## 1. What Makes Public Health, And Therefore Public Health Ethics, Distinctive?



There is no standard way of organizing the ethics of clinical
practice, public health, and biomedical science. These different
fields are often presented as discrete areas of inquiry that fall
under the broader, umbrella term of bioethics, but sometimes bioethics
is presented as the equivalent of medical ethics or in contrast to
public health or population-level bioethics. Whichever approach is
preferred, a key question remains: what distinguishes public health
ethics from these other fields, and especially from the ethics of
clinical care? The answer lies in two characteristics of public health
that make it distinctive and that mark morally relevant differences
between public health and clinical care- first, public health's
focus on the health of populations and second, the large role that
government plays in this pursuit.


### 1.1 Population Focus



The first and perhaps most defining characteristic of public health is
that it is committed to advancing health at the level of populations.
By contrast, in clinical practice, the focus is on the health of each
patient, as an individual. While health is primarily understood as a
private good in clinical care, in public health, health is a good of a
group or collective that, in some sense, constitutes the public.



Public health's population focus necessitates that it deals only
with aggregated health concerns when setting goals and assessing
outcomes. This need in public health to aggregate - and
therefore obscure individual or even sub-group - interests in
health is, in turn, one of the reasons why so much of the literature
in public health ethics engages questions of justice. We take up some
of these questions in Section 2.



Public health's population focus also positions it well to lead
on the prevention of disease and injury (Rose 1985, Rose et al. 2008;
Childress et al. 2002; Faden, Shebaya, and Siegel 2019). Although
clinicians often incorporate preventive interventions in their
practice with patients, no other social institution is generally
recognized as so clearly having a prevention remit. Many public health
agencies, including in the US the Centers for Disease Control and
Prevention and the FDA's Center for Food Safety and Nutrition
are designed to prevent illness and injury at the population level.
Public health's commitment to prevention carries with it particular
moral challenges. Eliminating or mitigating harm that already exists
is sometimes viewed as being of greater moral importance - or
simply as more immediately motivating action - than long-term
strategies to prevent harm from materializing. Whether it is ethically
justifiable to privilege the interests of the currently ill, who are
often known and identifiable, over those of future people who cannot
now be identified is a paradigmatic challenge of justice in public
health ethics addressed briefly in Section 2.


#### 1.1.1 Who is the Public in Public Health?



While many of the moral challenges that arise from public
health's population health focus are primarily questions of
justice, in this Section and in Section 1.1.2 we consider some
challenges, including some conceptual challenges, that are not.



That the object of moral concern in public health is the public rather
than individuals (Rose 1985; Rose et al. 2008; Coggon 2012) raises a
conceptual question: what or who is the public? While interesting in
its own right, this question is also important because it informs
justificatory challenges that public health ethics has to address: who
is public health good for? Whose health are we concerned with, and
what sacrifices is it acceptable to ask of individuals in order to
achieve it? And why is public health a good worth promoting?



In attempting to answer these questions, it is worth beginning by
querying whether, as has been used so far, the terms
"public" and "population" are interchangeable
to designate the entity whose health is the object of public health
concern. Is there a significant conceptual difference, a difference in
moral valence, or a difference in attitude and orientation between
public health ethics on the one hand, and population-level health
ethics on the other? The literature presents three general ways of
denoting the object of public health: the community, the public, and
populations. In one sense, the most morally laden manner of
designating those who are subject to, and benefit from, public health
measures, is to think about them as a community (Beauchamp and
Steinbock 1999). Reference to "community" implies a
cohesive group, usually with a shared language, culture, history, and
geographical location. Characterizing the concern of public health as
being the health of the community renders more natural (and possibly
more plausible) appeal to the common good as a way of justifying
public health interventions.



Reference to "the public" shares some of those same
features but tends to be less morally laden. This is in part because
"the public" is somewhat more anonymous than "the
community" and does not necessarily signal a tight cultural
connection. Rather, it connotes a relatively discrete unit with some
common institutions and usually a shared political life. References to
the public as well as to the community may encourage the perception
that the good we are seeking to advance is that of a geographically
bounded unit, with community connoting stronger cultural associations,
and public connoting some kind of official political unit such as a
state or a country with geographically defined boundaries. One reason
to be hesitant to accept this characterization is its problematic fit
with some threats to health. Communicable diseases, for example, have
a way of ignoring national boundaries, and preventive measures in one
country may be futile if other countries do not follow
 suit.[2]



Characterizing the health we are trying to advance as that of
populations, by contrast, may minimize the implication that special
shared features or characteristics are needed in order for a group of
individuals to constitute a collective unit whose health can be of
concern. Because of that, it may lend itself more readily to an
internationalist, less inward-looking orientation: any population,
regardless of nationality or geographic location, has health interests
that ought to be attended to and advanced (Wikler & Brock 2007).
Populations can be more local or more global than a community or the
public. This way of speaking also may dilute the emphasis on national
borders as a way of delineating the scope of concern and provides more
flexibility in the object of concern for public health. In much the
same way, discussion of global health, as opposed to international
health, is seen as helpful in emphasizing a focus on the health needs
of all, as opposed to a focus on international cooperation and the
health needs of peoples in countries other than one's own. This is
not, of course, to say that those who prefer the term "public
health" to "population health" do not share a global
orientation. Indeed, the World Health Organization is generally
referred to as a global public health institution, and those who work
to promote health transnationally are referred to as public health and
not population health professionals. Indeed, although some see a
substantive conceptual divergence in ways of thinking about whose
health is to be protected and promoted, others see no conflict, at
least between the concepts of public health and population health. For
example, the Nuffield Council on Bioethics uses the term
"population health" to refer to the collective state of
health of members of a population and the term "public
health" to refer to efforts made to improve the political,
regulatory and economic environments that affect prospects for health.
So understood, the object of public health is the improvement of
population health (Nuffield Council on Bioethics 2007, p. XV).



Depending on the particular health challenge we are concerned with,
the public in question can be more local or more global than a single
country's population. National boundaries are relevant because
individual countries usually set policies and regulations, which vary
from country to country. They are also relevant for reasons having to
do with government control: countries report their data about
communicable disease outbreaks, the burdens of disease, and other
health indicators to global institutions such as the WHO on a
voluntary basis. Although International Health Regulations to which
196 countries (WHO 2014) are signatories provide an international
structure for global public health, as with much international law and
regulation, enforcement mechanisms are weak. The moral implications of
these practical limitations for public health are profound. The
structure of the problem is similar to environmental challenges such
as climate change, which, as we note in 1.3, is itself increasingly
being framed as a public health crisis. Some of the determinants of
ill health are not restricted by national boundaries, nor can they be
effectively addressed by any nation on its own.


#### 1.1.2 What is the Health in Public Health?



Regardless of how one specifies the contours of the public - as
a population, as a public, or as a more local community - a
distinct set of conceptual challenges central to public health ethics
concerns how to think about the nature of the health of the group and
how this differs from the health of individuals.



There are significant debates about how to conceptualize health; is it
the absence of disease, or does it involve more than that? Can health
be defined without reference to normative concepts? Other debates
concern the value of health, and whether health is good as an end,
good as a means or both or neither; whether the attitudes towards a
given condition of those who have it affect whether it counts as
healthy or unhealthy; and a variety of other questions. (Ananth 2008;
Boorse 1975; Coggon 2012; Hoffman 2010; Holland 2007; see the entry on
 concepts of health and disease).
 We will not rehearse these debates here. Even if we put these
questions about the concept of health to the side, however, there are
other questions that concern the nature of public health. Can the
health of the public meaningfully be understood only as an aggregation
of the health of each person that comprises the public, or is it
something more than that? Is the health of the public something of
value in its own right?



These questions are important because they have implications for
particular views on the ethics of public health. Some theorists of
public health treat the health of the public as something that cannot
be reduced to healthy individuals - what we will call
'anti-reductionist' views. Anti-reductionist views often
construe the public as a community or political entity rather than a
population. (Coggon 2012; Jennings 2007). If one endorses
anti-reductionism, then various values might seem especially central
to theorizing about public health. For instance, some argue that
communal values, such as solidarity, are integral to understanding the
value of public health. (Dawson and Jennings 2012; Jennings and Dawson
2015). These views typically call for an extensive role for government
interventions aimed at promoting public health, although this is not a
conceptually necessary feature of such views.



Reductionists, by contrast, think that the health of a public is
reducible to an aggregation of the health of individuals. This claim
about reduction, however, need not signal an aversion to an extensive
role for government in protecting or promoting public health. That is,
some might deny that there is an entity, 'the public,'
that matters morally in a way that cannot be reducible to individual
interests or values but agree with anti-reductionists about policy
measures. For example, it is possible that focusing on measures that
reduce the incidence of disease in a population will be better at
producing more value for individuals than a focus on treating or
preventing disease for individuals. (Rose 1985; Rose et al. 2008)
Presumably, various anti-reductionists would argue for a similar
conclusion, although they would invoke other values to reach it.



A third class of views is also reductionist but calls for a more
circumscribed range of public health interventions. For instance,
classical liberals often argue that it is morally impermissible for
government actors to intervene in ways that produce aggregate value
when doing so infringes on individual liberty. More will be said about
liberalism and public health in Section 3.2. Although these writers
endorse a more restrictive view of the mandate of public health, some
would nevertheless endorse governments producing health-related public
goods, such as herd immunity (Anomaly 2011, 2012; Brennan 2018; Dees
2018; Epstein 2004; Flanigan 2014b, 2017; Horne 2019).



In the economic sense of the term, public goods are non-rivalrous,
which means that one person's enjoyment or consumption of the
good does not reduce the ability of others to enjoy that good. Public
goods are also non-excludable, which means it is very difficult to
prevent others from enjoying the public good. (See the entry on
 the free-rider problem.)
 Paradigmatic public goods in public health include herd immunity,
sanitation, and clean air. Not all the goods of public health are
public goods in this sense, however.



Consider two concepts that are often invoked in debates about the
justification for public health interventions- the 'common
good' and the 'public good.' These terms are
polysemous, and this sometimes leads to confusion. Some uses of these
terms are associated with political values as, for example, when
'the common good' refers to values shared or pursued
collectively by all members of a community. Many anti-reductionists
will invoke 'the common good,' so understood, to justify
public health interventions and policies. For instance, some argue
that all members of the same community, qua members of the same
community, have an interest in living in a social grouping in which
all enjoy a high degree of health. Economists, by contrast, use
'common good' to refer to a pooled resource that is
rivalrous (one person's usage diminishes the ability of others
to use it) but non-excludable (it is quite difficult to exclude others
from using it). In some public health contexts, safe water, food and
drugs can be understood as common goods in this sense.


