg, The Hollow Hope: Can Courts Bring About social Change? (Chicago: University of Chicago Press, 1991); G.N. Rosenberg, “The Real World of Constitutional Rights: The Supreme Court and the Implementation of the Abortion Deci- sions,” in L. Epstein, ed., Contempluting Courts (Washington D.C.: Congressional Quarterly, 1995).

37. Rosenberg, a proponent of the constrained view, argues that the presumed political and social changes stemming from civil rights, abortion, and environmental litigation have been illu- sory. See Rosenberg, The Hollow Hope, supra note 36. Instead, Rosenberg concludes that changes in public opinion and action by elected officials, rather than court decisions, are required to engender significant social change. See Rosenberg, The Hollow Hope, and “The Real World of Constitutional Rights,” supra note 36. Rosenberg’s conclusions and model remain controversial. For example, McCann criticizes the approach for ignoring “the many more subtle, variable ways that legal norms, institutions, actors and the like do matter in social life.” M. McCann, “Causal versus Constitutive Explanations (or, On the Difficulty of Being So Positive),” LawandSocialInquiry, 21 (1996): 457-82, at 472. For our purposes, Rosenberg’s framework simply provides a useful starting point.

3 8. M.W McCann, Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983).

3 9. D.L. Horowitz, The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977): at 357. See also R.S. Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washing- ton, D.C.: Brookings Institution, 1983); R.S. Melnick, Between the Lines: Intetpreting Welfare Rights (Washington, D.C.: Brookings Institution, 1994). Rosenberg studied the effects of judicial decisions in civil rights, abortion, and environmental cases. See Rosenberg, The Hollow Hope, supra note 36. Horowitz reached similar results in studying the effects of leading cases in police practices, education, juvenile justice, and the Model Cities program. Melnick studied environmental litigation (Regulation and the Courts, id.), welfare, education for handicapped persons, and the food stamp program (Between the Lines, id.).

40. H. Hershkoff, “Positive Rights and State Constitutions: The Limits of Federal Rationality Review,” Haruard Law Review, 112 (1999): 1131-96, at 1132-33.

41. Glendon, supra note 11, at 112. 42. See, e.g., FTC v. Butterworth Health Corporation, 946 F.

Supp. 1285 (ED. Mich. 1996); Utah County v. Intermountain Health Cure, Inc., 709 E2d 265 (Utah 1985).

43. For a more extensive analysis, see ED. Jacobson and E. Selvin, “Health, Inequality, and the Courts,” in L. Brown, L. Jacobs, and J. Morone, eds., Inequality and the Politics of Health: How PbliticsMakes Americans Sick (Boulder: Westview Press, 2002, forthcoming).

44. People ex rel. Gallo v. Acuna, 929 E2d 596 (Cal. 1997). 45. Nathanson, supra note 14, at 613. 46. C A Nathanson, “Social Movements as Catalysts for Policy

Change: The Case of Smoking and Guns,” Journal of Health Politics, Policy and Law, 24 (1999): 421-88.

47. Id. Nathanson does not discuss this aspect in her model. 48. ED. Jacobson and L. Wu, “The Enactment of Clean In-

door Air Laws: Trends and Policy Implications,” in R.L. Rabin and S.S. Sugarman, eds., Regulating Tobacco: Premises and Policy Op- tions (New York: Oxford University Press, 2001).

The journal of Law Medicine &Ethics

49. ED. Jacobson et al., Combating Teen Smoking: Research and Policy Strategies (Ann Arbor: University of Michigan Press, 2001): at 15.

SO. ED. Jacobson and J. Wasserman, ”The Implementation and Enforcement of Tobacco Control Laws: Policy Implications for Activists and the Industry,” Journal of Health Politics, Policy and Law, 24 (1999): 567-98.

51. Jacobson, Wasserman, and Raube, supra note 23. 52. Nathanson, supra note 46, at 445. 53. Jacobson, Wasserman, and Raube, supra note 23. 54. See, e.g., id.; B. Samuels and S.A. Glantz, “The Politics of

LocalTobacco Control,”JAMA, 266, no. 15 (1991): 2110-17; B. Samuels et al., “Philip Morris’ Failed Experiment in Pittsburgh,” ] o ~ o f H e a l t h P o l i t i s , Polky andlaw, 17, no. 2 (1992): 329-51.

55. Jacobson, Wasserman, and Raube, supra note 23. 56. There are often lags between public opinion and policy

action due to political divisions in government and because interest groups hamper government’s ability to act. Public policy is not merely the ratification of public opinion; laws also help to shape public opinion. To take solely a Weberian or a culturalist approach fails to recognize the dynamic process that underlies social change.

57. Nathanson, supra note 14, at 612-14. 58. ED. Jacobson and J. Wasserman, “Editorial -Missing in

Action: The Public Health Voice in Policy Debates,”]ournal of Public Health Management Practice, 7 (2001): ix-x.

59. Id. atx. 60. Mill, supra note 10, at 67.

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co-opting the health and human rights movement

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