Co-Opting the Health and Human Rights Movement

See the Model State Emergency Health Powers Act (December 21, 2001), available at <http://www.publichealthlaw.net/MSEHPAZMSEHPA2.pdf>. For a critique of the Model Act, see Annas G.J. , “Bioterrorism, Public Health, and Civil Liberties,” N. Engl. J. Med., 346 (2002): 1337–42 (arguing that civil liberties and the need to respond to public health emergencies are not incompatible).

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.

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.

Burris S. , “Introduction: Merging Law, Human Rights, and Social Epidemiology,” Journal of Law, 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, e.g., Bernstein R. , “To Butt in or Not in Human Rights: The Gap Narrows,” New York Times, August 4, 2001, at A-15, A-17.

Mann J.M. , Health and Human Rights: A Reader (New York: Routledge, 1999).

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

See id.

Gostin raises a similar concern in noting, “there is considerable imprecision in the way that modern scholars and practitioners use me language of human rights.” Gostin L.O. , “Public Health Ethics and Human Rights: A Tribute to Jonathan Mann,” Journal of Law, Medicine & Ethics, 29, no. 2 (2001): 121–30, at 126.

For similar concerns, see Gostin L.O. , “A Vision of Health and Human Rights for the 21st Century: A Continuing Discussion with Stephen P. Marks,” Journal of Law, Medicine & Ethics, 29, no. 2 (2001): 130–40.

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

Glendon M.A. , Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991) (quoting from the case of Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983)). For the classic distinction between negative and positive freedoms, see Berlin I. , “Two Concepts of Liberty,” in Berlin I. , ed., The Proper Study of Mankind (New York: Farrar, Straus, and Giroux, 1998): at 191–242.

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

Bruce J.M. and Wilcox C. , eds., The Changing Politics of Gun Control (New York: Rowman & Littlefield Publishers, Inc., 1998): at 7. See also Spitzer R.J. , The Politics of Gun Control (New Jersey: Chatham House Publishers Inc., 1995).

Nathanson C.A. , “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).

See, e.g., Sullum J. , For Your Own Good (New York: The Free Press, 1998).

Id. at 274.

Assessing the Public Sentiment Regarding Individual Rights , anonymous tobacco industry memo (April 4, 1977), available through <http://tobaccodocuments.org/>.

Id. The first appearance of smokers' rights occurred in 1976 in the Tobacco Reporter, a trade publication. Philip Morris began publishing Philip Morris 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. Cardador M.T. Hazan A.R. , and Glantz S.A. , “Tobacco Industry Smokers' Rights Publications: A Content Analysis,” American Journal 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).

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

Morris Philip , Great American Smoker's Bill of Rights (1986).

Jacobson P.D. Wasserman J. , and Raube K.R. , “The Politics of Anti-Smoking Legislation: Lessons from Six States,” Journal of Health Politics, Policy and Law, 18 (1993): 787–819.

Magzamen S. and Glantz S.A. “The New Battleground: California's Experience with Smoke-free Bars,” American Journal of Public Health, 91 (2001): 245–52, at 249.

Zimring F. , Continuity and Change in the American Gun Debate, UC Berkeley Public Law and Legal Theory Working Paper No. 50 (Berkeley: U.C. Berkeley, 2001).

Spitzer , supra note 13, at 100.

Bruce and Wilcox , supra note 13, at 100.

Singh R. , “Gun Control in America: Continuity and Change,” Parliamentary Affairs, 52 (1999): 1–18, at 6, 7.

King S. , “Vaccination Policies: Individual Rights (upsilon) Community Health,” British Medical Journal, 319 (1999):1448–49; Smith R. , “The Discomfort of Patient Power,” British Medical Journal, 324 (2002): 497–98.

Allen A. , “Questions for Barbara Loe Fisher; A Shot in the Dark,” New York Times 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 U.S. Supreme Court, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), upheld mandatory vaccination programs.

Glendon , supra note 11, at 6–7, 94–96, 155 (discussing at length how Supreme Court decisions have shaped modern conceptions of rights).

Jacobson P.D. and Warner K.E. , “Litigation and Public Health Policy: The Case of Tobacco Control,” Journal of Health Politics, Policy and Law, 24 (1999): 769–804.

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

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

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 illusory. 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.” McCann M. , “Causal versus Constitutive Explanations (or, On the Difficulty of Being So Positive),” Law and Social Inquiry, 21 (1996): 457–82, at 472. For our purposes, Rosenberg's framework simply provides a useful starting point.

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

Horowitz D.L. , The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977): at 357. See also Melnick R.S. , Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983); Melnick R.S. , Between the Lines: Interpreting 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.).

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

Glendon , supra note 11, at 112.

See, e.g., FTC v. Butterworth Health Corporation , 946 F. Supp. 1285 (W.D. Mich. 1996); Utah County v. Intermountain Health Care, Inc., 709 E2d 265 (Utah 1985).

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

People ex rel. Gallo v. Acuna , 929 E2d 596 (Cal. 1997).

Nathanson , supra note 14, at 613.

Nathanson C.A. , “Social Movements as Catalysts for Policy Change: The Case of Smoking and Guns,” Journal of Health Politics, Policy and Law, 24 (1999): 421–88.

Id. Nathanson does not discuss this aspect in her model.

Jacobson P.D. and Wu L. , “The Enactment of Clean Indoor Air Laws: Trends and Policy Implications,” in Rabin R.L. and Sugarman S.S. , eds., Regulating Tobacco: Premises and Policy Options (New York: Oxford University Press, 2001).

Jacobson P.D. , Combating Teen Smoking: Research and Policy Strategies (Ann Arbor: University of Michigan Press, 2001): at 15.

Jacobson P.D. and Wasserman J. , “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.

Jacobson Wasserman , and Raube , supra note 23.

Nathanson , supra note 46, at 445.

Jacobson Wasserman , and Raube , supra note 23.

See, e.g., id.; Samuels B. and Glantz S.A. , “The Politics of Local Tobacco Control,” JAMA, 266, no. 15 (1991): 2110–17; Samuels B. , “Philip Morris' Failed Experiment in Pittsburgh,” Journal of Health Politics, Policy and Law, 17, no. 2 (1992): 329–51.

Jacobson Wasserman , and Raube , supra note 23.

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.

Nathanson , supra note 14, at 612–14.

Jacobson P.D. and Wasserman J. , “Editorial — Missing in Action: The Public Health Voice in Policy Debates,” Journal of Public Health Management Practice, 7 (2001): ix-x.

Id. at x.

Mill , supra note 10, at 67.