### 1.2 Government Intervention



The second distinctive feature of public health with significant
implications for public health ethics is the large role that
government intervention and government power play in public health. So
much of what is undertaken to advance public health requires the
apparatus and power of the state to be effective. Some go as far as to
claim that what makes public health 'public' is, at least
partly, that public health is the business of the public, as
contrasted with private individuals. To these theorists, the
distinction between public and private health is not to be found
merely in the collective rather than the individual-level focus.
Instead, who or what is promoting the health of the populace is
relevant (see Coggon 2012; Jennings 2007; Verweij and Dawson 2007;
Dawson and Verweij 2008). For instance, in The Future of Public Health,
the Institute of Medicine includes the following definition:
"Public health is what we, as a society, do collectively to
assure the conditions in which people can be healthy" (Institute
of Medicine 1988, p. 1, emphasis added). If we assume that in a
functional democracy action by the government is action by us,
collectively, then we arrive at yet another way to understand the
especially close connection between government action and public
health. If one goes further and claims that an action is a public
health action only if it is taken by the collective and that an action
is performed by us, collectively, only if it is performed by
government, then an intervention is a public health intervention only
if a government is the relevant actor.



This conclusion will strike many in public health as unduly narrow,
however. Private non-profit actors, especially charitable foundations
and other non-governmental organizations (NGOs), frequently undertake
measures that would be hard to characterize as anything other than
public health interventions in their character and in the outcomes
they
 secure.[3]
 For instance, vaccine research and development is often supported by
NGOs, and vaccines are often delivered in epidemic contexts by NGOs.
Similarly, NGOs often mount health promotion campaigns and provide
resources to communities to improve local public health
infrastructure. It seems contrived, at best, to conclude that because
NGOs operate in the private sector, their activities do not constitute
efforts to advance public health. Perhaps a more natural description
is that NGOs as private entities undertake interventions to directly
improve public health without themselves being governmental public
health entities (Coggon 2012). Of course, one could argue that NGOs
lack the standing to engage in public health activities because they
are not accountable to citizens and do not act in their name. This is
a legitimacy-based concern that has been levied against the
development interventions of large-scale philanthropies generally.
(Reich 2018) The core of the concern is that these large scale NGOs
have the power to set agendas and priorities in ways that sidestep or
usurp what should otherwise be the prerogative of functional
nation-states to determine. In other contexts, this concern may have
little purchase, however. Consider, for example, when global NGOs
undertake activities with the robust cooperation of or at the
invitation of the state, or in failed or otherwise problematic
national contexts that lack the resources or the will to protect the
health of all or some of the populations that live within their
borders. Also, global, pan-national organizations, most notably the
World Health Organization, play a critical role in advancing public
health. It would be bizarre to conclude that policies and guidance of
the WHO, or interventions that WHO leads, are not public health
policies or interventions because the WHO is not a state actor and
does not have the enforcement or police powers of a state.



Although collective action in the form of government intervention is
thus not a necessary condition of public health, government
intervention is still central to public health. Achieving good public
health outcomes frequently requires extensive coordination on the part
of many actors. To secure coordination, incentive structures for
individuals often need to be changed, and it is most often governments
that have the authority to make these changes. Because of this
authority, governments are especially well-suited to overcome
characteristic challenges in promoting or realizing public health.
Consider, for example, a paradigmatic challenge in deploying vaccines
to combat infectious disease. If enough people are not willing to be
vaccinated, then herd immunity is undermined. A central though
contested function of government is to disincentivize going
unvaccinated by implementing policies that penalize those who refuse
vaccination.



This point about governments being especially well-suited to changing
the incentive structure of individuals is significant for public
health ethics insofar as many public health measures are coercive or
are otherwise backed by the force of law. In this, as in all other
areas of official state action, those concerned with the ethics of
public health have to address tensions among justice, security, and
the scope of legal restrictions and regulations. These tensions add to
the peculiarity of the justificatory questions surrounding public
health: the exercise of public authority and the imposition of public
sanctions and penalties in an area as deeply personal as an
individual's health choices require strong justification. The same
questions about trade-offs between personal freedom and collective
benefits that arise in the political arena generally thus also arise
for public health. It is in this context that concerns about the
legitimacy of public health interventions and paternalism typically
emerge - concerns we return to in Section 3.


### 1.3 Concluding Remarks



Common to both features of public health is the question of how
broadly or narrowly to understand what public health entails (Powers
and Faden 2006; Coggon 2012; Anomaly 2011; Dees 2018). In many
national contexts, there is no sharp divide between what some consider
the traditional functions of public health, such as ensuring that the
water and food supply are safe, protecting the public from infectious
disease, and health promotion, and the organization and financing of
personal medical care services. This is especially the case when the
provision or financing of personal medical care is solely or primarily
a state function. In the bioethics literature, the ethics of health
care policy is sometimes distinguished from the ethics of public
health. As we will see in Section 2, much of the literature on justice
and health has focused on medical care and the criteria that should be
used to determine coverage decisions about specific personal medical
care interventions that are delivered to individual patients in
clinical facilities. One way to think about this is to conceptualize
the ethics of health care policy as an intersecting territory between
public health ethics and the ethics of clinical practice. Although we
have focused in this section on two features of public health that
distinguish it from clinical care, it is worth noting that there are
these intersecting territories and that they have implications for
public health ethics. For example, in the many contexts where
government agencies have ultimate authority over what medical care
services patients can receive, the ethics of coverage decisions must
take account of their impact on the ethics of the doctor-patient
relationship in addition to efficiency and other considerations of
justice that public health allocation decisions standardly engage.




There are also intersecting territories between public health and
biomedical science, again with implications for public health ethics.
For example, advances in AI-assisted big data analysis, genomic
database, and gene editing offer potentially unprecedented
opportunities for public health to better predict and respond to
health threats. (Geller et al., 2014) Questions are emerging about
whether the use of these scientific advances in service of public
health adds anything new or different from the ways in which the
legitimacy issues discussed in Section 3 should be evaluated.



That there are overlapping territories between public health, clinical
care and biomedical science is, of course, to be expected as these
enterprises are all committed to advancing human health. The major
challenge is to answer the question of how broadly or narrowly to
understand what public health entails. Given a wide understanding of
health and the factors affecting prospects for population health,
public health can be viewed as being so expansive as to have no
meaningful institutional, disciplinary, or social boundaries.
Everything from crime, war, and natural disasters; to population
genetics, environmental hazards, marketing and other corporate
practices; to political oppression, income inequality, and individual
behavior has been claimed under the rubric of public health. Although
all of these threats to human well-being affect health, it would be
hard to conceptualize public health as encompassing all of the
societal resources that these threats demand for their mitigation. For
example, while reducing violence is critical to population health,
that does not mean that law enforcement, the criminal justice system,
diplomacy and international relations should be considered tools of
public health.



Whether or under what conditions it is ethically appropriate to frame
or re-frame a social problem in public health terms is morally
complex. For example, taking a public health rather than criminal
justice orientation to gun violence or substance abuse can sometimes
contribute to defusing tensions, decreasing negative impacts on racial
or other minority groups, and leading to better overall outcomes
(Dorfman and Wallack 2009). At the same time, however, interventions
generally outside the purview of public health institutions and
professionals such as early childhood education, income supports,
literacy initiatives for girls, and safe housing programs all can be
effective in preventing illness and injury. In some cases, such
interventions may be more effective and efficient in achieving health
gains than paradigmatic public health programs.



Morally responsible public health policy requires attentiveness to the
multiple determinants of health. This requirement does not signal that
public health has no boundaries. Rather, public health has a unique
relationship of stewardship to health, and to the particular
determinants that have a special strategic significance for health.
Some of those determinants are the classic focus of public health,
such as infectious disease control and the securing of safe food,
water, and essential medications. However, exercising that stewardship
requires responsiveness to the best available evidence about all the
determinants, across the landscape of an interconnected social
structure, that have a special strategic relation to health. These
determinants often lie outside the conventional remits of public
health agencies and authorities. Policies governing education, foreign
assistance, agriculture, and the environment can all have a
significant impact on health, just as health policies can impact
international relations and national and global economies. 



One worry raised by this interconnectedness across spheres of social
life and policy is that classifying something as a public health
matter could be an effective way of taking it out of the realm of
legitimate discussion. (Anomaly 2011; Coggon 2012) If the goal of
protecting public health is seen as clearly good, government actions
aimed at securing health may be less scrutinized than actions aimed at
more controversial ends, leaving public health officials with too much
power and too little democratic accountability. As a practical matter,
however, these concerns may not be realistic. Consider the recent
example of climate change. Early in 2020, the American Medical
Association and 23 other health and medical organizations sent a
letter to the President of the United States calling climate change a
public health emergency and declaring that "there is no single
step that will do more for the health of all Americans than remaining
in and meeting our obligations to the Paris Climate Agreement."
(Robeznieks 2020) It seems unlikely that framing climate change as a
public health crisis risks taking climate policy out of the realm of
legitimate discussion. Indeed, although data on this point are hard to
come by, it is likely that the reverse is true: public health agencies
and workers are more likely to have insufficient political power,
authority, and resources at their disposal to achieve important and
pressing goals than to wield too much. It is not usually individuals'
civil rights to which public health interventions stand in opposition,
but rather private, corporate economic interests such as the tobacco
industry, the meat and dairy industry, and so on. Nonetheless, it is
worth raising these worries at least to keep them in view as a
possible issue for public health ethics to address. And even if the
worry that expanding the classification of something as a public
health matter in some way threatens civil liberties is nothing more
than fear-mongering, the breadth of what falls under public health may
raise concerns about legitimacy, concerns taken up Section 3. But
first, we turn to questions about justice in public health of the sort
presaged in our discussion of the first distinctive characteristic of
public health, its focus on the health of populations, not
individuals.


## 2. Justice and Public Health



Many familiar debates between utilitarian and various egalitarian
approaches to distributional questions play themselves out in public
health. Public health professionals and policymakers are typically
committed to bringing about as much health as possible with the
resources available. This interpretation of the remit and
responsibility of public health is understandable, and in many
respects, laudable. There is no context in public health in which
resources are unlimited, or even sufficient to bring about all the
health that might be secured. Efficiency in the use of constrained
resources, especially public resources, is clearly morally important,
if not imperative. And from the perspective of some utilitarian
accounts, maximizing the amount of net good, in this case, health,
that can be secured is also the only just way to deploy resources.
(See, for instance, the entry on
 justice.)



Public health professionals and policymakers are well aware, however,
of concerns that the health maximizing approach to public health can
often perpetuate and even exacerbate existing injustices in health and
human well-being. At least since the 1990s, ethics scholars have
challenged public health to look beyond efficiency to address other,
generally egalitarian concerns of justice. Activists concerned about
racial, gender and other social group injustices also frequently call
on public health institutions to pursue health equity, particularly by
reducing what are viewed as unjust health disparities.



Tensions between efficiency and egalitarian commitments arise in two
stage-setting public health functions: the establishing of goals and
priorities, for example, when the US Department of Health and Human
Services sets goals and objectives to improve the health and
well-being of people in the United States in its Healthy People
Initiative, and the allocating of resources that have been budgeted to
secure the goals that have been identified, for example, how to
distribute the funds that are allocated to the goal of reducing
cardiovascular deaths. As important as setting goals and allocating
resources are, there are other questions in public health ethics that
also engage considerations of justice but that are not centrally
structured around tensions between efficiency and equity. These
include the moral value of prevention, the moral responsibility of
individuals for their health, and stigma in public health programming.
Public health also affects other things that matter morally to people,
like respectful treatment, personal security or personal relations.
Depending on how one understands what social or structural justice
entails, these other considerations may be matters of justice, or even
in some cases of state legitimacy, but they are not typical of matters
taken up in either literatures.



Section 2.1 begins with a review of different reasons that have been
put forward for why health matters morally, and thus why health is or
might be a matter of justice. Section 2.2 discusses general problems
of aggregation, goal setting and resource allocation. Sections 2.3
takes on distinctive moral issues that arise due to public
health's emphasis on prevention, and sections 2.4 and 2.5 take
on individual responsibility and stigma, respectively, as well as some
other examples where public health's engagement with justice
goes to impacts that are not primarily health. (For instance, stigma
can be conceptualized as a concern about social disrespect). Section
2.6 concludes with a brief review of global justice considerations.



### 2.1 The Value of Health: Why Health Matters Morally



Theories of justice relevant to public health ethics operate with
accounts of the value of health that often mark key differences
between
 them.[4]
 In the case of utilitarian theorists, the value of health is often
understood implicitly in terms of the contribution that health makes
to utility or welfare. All health benefits are seen as contributing to
welfare and all harms to health as diminishing welfare. How health
benefits and harms should be conceptualized and therefore measured is
a matter of debate, as is the case with the parent categories of
utility and welfare, more generally. We will briefly review some of
the health-specific debates in Section 2.2.



Egalitarian theories of justice, including those most relevant to
public health ethics, continue to be profoundly influenced by Rawls.
(See Rawls 1971, and the entry on
 John Rawls.)
 Health does not figure prominently in Rawls' celebrated theory
and is not included by him as a social primary good. (Rawls 1971, 62)
Other theorists have, however, pursued what they understand to be the
implications of Rawls's theory for health policy and public
health. The most sustained and notable development of Rawlsian thought
comes from Norman Daniels. Daniels argues that the value of health as
it matters to justice can be found in its critical connection to
Rawls' principle of "fair equality of opportunity,"
which for Rawls centers on social offices and positions. Daniels
maintains that health is of special importance to this principle. On
this view, enjoying health up to some threshold is integral for each
to have a 'normal opportunity range,' or the array of life
plans reasonable persons are likely to develop for themselves within a
particular society (Daniels 2008, p. 43). Thus, Daniels attempts to
account for the moral significance of health, including public health,
in terms of its connection to opportunities rather than to welfare
(Daniels 1985; 2001; 2008). In other words, on this sort of view,
health is a matter of justice because of its integral role in allowing
us or, in the case of ill health, preventing us from pursuing what we,
as a matter of justice, should be able to pursue.



In part in response to Rawls, Amartya Sen pioneered an alternative
approach to justice, which has as its central focus the ability and
power of individuals - their capabilities - to reach
states of valuable functioning or well-being. Capability theory is
concerned with the freedom of individuals to pursue these states; the
justice of social systems is to be judged by the extent to which this
freedom to be and do is promoted for all, a distinctly egalitarian
commitment. (See the entry on
 the capability approach.)
 The most prominent capability approach to justice, and one with
direct relevance to public health, is that of Martha Nussbaum.
Nussbaum identifies ten central human capabilities that a just society
should make available to its citizens. Bodily health is included
within the ten, as is life, which she defines as "being able to
live to the end of a human life of normal length; not dying
prematurely, or before one's life is so reduced as to be not
worth living" (Nussbaum 2006, 76). Health is understood as
necessary or partly constitutive of human dignity or a flourishing
human life. For Nussbaum and other capability theorists, the
capability for health is thus of direct importance to justice, and not
as it is for Daniels, for whom health is of strategic importance to
fair opportunity.



Powers and Faden have developed a different theory of structural
justice that, like Nussbaum's capability theory, also sees
health as a direct matter of justice. However, while Nussbaum focuses
on health capabilities, Powers and Faden focus on health itself. Their
theory is anchored in an account of human well-being in which health
is one of six core elements. Each element is defended because it is
characteristically present in a decent human life and because it
requires an appropriate social structure for its secure realization
and cannot be experienced by individuals relying solely on their own
efforts. Powers' and Faden's egalitarian commitments are
evidenced in their view that structural justice entails ensuring that
all individuals, globally, experience these six well-being elements
and the human rights that are grounded in them, commensurate with a
decent human life. They are also reflected in the theory's focal
concern with unfair relations of power and advantage as well as with
human rights and with the intimate relationship between unfairness,
well-being and human rights. (Powers and Faden 2019) Much of their
theory is taken up with interconnections between these moving parts of
structural injustice. Their view that a deprivation in one core
element of well-being like health is likely both a cause and a
consequence of deprivations in other elements of well-being has direct
implications for public health policy. So, too, does their view that
unfair patterns of disadvantage and unfair power relations are a
powerful driver of deprivations and human rights violations, which in
turn usher in and exacerbate these forms of structural unfairness.



Each of these different ways of explicating why health is a matter of
justice - because health contributes to overall utility or
welfare, because of its strategic importance to fair opportunity,
because it is a central human capability, or because health is a core
element of human well-being - provide reasons why national and
global policy-setting structures should place a priority on
health. Each provides justifications, some overlapping and some
distinctive, for extensive collective investment in public health
services and practices. They also have different implications for
public health policy. For example, arguments from fair opportunity
underscore the importance of, and arguably prioritize, interventions
that will protect or restore aspects of health that relate to normal
opportunity ranges and societal prospects. Theories that focus on
capabilities for health and those that focus on securing health may
have different implications for how public health institutions should
set targets and priorities, and certainly for how health policies
should be evaluated. And theories that advocate for the
interconnectedness of health with other valued human states suggest a
wider range of relevant outcomes for public health and public health
ethics than theories that focus only on health. And each is open, in
one way or another, to the familiar criticisms of utilitarian,
Rawlsian, capability and well-being theories.



Yet another approach to articulating the value of health, and thus of
public health, is found in the health and human rights literature
(see Mann et al. 1994; Mann 1996; Beyrer et al. 2007; Beyrer and Pizer
2007; Tasioulas and Vayena 2015a; Tasioulas and Vayena 2015b; Gostin and
Friedman 2013). In the early 1990s, Jonathan Mann pioneered an
approach to public health that explicitly framed health as a human
rights issue, and human rights violations as public health issues.
Subsequent work in the health and human rights tradition has been
dominated by scholars and advocates in health law and public health
practice, with strong links to activist and humanitarian
organizations. (Gostin 2008, 2010) As a general matter, the health and
human rights tradition relies on international declarations of human
rights and human rights law as its foundation and does not probe the
philosophical underpinnings of human rights or their connection to
theories of justice. This is not because philosophical accounts of
human rights are not congenial to the inclusion of health as a basic
human right, however. Quite the opposite. Multiple rival candidates
for the justification of human rights, from interest-based theories
(Powers and Faden 2019; Raz 1988; Griffin 2008; Beitz 2015) to
control-based theories (Darwall 2006; Hart 1982) to dignity-based
theories (Kamm 2007; Tasioulas 2015), can be interpreted to support
the inclusion of health as a human right. (See the entry on
 human rights.)
 Regardless of one's explanation of the grounds of human rights,
by claiming that individuals have a human right to health, health is
made a matter of justice, since each individual has an entitlement to
health. Moreover, framing health as a human right is appealing in the
context of discussions of public health ethics because this framing
provides a basis for making states, as the first guarantors of human
rights, responsible for promoting and protecting the health of
individuals residing within their jurisdictions. However, just as
approaching the value of health from the standpoint of different
theories of justice is open to the general criticisms associated with
each theory, so accounting for health in terms of human rights is open
to the broad challenges that apply to accounts of human rights more
generally (Buchanan 2012; Sreenivasan 2012)


### 2.2 Aggregation, Goal Setting and Resource Allocation



As we noted in Section 1.1, a defining characteristic of public health
is that it is committed to advancing health at the level of
populations. Public health relies on aggregated measures of health to
identify health deficits, set health policy priorities, assess the
impact of interventions, and allocate resources. It is this reliance
on aggregation that sets the stage for numerous questions of justice
in public health, including perhaps most prominently tensions between
egalitarian approaches to justice and efficiency-oriented utilitarian
approaches.


#### 2.2.1 Justice and Natural Units Measures of Population Health



Although many challenges in aggregation taken up in the justice and
public health literature relate to or are compounded by the way
summary measures of health are constructed and deployed, even the
simplest of health measures, once aggregated, raise justice concerns.
Traditionally in public health, and still today, health outcomes are
often measured in what are sometimes called natural units; examples
include life expectancy, mortality, five-year survival, and
immunization rates. These natural units are typically expressed in
terms of averages, as in average life expectancy of American men,
although sometimes medians or other ways of presenting the data are
used. The problem is that, aggregated over a population, any of these
natural measures can obscure differences within the population that
are morally relevant. To continue with the example of average life
expectancy of American men, focusing only on that measure obscures
differences between white men and men of color, rural and urban men,
and poorly and well-educated men that many view as mattering morally,
and as potential injustices. Reliance on average summary measures of
things like income or education can also have implications for public
health ethics. To take a classic example, averaged national income
data have been used as the basis for determining which countries are
eligible for international philanthropic assistance in accessing
lifesaving vaccines. Because this approach resulted in the withholding
of global vaccine aid from middle-income countries, it was criticized
as perpetuating injustices. In middle-income countries with large
income inequalities, average income data obscured truly disadvantaged
sub-populations who were not likely to receive the vaccine without
global assistance. (Shebaya, Sutherland, Levine, and Faden 2010) One
job of public health ethics is to stay attuned to the risk that
averaged outcome measures and statistics can mask differences between
subgroups within a population that point to unjust inequalities in
need of redress.



At the same time, whether or how much group differences in aggregated
natural measures of health matter morally is not necessarily obvious
and may depend on the account of justice under
 consideration.[5]
 Any sub-group difference in a natural measure of health suggests that
it may be possible to secure more health for more people than is
currently the case, a goal underscored by the public health's
utilitarian commitments. However, whether any group difference is also
unjust from an egalitarian perspective cannot be read off of the
existence or even the size of a between-group disparity. Theories of
justice, or more directly accounts of injustice, are needed to fill in
the gap between observing an inequality in health between groups and
deciding whether or how egregiously the inequality constitutes an
injustice. (Powers and Faden 2006, pp. 95-99)


#### 2.2.2 Justice and Summary Measures of Population Health



From the standpoint of public health policymaking, there are several
other problems with natural measures of population health, like life
expectancy or infant survival rates. These measures cannot provide a
summary picture of the overall state of health or burden of ill health
of a population, nor do they allow for comparison of the value or
impact of alternative investments in different health priorities. The
latter is a particular problem for allocating health budgets and
setting priorities for funding. Although classic cost-benefit analysis
provides a solution that admits of comparisons across diverse health
areas and outcomes, reducing all the benefits and risks at issue in
public health to their monetary value is widely viewed as
unsatisfactory. In response, a series of summary measures of
population health have been developed that seek to reduce into one
fungible metric both life expectancy and considerations of impact of
disease and of medical interventions on function and disability.
Operating out of the preference-satisfaction tradition, well-known
summary metrics include Quality Adjusted Life Years (QALYs),
Disability-Adjusted Life Years (DALYs), Disability-Adjusted Life
Expectancy (DALE) and Healthy Life Year (HeaLY). Summary measures have
been subject to extensive ethics critique. (See the entry on
 disability and health care rationing.)
 Some of these criticisms reflect difficulties with conceptualizing
and operationalizing utility accounts of welfare. For example, these
measures sometimes rely on assessments of what may be only vague
individual preferences for trade-offs between different states of
health or different kinds of benefits, or trade-offs made by samples
of persons that are viewed as too narrow. These summary measures have
also been critiqued to the extent that they rely on average trade-off
assessments that may mask wide disagreement about the disvalue of a
compromised health state.



Other criticisms focus on different, egalitarian-oriented justice
concerns about morally contentious assumptions embedded in the
measures, including whether to differentially value years saved in
different stages of life and how to disvalue specific disabilities.
Depending on how these and other assumptions are determined and
specified, summary health measures have been criticized as being
ageist or not ageist enough, as discriminating unfairly against people
with disabilities, as failing to capture the moral uniqueness of
lifesaving, and as treating as commensurable qualitatively different
losses and benefits. (Brock 2002, 2006; Daniels 2008; Kappel and
Sandoe 1992; Nord 2005; Powers and Faden 2006; Ubel 1999; Williams
2001; Whitehead and Ali 2010; Soares 2012; Pettit et al. 2016;
Schroeder 2017).



A particularly influential deployment of the DALY summary measure of
population health is the Burden of Disease Project. Supported by the
World Health Organization, national burden of disease studies are
conducted in many nations and are widely relied on to help
characterize the state of ill health globally as well as within
countries. Ethical concerns about DALYs and global disease studies,
often discussed in the public health literature under the heading of
social issues, include whether DALYs should be age-weighted or
time-discounted. Because the results of global burden of disease
studies can be influential in the setting of health priorities, they
illustrate well the importance of the ethics of summary measures in
public health practice. 


#### 2.2.3 Efficiency vs. Equity



Much of the literature in public health ethics that has addressed
summary measures has looked at their role in cost-utility
 analysis.[6]
 In cost-utility analysis, a summary measure is used to identify how
to secure the most health for the resources available. The goal is to
establish comparative value for money, with an eye to ensuring
efficiency in resource allocation. In addition to ethical concerns
about the construction of summary measures and the assumptions on
which they are built, cost-utility analysis raises additional concerns
of justice because it, like cost-benefit analysis and utilitarian
theorizing more generally, is indifferent to questions of
distribution. As a contingent matter, it is often the case that public
health interventions that are good value-for-money advance the health
of disadvantaged groups relative to their powerful counterparts. This
is because a little money can often go a long way towards improving
the health of those who have relatively little and whose health
prospects are bleak. Consider, for example, investing in childhood
immunizations and vitamin supplementation in low- and middle-income
countries. That said, the worry remains that when public health policy
rests on cost-utility analyses, the resultant priorities or
allocations may entail injustices of various sorts. For example,
policymaking that is mainly or largely driven by cost-utility findings
may perpetuate or even exacerbate existing unjust health disparities
when health gains are more efficiently secured for those who are
better off or fail to treat fairly the needs of persons with rare
diseases, diseases with poor outcomes, and diseases that are very
expensive to prevent or treat.



In large part in response to these difficulties with cost-benefit
analysis and treating maximization as the relevant principle, scholars
in public health ethics have defended alternative principles of
distribution. These principles mirror familiar debates in the
literature on distributive justice. Although some theorists argue for
some form of equality in the distribution of health-related resources
(Marmot 2005; Wilkinson 2005), including equality of opportunities
(Daniels 2004, 2008), much of the literature is taken up with debates
between prioritarianism and sufficientarianism. Defenders of
prioritarianism claim that while the overall goal of distribution
should be the promotion of the health of the population, extra
weighting or priority should be placed on the distributing resources
in ways that promote the health needs of those who are worst-off
(Parfit 1997; Ottersen et al. 2008; Ottersen, Maestad, and
Norheim, 2014). How to conceptualize who the worst-off are for
purposes of public health policymaking remains contested territory. By
contrast, those defending sufficientarianism maintain that a
preferable distributional principle for health resources is helping to
ensure that all persons experience or can achieve a certain threshold
of health or health capabilities (see Nussbaum 2006; Powers and Faden
2006; Fourie and Rid 2017). On this view, a world in which everyone
reaches a threshold for health capabilities or health states is more
just than a world in which average population health exceeds that
threshold but some subgroups do not reach it. A challenge here is
conceptualizing and then operationalizing how much health or health
capability counts as sufficient.



The challenges posed by the efficiency vs. equity tension in public
health cannot be overstated (Daniels 2019). For example, in the United
States, infant mortality rates are higher than in many other wealthy
nations, and they are higher still among poor and minority children.
Some state public health authorities have made reducing racial
disparities in infant mortality a top priority, accepting the view
that redressing this unjust inequality is an urgent moral concern.
Other states have chosen the goal of improving infant survival
statistics overall, on the grounds that the same resources will
produce greater aggregate health outcomes while at the same time
pointing to the special place that all children should hold in public
health policy (HRSA 2014 in Other Internet Resources). It is not clear
that theorizing about just distribution in health does or could
provide definitive guidance as to which policy is more just.



Equity and efficiency frequently sit side by side in public health
policymaking. Countries often explicitly include a range of diverse
health equity objectives in national public health goals (Krubiner and
Faden 2017). Several approaches have been put forward to assist
policymakers who do not want to lose sight of these objectives as they
also aim to be efficient in the use of the limited resources available
for population health. One major concern is that cost-utility and
cost-effectiveness can have an outsized influence on policymaking
because the quantitative character of their results convey a kind of
pseudo-scientific certainty or otherwise seem to provide an
evidence-based grounding for what policymakers should do. To combat
this concern, which of course is a risk in policymaking generally,
some have argued the importance of treating CEA and CUA findings only
as aids to decision-making that policymakers should take into account,
but always in concert with other sources of relevant information,
including explicit ethics analysis.



Several ethics frameworks directed at assisting policymakers in taking
this broader perspective attempt to incorporate both value-for-money
and other justice-based commitments in one guidance document (see
Ottersen et al. 2014). Relatedly, there is increasing interest in
multi-criteria decision analysis (MCDA) in public health, a formalized
methodology in the operations research tradition that allows for
systematic attention to a range of considerations inclusive of both
efficiency and equity criteria. There is also continuing interest in
incorporating equity- based concerns directly into formal economic
methods, sometimes referred to as cost-value analysis. (Distefano and
Levin 2019) Each of these different strategies to blunting the
influence of cost-utility analysis in the service of more just
policymaking is subject to different criticisms. For example,
strategies that emphasize underscoring to policymakers that they
broaden their scope of relevant inputs, including with the aid of
purpose-built ethics frameworks, are challenged for failing to
appreciate how numbers-oriented policymaking actually is. Conversely,
strategies that incorporate empiricized versions of ethical
considerations into economic methods and some quantitative MCDA
approaches are open to critiques about making commensurable that which
is not, and also obscuring from political and public view what is
morally at stake, including where there are moral disagreements that
bear on the policy decision.


#### 2.2.4 Absolute Scarcity



As we have already noted, financial resources are always limited in
public health. There is never enough money in the public health sector
to pursue all the policies and practices that could advance population
health. Although arguably a redistribution of resources among
competing public sectors, for example from a country's defense
budget to its health budget, may be ethically warranted and could
relieve some of the more pressing constraints, tough priority setting
and allocation decisions are a constant feature of policymaking in
public health and are likely ineliminable. There are also occasions in
public health, however, when money is not the primary constraint and
questions of just distribution can take on somewhat different
features. Sometimes referred to as cases of absolute scarcity or of
extreme rationing, an urgently needed intervention is in short supply,
and the supply problem cannot be fixed in real-time simply by
allocating more money to the
 problem.[7]
 A classic example is countermeasures for epidemic diseases, where
production of the countermeasure, typically a vaccine, lags behind the
need. In these cases, standard debates between efficiency and various
alternative distributive principles can take on new twists or are
augmented by appeals to somewhat different principles. For example,
when epidemic vaccines are in short supply many judge that health
professionals and other first responders should enjoy high priority
for receiving a vaccine. The rationale for this position appeals to a
mix of utilitarian and non-utilitarian reasons. Some see the relevant
distributive principle to be a combination of contribution and
reciprocity; because these people are putting themselves at increased
risk of acquiring the infection, literally putting their lives on the
line for others, first responders are entitled to special
consideration in access to preventive interventions. At the same time,
the argument is also made that the public health system needs these
experts to be both willing and able to perform their duties and thus
that it is important to use guaranteed access to a scarce vaccine to
both incentivize first responders to work on the public's behalf
and to keep them healthy.



Many cases of absolute scarcity lie at the intersection of public
health and clinical ethics and, depending on the national health
system, maybe more or less under public health authorities to resolve.
These include the deployment of antivirals and ICU beds during an
influenza pandemic but also the allocation of solid organs or of
cancer drugs that are in short supply because of production challenges
(Unguru et al. 2014). Consider the case of solid organs. Simple
notions of fairness might suggest that scarce life-saving organs be
distributed randomly among a pool of those in need or on a first-come,
first-served basis (Arras 2005; Broome 1984; Silverman and Chalmers
2001). However, if, for example, either of these principles resulted
in an 85-year-old being selected over a ten-year-old, objections could
be mounted from a utilitarian, QALY or DALY perspective. Objections
could also be mounted from what is sometimes called the "fair
innings" perspective in which a priority is placed on ensuring
that people survive to experience the later stages of life before
anyone who has already experienced those stages is assisted. Competing
concepts of fair chances and just outcomes have dominated this
literature, and complex national systems have developed to allocate
solid organs that generally rely on a mix of distributive principles.
The Complete Lives System is one attempt to integrate several
principles in one general strategy for allocating scarce resources
(Persad, Wertheimer, and Emanuel 2009), while other integrated,
multi-principle strategies have been proposed for the allocation of
particular kinds of scarce resources like ventilators in the context
of pandemic influenza (Daugherty Biddison et al. 2018).


#### 2.2.5 Distribution of Health Burdens



Thus far, we have focused on questions of justice in priority setting
and allocation of resources intended to improve health. The
interventions the resources support often carry with them harms or
risks, but these generally fall on the persons and groups who benefit
from them. However, there are also contexts in public health where the
benefits and harms do not fall on the same groups, raising somewhat
different questions of justice. One example is Japan's seasonal
influenza immunization policy between 1962 and 1994, where children
were immunized against influenza explicitly in order to protect the
elderly, for whom contracting seasonal flu is more likely to be fatal,
and immunization more likely to be burdensome (Reichert et al. 2001;
Sugaya 2014). Another example of public health interventions that
appear to be guided by this reasoning is rubella vaccination. Rubella
is a disease that causes only mild illness except if contracted by
pregnant women, where rubella can result in miscarriage or serious
birth defects. In many countries in the world, children are routinely
immunized for the sake of pregnant women and their fetuses (Miller et
al. 1997; ACIP 2010 in Other Internet Resources). The question raised
here is whether it is ethically acceptable for some groups within the
population to be asked or required to take on risks, even minimal
ones, in order to assist other groups in the population who cannot be
directly protected. One argument appeals to reciprocity. In the case
of rubella immunization, the children vaccinated today were spared the
risks of in utero exposure to rubella because children before them
were similarly vaccinated. (Of course, this rationale does not apply
to the very first cohort of children who received the rubella
vaccine.) Another argument is that the imposition of risk on some in
order to protect the health of others is justified in order to make
the overall distribution of disease burden in the population more
equitable. This more general argument can explain why individuals are
sometimes asked to bear public health burdens that do not directly
benefit them. However, as with the case of taxes, the question of how
far we can go in redistributing health-related burdens will likely
continue to plague any proponent of this justificatory strategy.
Moreover, questions about the plausibility of viewing health-related
burdens as subject to distribution in this manner may also arise.


### 2.3 Public Health, Prevention, and Justice



A distinct set of questions of justice arises because promoting public
health involves a significant commitment to the prevention of disease
and injury. This commitment to prevention is often seen as a defining
feature of public health institutions, even though public health
agencies and services also engage in diagnosing and treating
illnesses, with all the attendant clinical services that those
activities
 require.[8]
 Indeed, national health systems are increasingly understood to
include both preventive functions and the delivery of personal medical
services. Often these functions and services are integrated under a
common political or administrative structure. Depending on the
specific context in which population health is to be promoted,
separating population health services and functions from personal
medical care services and functions may or may not make sense. That
said, policies and programs whose aim is to prevent illness and injury
are paradigmatically the territory of public health. Certainly, no
other social institution is recognized as so clearly having this
remit.



Perhaps the foundational moral question at issue in public
health's commitment to prevention is whether preventing disease
and injury is more important, as important or less important than
treating disease and injury. If prevention and treatment are morally
equivalent, such that preventing heart disease in one person is the
moral equivalent of treating heart disease in one person, then because
it is generally cheaper to prevent disease than to treat it,
prevention would, at least from an ethics standpoint, have a leg up in
utilitarian accounts of what justice in public health requires.
However, in practice, investments in treatment more often than not
swamp investments in prevention. We have already noted the ethically
complicated convention in economic analyses of discounting health
benefits and costs accrued in the future relative to current health
benefits and costs, paralleling the convention of discounting future
financial costs and benefits. But it is not only in economic analyses
that this bias exists. Although in recent years there is arguably more
emphasis on prevention in health policy, preventive public health
interventions continue to receive less funding and public support than
medical treatments. For example, despite the increasing focus on
wellness in public policy and the workplace, both policymakers and the
public still tend to place a higher priority on ensuring that heart
patients have access to surgery and medications than on programs to
prevent heart disease through diet and
 exercise.[9]
 Is this privileging of treatment morally justified?



Answers to this question typically appeal to several related and
sometimes conceptually unclear distinctions that are thought to be
morally relevant. These include the aforementioned distinction between
future and current costs and benefits, the distinction between
identified and unidentified or statistical lives, and the distinction
between currently existing and future persons. The impact of
preventive interventions is more likely to be experienced in the
future, while the impact of treatment interventions is typically
experienced in the near term. Whether people should disvalue future
benefits to themselves, relative to current benefits, is not clear.
Because current beneficiaries are often identifiable and future
beneficiaries typically are not, the differential valuing by
temporality is often associated with the distinction between
identified and statistical persons. The identified victim effect is
the term given to the widely observed psychological phenomenon in
which people have a greater inclination to assist (and avoid harming)
persons and groups who are known by name or are otherwise identifiable
than to assist (and avoid harming) persons and groups who will suffer
(or already suffer) similar harm but are not (as yet) identifiable to
them in any socially meaningful way. These unidentified persons are
thus "merely" statistics or statistical lives (pp.1-2;
Eyal et al. 2015; Jenni and Lowenstein 1997; Jonsen 1986; McKie and
Richardson 2003; Small 2015).



The identified victim effect has clear implications for prevention vs.
treatment. Although resources for both treatment and prevention are
both generally allocated at the aggregate, population level, treatment
interventions are typically delivered to identifiable patients whose
experience of benefit will be witnessed by others, including the
health professionals who care for them. By contrast, while prevention
interventions may be delivered to identifiable people, as in
immunization campaigns, they need not be. Consider, for example,
interventions like cigarette taxes that reduce tobacco consumption
among large numbers of faceless and nameless people. Moreover, even
when the people receiving the prevention intervention are
identifiable, as in vaccine campaigns, the identities of the sub-set
of people who will benefit from the intervention remain unknowable;
they are statistical persons.



Diverse moral defenses have been put forward for prioritizing the
well-being of identified persons over statistical persons (Hare 2015;
Slote 2015; Verweij
 2015),[10]
 and for the closely connected "rule of rescue," a claim
that there is a moral imperative to prioritize helping those currently
in dire
 need.[11]
 These defenses include the moral relevance of saving people from
imminent death or disability, relieving suffering, and the role
responsibilities of clinicians. A distinctive consequentialist
argument is also made that the welfare of all is enhanced when
everyone knows that societal resources will be expended to rescue them
if they are ever so imperiled (McKie and Richardson 2003).



Those who find the identified victim effect ethically as well as
psychologically compelling and who support the rule of rescue
generally defend the view that public health policy decisions about
allocation and priority setting should build in a bias in favor of
treatment. Others, on the other hand, maintain that we should reject
the rule of rescue and should not prioritize or assign greater value
to identified than to statistical persons (Brock and Wikler, 2006,
2009; Hope 2001, 2004; Otsuka 2015). For instance, some argue that the
considerations that appear to count in favor of prioritizing
identified persons reduce to other moral considerations that apply
equally to statistical persons - so prioritizing identified
persons is, all else equal, unjustified (Brock 2015; Eyal 2015; Jecker
2013). If this is correct, then the identified victim effect should be
overlooked when allocating resources or setting priorities. If
anything, we should worry that to prioritize the health of identified,
current persons over statistical, future persons fails to treat the
latter as moral equals (Jecker 2013,
 2015).[12]




So far, we have restricted our discussion to already existing persons.
Whether the benefits accrue in the present or the future, and to
identified or statistical persons, the beneficiaries all currently
exist. A further complication arises when we consider preventive
measures that primarily benefit future persons (Parfit 1987; see also
the entry on the
 non-identity problem).
 For instance, the eradication of polio or smallpox provides little
benefit to those who have already acquired immunity (either due to
vaccination or contracting the disease). The primary beneficiaries of
these disease eradication programs are both vulnerable existing
persons and future persons who will be born into a world without these
diseases. Indeed, arguments in favor of eradication efforts often
appeal to the interests of future persons and intergenerational
justice (Emerson 2010; 2014). Here, familiar questions re-emerge.
Should we prioritize currently existing (identified or statistical)
persons over future persons? If so, there are difficult additional
questions about how much more weight existing persons should
receive.



A somewhat different set of issues emerge when public health efforts
that aim to benefit the future require the participation of those who
are currently suffering from unjust unmet health needs. When, for
example, individuals and groups in lower and middle-income countries
argue that there are more urgent health priorities than eliminating
various diseases, is this just a variant of the failure to properly
prioritize resources to reduce unjust health inequalities, or is there
something distinctive about the resource allocation going to benefit
future persons or about the involvement of the currently disadvantaged
in the intervention designed to benefit future persons? (Rubincam and
Naysmith 2009)



Some but not all of the issues we have thus far reviewed are addressed
in an influential analysis of questions of justice, prevention and
public health by Geoffrey Rose (1985; Rose et al. 2008). Rose's
analysis focuses on the complex relationship between two by now
familiar distinctions (prevention vs. cure or treatment and
identifiable vs. statistical beneficiaries), the amount of benefit an
intervention confers, and on whom, and the cost of the intervention.
Ross also examines two different approaches to prevention - the
"high-risk strategy" and the "population
approach." The high-risk strategy involves identifying
particular individuals at heightened risk for some condition, such as
heart attacks or strokes, and then intervening with various preventive
therapies such as statins to lower cholesterol. The population
approach involves implementing prevention interventions that affect an
entire population, and not just individuals identified as high risk.
Consider soda taxes or regulations restricting the use of trans fats
in processed foods. Rose articulates what he calls the
'prevention paradox': when compared to high-risk strategy
interventions, population-wide interventions often afford relatively
small benefits to each individual. However, although these
interventions only slightly decrease each individual's risk,
aggregating this small benefit for each member of a very large
population adds up to a very large benefit to population health that
is sometimes larger and more efficiently secured than with an
alternative, high-risk strategy (Rose 1985, 1993; Rose et al. 2008).
The extent to which we should prioritize the population approach will
depend on how one answers the questions discussed in this section
- about statistical versus identified lives, the rule of rescue,
and the standing of future persons.


### 2.4 The Relevance, Or Not, of Individual Responsibility



As we have already noted, not all issues of justice in public health
are captured by challenges in the setting of priorities or the
allocation of resources. One persistent issue concerns the extent to
which individuals should be held responsible for their health. For
instance, various luck egalitarians argue that people should be
compensated for brute luck or various factors outside of their control
but should not be compensated for the choices within their control
(Albertsen 2015; see also the entry on
 justice and bad luck).
 One apparent implication of (unsophisticated) forms of luck
egalitarianism, then, is that individuals are not entitled to the
resources needed to prevent or treat ill health that is the result of
their own behavior. Instead, when the bad health of some or all of the
public is due to an aggregation of self-harming and irresponsible
choices, it could be argued that any related public health efforts are
better understood as a matter of beneficence rather than justice, and
that justice does not require public health attend to various health
conditions caused by irresponsible choice. Of course, many luck
egalitarians argue that their view does not yield this implication
(see Albertsen 2015; Knight 2015; Segall 2010). Nonetheless, this
objection to unsophisticated forms of luck egalitarianism is
informative, insofar as it reflects a general tension between notions
of individual responsibility and the appropriate role of public
health.



Framing public health interventions as a matter of beneficence and not
justice is but one response to self-imposed risks to health. Some go
further and argue that because individuals who engage in self-harming
behavior impose costs on the rest of us, as a matter of justice, the
individuals who make such choices ought to have to pay to offset these
extra costs. The kinds of costs of concern include imposing burdens on
public health resources that distract from other, more worthy health
needs, draining emergency medical services, and increasing medical
care costs and health insurance premiums. Cigarette smoking is one
arena where this debate has played itself out. It has been argued, for
example, that smokers should pay for the costs they impose on others
through taxes on cigarettes pegged to defray these costs. Another
twist on the justice-implications of self-imposed risks focuses on
restrictions that can be imposed on risk-takers. For example, some
proponents of motorcycle helmet laws note that cyclists who ride
without a helmet are more likely to have a serious injury that
requires the immediate attention of emergency medical personnel and,
as a consequence, these experts are not free to provide care to other
more prudent patients who are also acutely ill (Bayer and Jones 2007).
On this view, mandatory helmet laws, as well as cigarette taxes, are a
matter of justice insofar as these policies are aimed at preventing or
offsetting the costs imposed on the rest of us by those who take
discretionary risks with their health.



Many, however, object to these lines of argument. Some grant that
individuals are responsible for their risky health decisions but deny
that this licenses the conclusion that justice requires the sorts of
policies just described. These critics articulate alternative ways for
people to bear the costs of their decisions, including, for example,
allowing people who engage in risky behaviors to self-insure in some
way (Flanigan 2014b). A different line of argument, specific to the
financing of health care services, is that the whole purpose of
community or public support of medical care through health insurance
schemes or government health care programs is to spread the costs of
health care across the population. These costs should include those
that flow from the full range of negative externalities, including
those that have their source in what some consider irresponsible,
risky behaviors. One way of putting this point is that the entitlement
to medical care includes medical costs that are incurred by engaging
in all kinds of behavior, such as working very long hours (Wikler
1987, 2002). Once the myriad ways in which we impose costs on one
another is recognized, this line of argument continues, the focus on
certain behaviors is undermotivated or even discriminatory. Indeed, if
we look at various behaviors that are often condemned as irresponsible
health decisions in public health policymaking, they are often
behaviors associated with disadvantaged or marginalized groups (Wikler
1987, 2002). For instance, the sugary beverage tax in New York applied
to soda but not to more expensive but very sugary beverages, such as
frappuccinos.



A different concern with arguments that aim to hold individuals
responsible for unhealthy choices focuses on the concept of
'responsibility' at play, and whether attributions of
responsibility are fitting. (Dworkin 1981) Whether, to what extent,
and in what sense individuals are responsible for risky behaviors is
contested at every turn, in part because of both conceptual and
empirical debates about notions like addiction and voluntariness. For
years, scientists and humanists have argued over the concept of
addiction, and how that concept should play into our views about
behaviors like smoking, drinking and the use of drugs. Also thrown
into the mix are contested views about the impact on the public of the
full force of marketing tools available to industries who peddle
unhealthy products, and the related imbalance in power and influence
between these industries and the public health institutions that try
to level the information and influence playing fields.



But perhaps most fundamental is the mounting epidemiological evidence
that unhealthy behaviors are frequently disproportionately represented
in disadvantaged subgroups of the population. There are many
structural explanations why, for example, poor people are more likely
than those who are better off to eat poorly, smoke more, exercise less
and become dependent on drugs and alcohol. As we have already noted,
many theorists and activists in public health place a priority,
grounded in accounts of the demands of justice, on reducing
disparities in health between groups that differ in social and
economic advantage and power (Powers and Faden 2006; Venkatapuram
2019). Indeed, many claim that a central mission of public health is
to correct for unjust health inequalities (Powers and Faden 2006).
When the root causes of certain unhealthy behaviors are background
injustices, responding by imposing additional costs on individuals in
those unjust circumstances is perverse and at odds with this central
mission. (Buchanan 2019,
 Resnik, 2013;
 Arno et
 al., 1996;
 Hoffman and
 Tan, 2015;
 Nestle and
 Bittman, 2015;
 Pomeranz, 2012.) From this perspective, to penalize
individuals who make unhealthy choices due to injustice is to add
insult to injury and constitutes victim-blaming.



As this discussion suggests, much of the work addressing public health
takes as its starting point that health-related burdens are often
caused by injustices, a point that Margaret-Chen, then
director-general of the WHO, captured well with the following remark:
"The social conditions in which people are born, live, and work
are the single most important determinant of good health or ill
health, of a long and productive life, or a short and miserable
one." (2008). Inequalities in health frequently exist between
socially dominant and socially disadvantaged groups, and they
frequently occur in conjunction with other injustices and compound
them (Wolff and de-Shalit 2007; Powers and Faden 2006). In many
contexts, poverty co-travels with the systematic disadvantage
associated with racism, sexism, and other forms of denigrated group
membership. However, even when it does not, the dramatic differential
in material resources, social influence, and social status that is the
hallmark of severe poverty brings with it systematic patterns of
disadvantage that are extremely difficult, if not impossible, to
escape. Even when these patterns are lessened, the life prospects of
persons living in severe poverty or in dominated groups often continue
to be far below that of others. In light of the connection between
other forms of injustice and public health inequalities, in
particular, some argue that a critical moral function of public health
is to vigilantly monitor the health of systematically disadvantaged
groups and intervene to reduce the inequalities so-identified as
aggressively as possible. Keeping obligations to such groups at the
forefront of public health thinking can result in significant changes
in public health policy.



The final difficulties for trying to formulate policy that compensates
people for bad luck but not for irresponsible decisions are epistemic
and practical. Even if one grants that there are cases where
individuals should be held responsible for engaging in unhealthy
behaviors by holding them to book for the costs of their behavior or
denying them certain interventions, the fact that many health
conditions are multi-factorial in their causal origins poses
significant epistemic challenges for formulating responsive public
policies. Take lung cancer, for example. There are many people who
smoke who do not develop lung cancer and many who have never smoked
that do. It is daunting to envision determining for an individual
person, let alone groups of people, what causal role risky behavior
played in their becoming ill. Moreover, even if this epistemic
difficulty could be resolved, it remains the case that public health
policy, like all public policy, is a blunt instrument. We should worry
that public health policies that try to ensure that individuals pay
for their own irresponsible choices will often fail to penalize
irresponsible behavior, or, more worrisomely, penalize individuals who
should not be held responsible for their ill health. 


### 2.5 Justice and Stigma



As we noted in sections 2.3 and 2.4, not all issues of justice in
public health are captured by challenges in the setting of priorities
or the allocation of resources. What to do about individual
responsibility is one such issue; another is whether some public
health interventions unfairly stigmatize certain groups. There are
lots of ways to think about stigmatization, but at its core to
stigmatize is to deem some characteristic or behavior of others as
falling short of communal norms of desirability (see Courtwright 2011;
Bayer 2008; Burris 2008; Link and Hatzenbuehler, Phelan, and Link
2013). Typically, stigmatization has a distinctive set of negative
consequences, especially loss of social status and social
isolation. Many claim that to stigmatize someone is morally wrong
because of the harms stigmatization causes. Depending on your account
of justice, stigmatization can also be unjust, particularly when the
stigmatizing actor is the state or some other powerful institutions or
agents. Stigmatizing by powerful actors can reinforce structural
patterns of disadvantage and unfair power relations, and it can also
fail to treat members of stigmatized groups as moral equals (Powers
and Faden 2019, 35-36).



Concerns about stigmatization in public health can emerge in a range
of public health policies, including when some groups are identified
as "at increased risk" for diseases that have socially
contentious associations and are themselves stigmatizing. For example,
although itself unfair, in some contexts, people with mental illness
and AIDs continue to be shunned and worse. Being labeled as at
increased risk for these illnesses carries with it the potential for
stigmatizing effects. Questions about targeting public health
interventions become all the more complex when the stigmatizing
effects would be borne by already disadvantaged groups. On the one
hand, tailoring a public health program to those who are poor or
members of disadvantaged gender or racial groups can sometimes serve
equity concerns and be efficient if, for example, the health problem
the intervention targets occurs disproportionately in these groups. On
the other hand, however, if the health problem is itself associated
with stigma or shame, targeting these already disadvantaged groups may
reinforce existing invidious stereotypes, thereby undermining other
critical concerns of justice, such as equality of social respect
(Powers and Faden 2008). Thus, in cases where interventions will
incidentally stigmatize already disadvantaged groups, public health
authorities face a different kind of efficiency vs. equity challenge
from those already mentioned. They may need to decide whether a
commitment to justice requires foregoing a more efficient, targeted
program in favor of a relatively inefficient, universal program that
may produce not only less improvement in health for the population as
a whole but also less improvement in health for the disadvantaged
groups (thus failing to narrow unjust inequalities) in order to avoid
exacerbating existing disrespectful social attitudes (Faden, Kass, and
Powers 1991).



Another context in which stigma concerns emerge is in public health
education campaigns. The methodology for these campaigns often entails
not only informing the public about the health risks or benefits of
particular behaviors but also changing public attitudes in ways that
dispose the public to feel more negatively about those who engage or
fail to engage in them. One way of interpreting what is going on is
that an aim of the public health campaign is to shift public values
towards the stigmatizing of unhealthy behaviors or ways of life. Some
contributors to the public health ethics literature endorse measures
that are intended to stigmatize certain unhealthy conduct such as
condomless sex, smoking, or various unhealthy eating habits
(Courtwright 2011; Kim and Shanahan 2003; Brown-Johnson and Prochaska
2015) or even certain conditions, such as obesity (Callahan 2013). The
argument in defense of public health implementing interventions that
intentionally stigmatize turns on several assumptions, including that
the public health problem of concern (e.g. obesity) constitutes an
injustice and that intentional stigmatization will be very if not
uniquely effective in reducing the problem and its associated unjust
effects.



Unsurprisingly, this sort of argument is extremely controversial and
has led to heated debates. Some object on empirical grounds; for
example, that there is insufficient evidence that intentional
stigmatization is effective at reducing the prevalence of health
problems (Goldberg and Puhl 2013) or that there is some evidence to
suggest that stigmatization can actually increase the prevalence of a
concerning behavior (Goldberg and Puhl 2013; Burris 2008.). Still
others object because of the psychological or social harm that is
caused to individuals who have the relevant condition or engage in the
concerning behavior (Burris 2008; Goldberg and Puhl 2013) or that any
use of stigmatization is dehumanizing and morally unacceptable for
that reason (Burris 2008). A related objection is that stigmatization
is reductive; it treats someone as nothing more than a particular
'spoiled social identity' - those who smoke
cigarettes are thought of as smokers; individuals with obesity are
just viewed as obese (Burris 2008; Nussbaum 2004).



Yet another line of objection engages victim-blaming concerns similar
to those raised against policies that would penalize those who engage
in unhealthy behaviors. This objection challenges the arguments in
defense of stigma as a public health tool by highlighting that the
individuals and groups to be stigmatized are the ones subject to the
injustice. In particular, there are significant concerns about whether
stigmatization involves victim-blaming, encourages a culture of
victim-blaming, punishes individuals who are unhealthy because they
are unjustly socially disadvantaged or for other reasons that are
completely outside their control. As with the debate about individual
responsibility, there are often discussions about the underlying
causes of the relevant behavior that public health interventions aim
to prevent. For example, if unjust social structures are a root cause
of obesity in some group, then encouraging the use of stigmatizing
messaging or changing social norms to encourage feelings of shame in
those who are or might become obese amounts to shaming people for
being subject to other injustices (Goldberg and Puhl 2013). Similarly,
to the extent that genetic or metabolic considerations are a root
cause of obesity in some people, then stigmatizing interventions are
also unjust.



Although some continue to defend stigmatization in public health
despite these objections (Callahan 2013), others have provided more
moderate defenses of various stigmatizing measures by emphasizing that
there can be morally important differences between different targets
of stigmatization. So, for instance, campaigns aimed at stigmatizing
condom-less sex seem from a justice perspective to be relatively
unproblematic. This kind of campaign targets a wide range of people
and groups and does not tightly track social disadvantage. Nor does it
dehumanize people who have certain illnesses or lifestyles or reduce
them to some single feature or condition. Stigmatizing obesity, on the
other hand, does engage important concerns about justice. Obesity is a
medical condition and a bodily characteristic of people rather than a
behavior, and even if effective, stigmatizing obesity causes
significant harm to people who are already stigmatized for their size
in many social contexts (Courtwright 2013).


### 2.6 Public Health, Global Concerns, and Global Justice



It is commonplace and yet correct to say that threats to health know
no borders and that the promotion of public health requires attention
beyond national boundaries. Three types of reasons can be advanced in
favor of viewing public health as transcending nation-states:
self-interest (2.5.1); humanitarian considerations (2.5.2); and
justice, rights, and duties (2.5.3) (Wolff 2012). Of note, the first
two of these reasons do not originate from the standpoint of justice,
though, as we shall see, they engage important questions of justice in
their pursuit. The third set of reasons engages all the issues
discussed thus far in Section 2, and also encounters general debates
about the meaning, reach and plausibility of global justice generally
(Powers and Faden 2019, 145-186; Brock 2013; Miller 2007; see also the
entries on
 international distributive justice
 and
 global justice).


#### 2.6.1 Self-Interest and Global Justice



The paradigmatic example of national self-interest is the motivation
every country has to prevent and contain emerging and re-emerging
infectious diseases. Outbreaks of these diseases typically occur in
low- and middle-income countries, but many have the potential to
become threats to health in other parts of the world. It is in the
interests of wealthier nations to provide financial and technical
support to poorer countries to build up their surveillance and rapid
response capabilities, and to provide emergency assistance when
outbreaks strike. Preventing and containing infectious diseases as
they emerge in the global south is an important way for wealthy
countries to reduce the likelihood of negative consequences in their
own backyards.



It is also in the interests of all nations, but arguably especially
wealthy nations, to participate in the global sharing of surveillance
data about and biosamples of suspect pathogens through mechanisms
maintained by the WHO. As we noted in Section 1.1.1, nearly 200
countries are signatories to International Health Regulations, which,
among other things, obligate them to do so. However, it is here that
serious clashes between self-interest and global justice can emerge.
Shared bio-samples are used to develop vaccines, diagnostics, and
treatments that, depending on the context, may be made available first
or only affordable in higher income countries where these counter
measures will likely be financed and developed. The fairness of this
state of affairs was challenged dramatically by Indonesia in January
2007, when it refused to hand over viral samples during an outbreak of
H5N1 influenza (bird flu) in that country. Although Indonesia cited
what it viewed as multiple ethical breaches, Indonesia's main
objection was a complaint of injustice that samples provided freely by
low- and middle-income countries were used by companies in wealthy
nations to develop vaccines and other products that developing
countries cannot afford (Sedyaningsih et al. 2008). An interesting
twist on the justice issues was whether, because the viral samples
that would be used by wealthy country companies to develop and produce
vaccine would be of Indonesian origin, Indonesia had any greater claim
to the vaccine than other low- and middle-income countries who also
could be seriously threatened by H5N1 but had the "bad
luck" to not be among the first countries to supply viral
samples.



Several steps have since been taken to address Indonesia's and
related complaints, including a 2011 WHO framework for the sharing of
influenza viruses and access to vaccines and other counter-measures
(see World Health Organization 2012 in Other Internet Resources).
However, associated challenges in justice around global biosamples and
epidemic preparedness and response continue. In 2019, a somewhat
similar claim of exploitation and injustice arose when it was reported
that blood samples from patients with Ebola in several West African
countries had made their way to laboratories in the US, UK and other
wealthy nations under conditions that some in West Africa and
elsewhere considered unfair, exploitative and disrespectful
(Freudenthal 2019).



In the context of emerging infections, there is yet another, related
way in which national self-interest and justice can collide. When the
burdens of a public health intervention fall heavily on those who are
already disadvantaged, the justificatory hurdle is particularly high.
This problem regularly emerges in global epidemic preparedness and is
at the heart of many global justice questions, including most notably
in environmental justice controversies, such as the locating of
hazardous waste facilities and hazardous industries in low-income
countries, typically in the poorest communities within those
countries. (Powers and Faden 2019, 204-206). Because infectious
disease threats so often emerge first in poorer countries, global
efforts to prevent and contain pandemic influenzas can place
significant burdens on the world's poor and, as we have already noted,
not always with sufficient or guaranteed offsetting benefit. For
example, a principal strategy employed to prevent avian influenza H5N1
from becoming a human pandemic in the mid-2000s was the destruction
of infected birds and the banning of household poultry in urban
settings in affected countries. This policy was most burdensome for
poor women and their families who relied on backyard poultry as their
only source of disposable income. Because there was often no or little
compensation for the losses, they were economically devastated as a
consequence (Bellagio Working Group 2007 in Other Internet Resources;
Faden and Karron 2009; Uscher-Pines, Duggan, Garoon, Karron, and Faden
2007).



Perhaps most foundationally, the self-interest reason for nations to
engage globally in public health cannot be separated from questions of
global structural injustice in international relations more broadly.
Many threats to public health, including the threats from climate
change, cannot be effectively addressed absent collective global
action. However, in today's global order in which nations differ
greatly in wealth and other forms of power, the likelihood that
agreements and coordinated action will fairly represent and fairly
protect the interests of people living in poorer nations is not good.
In the case of climate change, although the hottest, poorest, most
agriculturally dependent countries have contributed the least to
greenhouse gas emissions, they are being hurt "first and
worst" by global warming (Powers and Faden 2019, 172-178). And
yet enforceable requirements to reduce emissions continue to be
blocked by high emission countries. In infectious disease as well, it
is typically the poorest countries and the poorest people who are hit
hardest in outbreaks and epidemics, but their power to influence
global preparedness and response does not match their outsized
vulnerability.


#### 2.6.2 Humanitarian Considerations and Global Justice



Humanitarian interventions are among the most visible examples of
global public health in action. These interventions are implemented
and organized by diverse actors, including NGOs, philanthropies, and
multinational organizations like the UN and WHO, often with support
from health and military agencies from diverse countries. One way to
conceptualize humanitarian interventions is as the public health
response to the general moral position that it is wrong to stand by
and allow others to suffer in a crisis when we have the resources to
help. Under this framework, we have humanitarian duties or duties of
beneficence to help those in desperate circumstances, and those duties
transcend national borders. Public health services, material, and
personnel are often among the most important responses in humanitarian
crises, not only in outbreaks and epidemics but also in natural
disasters, wars and violent conflict, displaced populations and mass
migrations, famines, and droughts.



Commitments to global humanitarian assistance in public health do not
entail a commitment to a robust understanding of global justice. Even
theorists who are strong statists acknowledge that there are
obligations of humanitarian assistance to those in dire need in other
countries (see, e.g., Cohen and Sabel 2006; the entry on
 international distributive justice).
 This is not to say, however, that there are no moral controversies or
issues of justice in humanitarian assistance. Humanitarian health
organizations and health workers are regularly confronted with ethical
challenges that include, for example, tensions between humanitarian
principles of impartiality and neutrality and ethical commitments to
the just distribution of limited health resources (Broussard et al.
2019). Looming large over the entirety of humanitarian assistance is
the question of whether individuals and especially nations have
adequately fulfilled their obligations of global humanitarian
assistance. It is unclear what that question might mean if
humanitarian assistance is understood as falling under obligations of
beneficence rather than obligations of justice, since obligations of
beneficence are less determinate than obligations of justice. Some
accounts of justice might be interpreted as including duties of
international humanitarian assistance, for example, if these duties
are considered to fall under minimal global obligations to fulfill
human rights or the threshold in sufficientarian approaches to global
 justice.[13]
 However, these accounts do not provide guidance on what is arguably
an important global justice question - whether countries are
doing their fair share in humanitarian aid.


#### 2.6.3 Public Health, Global Justice, Rights, and Duties



As important as humanitarian assistance is in global public health, it
cannot even begin to address the central global justice challenge in
public health - the stark differences in health between
populations living in wealthy countries and populations living in low
and some middle-income countries, especially the poorest in these
countries. The global justice challenge in health cannot, of course,
be separated from the global justice challenge in well-being,
generally. And all the debates in justice theory between strong
statists and theorists who defend accounts of utilitarian and
egalitarian transnational obligation are relevant as well. Still,
there are some reasons to think that public health, and therefore
public health ethics, hold a special and very interesting location
vis-a-vis discussions of global justice and our duties to the
distant poor (Holland 2007). If nothing else, questions about whether
there are duties of justice across national borders occur way too
frequently in public health for them to be ignored. Consider just a
few.



Even when vaccines are not developed using biosamples sourced from
low-income countries, is it just for wealthy countries to produce and
stockpile only the amount of vaccine needed to protect their own
populations when low- and middle-income countries do not have a
comparable capacity? While outbreaks rage in poor countries and deaths
mount, should wealthy countries continue to reserve their entire
vaccine supply for their own population?



Intellectual property regimes and international trade agreements
provide tremendous protections for pharmaceutical companies in wealthy
countries, with the result that many drugs and biologics are priced
well beyond what low-income countries can afford. To take what some
consider the most egregious case, should restrictions on the
production and distribution of generics be upheld even when they
hinder the containment of easily treatable diseases in poor countries
(Pogge 2002; Grover, Citro, Mankad and Lander 2012)?



Only wealthy countries have the financial and human resources to make
sizable investments in biomedical research. Do these countries have
obligations in justice to allocate resources to address the major
health problems of the world's poor? And finally, public health
infrastructures in low-income countries struggle from shortages of
health professionals, in part because of migration of professionals to
wealthy countries. Is this a problem that health authorities in
wealthy countries should work to contain, even as the health of their
own populations benefit?



One response to these specific challenges is to frame them all as
justifiable claims of justice against the world's wealthy countries
and persons. On one of the most compelling arguments for this view,
wealthy countries and their citizens are responsible for transnational
institutional structures that contribute to and exacerbate unjust
global inequalities, including global health inequalities. The
continuing beneficiaries of these structures have a duty not only to
reform these structures but also to ensure that the effects of
resultant unjust inequalities are mitigated. In public health, this
includes providing resources to meet the needs generated in health
crises and also helping to build effective public health
infrastructures in impoverished countries so that crises can be
averted in the future. So understood, failing to do so is an injustice
and not merely a failure to act charitably or in accordance with
humanitarian
 obligations.[14]
 Ultimately, that is why we cannot escape responsibility for
intervening when something like an Ebola outbreak occurs and not
merely because of concerns about self-interest or humanitarian
sentiments (Powers and Faden 2019).



Those who make the case for viewing global health inequalities as
unjust often appeal to health as a fundamental human right, drawing on
the field of health and human rights. As we have already noted, many
in public health accept that health is a fundamental right, as
codified in the United Nations Universal Declaration of Human Rights
or otherwise (General Assembly 1948). As is true for all human rights,
difficult questions immediately emerge about the assignment of
responsibility for protecting, promoting, and fulfilling the right to
health and the specification of the content of the right (Millum and
Emanuel 2012; Tasioulas and Vayena 2015a; Tasioulas and Vayena 2015b).
At least as long as the global order is organized as it is, there are
good reasons to view the nation-state as having first line
responsibility for the health and other human rights of those living
within its borders. However, this does not absolve nation-states of
obligations to at least forebear from undermining the ability of other
countries to meet their own human rights obligations. Arguably,
nation-states have an obligation in justice to address impediments to
human rights fulfillment that flow from unjust differentials of
interstate and global institutional power (Powers and Faden 2019,
146). Also, acknowledging that nation-states are the first line of
defense in human rights fulfillment does not address who is
responsible for the human rights of people living in countries who
cannot or will not protect their interests, including the human right
to health (Powers and Faden 2019, 146-177).



If we view inequalities between people living in wealthy nations and
those living in the rest of the world as a matter of justice rather
than as a humanitarian concern, then those who view public health ethics
through the perspective of justice have plenty to think about. To
these theorists, the extraordinary disparities in life expectancy,
child survival, and health that distinguish those who live in rich and
poor countries constitute a profound injustice that it is the duty of
the global community to redress. The necessary steps to ameliorate
these injustices go beyond simple medical care and classical public
health interventions. Improving the health of the world's poor is
indelibly tied to economic, social, educational, and environmental
improvements as well, and health-related justice claims are not easily
separable from justice claims that arise in those other contexts.



The fact that there are people who live in such poverty and
deprivation that they and their children die of starvation and the
simplest infection should be a sufficient indicator that these global
institutional schemes are seriously
 unjust.[15]


## 3. Political legitimacy and Public Health



As we noted in section 1.2, a distinctive feature of public health is the
large role that government policy and government power play in its
promotion. Although private non-profit actors, as well as pan-national
organizations, make major contributions to advancing public
 health,[16]
 much of the work of public health occurs within nation-states and is
backed by governmental enforcement and the exercise of police powers.
A substantial literature in public health ethics focuses on the
legitimacy of these state actions.



Challenges to the authority of public health institutions and the
legitimacy of public health policies occur in a wide range of
political contexts. In countries with distinctly illiberal political
institutions, questions of state legitimacy are cashed out quite
differently than in the liberal tradition. The public health ethics
literature has focused largely on the latter, relying on the liberal
tradition as the touchstone for most writing on political legitimacy
in public health. In Section 3, we address the major themes in this
literature. Section 3.1 considers how appeals to overall benefit, the
necessity of collective action, and efficiency are used to justify the
general mandate of public health agencies. Section 3.2 takes up the
major strands of argument from within the liberal tradition that are
used to assess the permissibility of particular policies or
 intervention.[17]
 After an overview of an influential heuristic developed to help map
the relative impact of various types of public health interventions on
individual
 liberty,[18]
 we turn to four different responses to concerns about the
intrusiveness and legitimacy of public health policies and practices:
paternalism (3.2.1); the harm principle, as attributed to John Stuart
Mill (3.2.2), the "liberty tradition" (3.2.3) and
libertarian paternalism (3.2.4)



In 3.3, we consider a different set of legitimacy-related concerns
also associated with liberalism that focus on the problem of how to
respect values disagreements among individuals affected by a public
health policy. Here we take up two responses, an appeal to public
reasons (3.3.1) and an appeal to authoritative decision-procedures
(3.3.2). We then move in 3.4 to the civic republicanism view in public
health ethics, which denies altogether the liberal presumption against
interfering with free and equal persons.


### 3.1 Legitimacy, Efficiency, and Overall Benefit



Some argue that public health institutions are legitimate in virtue of
the particular kinds of benefits they produce. Specifically, these are
benefits that are experienced by each of us as individuals but that we
cannot secure for ourselves on our own. Moreover, these benefits are
so important that successfully producing them overcomes the
presumption against interfering with free and equal persons. For
example, we all want to be protected from infectious diseases and
unsafe or ineffective medication. However, these kinds of benefits
cannot be secured absent regulatory agencies such as the Center for
Disease Control and Prevention (CDC) or the Food and Drug
Administration (FDA) which have the expertise and authority to respond
to a potential epidemic or permit only safe and effective drugs to be
marketed to the public. According to this line of reasoning, public
health policies made by experts and enforced by the state are better
for us overall, even if particular decisions may not directly benefit
all of us all of the time.



According to this rationale, the task of public health ethics is not
necessarily to justify each particular decision or intervention
directly. Rather, as long as it stays within certain pre-established
parameters, public health public health in general can be justified in
the same way a market economy, the laws of private property, or other
similarly broad and useful institutions that involve some interference
with free and equal persons but also enable individuals to access
greater benefits can be justified: when properly regulated and
managed, their existence is by and large better than their absence for
everyone. So structured, the justification for particular public
health interventions, requirements, or restrictions is derivative of
or parasitic on a higher-level rationale.



A closely related justification emphasizes that the pursuit of health
is not possible without ground rules for coordinated action and
near-universal participation. Thus, public health is viewed as having
the structure of a coordination or collective efficiency problem. If
one person (or at least, a sufficient number of such persons) decides
to go when the traffic light is red and stop when the traffic light is
green, it does not matter that everyone else is following the rules:
this person will disrupt the smooth functioning of the system, with
potentially dangerous results. Similarly, if one person (or a
sufficient critical mass of such persons) decides not to abide by a
public health regulation because the regulation does not directly
benefit her or she otherwise objects, the ramifications will likely be
felt by others in her environment and
 beyond.[19]
 Almost everybody has to participate because, failing their
involvement, neither they nor anyone else is likely to be as healthy
as they might otherwise be, and none can fully reap the benefit of a
healthy society.



In many public health contexts, the only feasible or acceptably
efficient way to implement a policy affects the entire population,
leaving no or only very burdensome options open to individual
non-cooperation. Perhaps the most celebrated such example is water
fluoridation, but all safety regulations affecting the food and drug
supply and consumer products share this character, as do many
environmental and occupational health standards. Here collective
efficiency considerations loom large. Although we want healthy
environments and products, individuals are simply not positioned on
their own to ensure that the air is safe to breathe, nor can they make
meaningful decisions about the safety of the hundreds of thousands of
food and other products available in the modern marketplace. According
to this rationale, ceding this function to government institutions
staffed with health experts is justified in the same way as ceding
protection of our interests in personal physical security to
government institutions staffed with law enforcement and national
defense experts (Mill 1859).



Collective efficiency arguments rely on claims about the sheer number
and technical complexity of the decisions that need to be made to
protect health in the environment and in the marketplace, as well as
the indivisible character of responses to some health threats. These
arguments are buttressed by claims about the cognitive limitations and
bounded rationality of individual human decision-makers and by the
disproportionate political power of corporate interests and the
practices they use to manipulate and exploit our cognitive weaknesses
against our health interests (Ubel 2009).



The appeal to overall benefit or collective efficiency has
considerable attractiveness, particularly as a way of justifying the
existence of regulatory government agencies such as the EPA, FDA, or
CDC. However, it is ultimately insufficient on its own and needs to be
supplemented by other kinds of ethical arguments, since it does not
provide the basis for the parameters within which such agencies should
operate, or for ethical oversight or scrutiny with regards to the
particular decisions such agencies
 take.[20]


### 3.2 Individual Liberty, Legitimacy, and Public Health



Different kinds of interventions raise different issues for assessing
questions of legitimacy. The Nuffield Council on Bioethics has
provided an influential "intervention ladder" (Nuffield
Council on Bioethics 2007), which effectively rank orders various
types of interventions on a continuum that is meant to function as a
guide to the acceptability and justification of public health
policies. The ladder is anchored at one end by what is presented as
the least intrusive option, doing nothing, and at the other end by
what is presented as the most intrusive option, eliminating choice
altogether (as in compulsory isolation). The Council makes plain that
all rungs on the ladder, including doing nothing, require
justification and that the ladder is to be taken only as a tool in the
moral analysis of public health policies.





|  |  |
| --- | --- |
| *Measure* | *Examples* |
| Eliminate Choice | quarantining individuals infected with Ebola |
| Restrict Choice | trans fat ban; seatbelt and helmet laws; vaccine mandates;
water fluoridation |
| Guide Choice by Disincentives | soda tax; cigarette tax; efforts to engender social norms
against soda consumption |
| Guide Choice by Incentives | tax breaks for those who bike to work; pharmacy coupons in
exchange for getting vaccinated against seasonal influenza |
| Guide Choice by Changing the Default (also known as
'nudging') | making salads the default side whereas fries have to be
requested; requiring that sugary foods be placed further back in
grocery stores |
| Enable Choice | offer free smoking cessation classes; ensure access to clean
water |
| Provide Information | educational campaigns; requirements for food labels |
| Do nothing | --- |


Table. *Intervention Ladder*
(Nuffield Council on Bioethics, Policy Process and Practice, 2007)




While useful, the Nuffield ladder has at least three problems. First,
the ladder does not canvas all of the paradigmatic interventions of
public health. Surveillance, for instance, does not fit under any of
the types of measures that appear on the ladder. Yet public health
agencies engage in surveillance extensively; it is integral to
promoting and protecting public health. And surveillance activities,
too, raise difficult justificatory questions about citizen's
rights against intrusions by the state (Lee 2019; Taylor 2019;
Fairchild and Bayer 2004).



Second, continua like the Nuffield Ladder oversimplify the complex
impact of interventions on choice and liberty and on relations between
citizens and the state. When public health authorities do nothing, it
does not follow that choice and liberty are necessarily the winners.
For example, with no government intervention to serve as a counter
ballast, private sector actors in the pharmaceutical, food, and energy
sectors may undermine both individual choice and health through
misinformation, manipulative advertising, or anti-competitive
practices. Similarly, incentives are not always less restrictive of
choice than disincentives, and some object to both because they are
manipulative and autonomy-undermining (Quong 2011). Nudges and health
promotion campaigns also raise concerns about unwarranted state
intrusion, depending on the context. For example, ad campaigns that
are transparently sponsored by public health agencies, such as those
to prevent transmission of influenza by promoting personal infection
control practices or reduce obesity by encouraging exercise and
healthy eating, do not raise the same moral issues as the embedding of
anti-drug or food messages in the storylines of entertainment
television programming by these same authorities (FCC 2000; Forbes
2000 (Other Internet Resources); Goodman 2006; Krauthammer 2000; Kurtz
and Waxman 2000). Much like corporate advertising, these embedded
messages, as well as some nudges, may succeed in shaping
people's preferences without their awareness. These undetected
effects lead to questions about whether such interventions constitute
insidious manipulation by government and, as a consequence whether
they are really less objectionable than more overt interventions like
taxing or restricting liberty.



Third, the Nuffield Ladder ranks types of public health measures on
only one set of considerations that is relevant to justifying the
impact of that measure on choice and liberty. Justifications of
policies must also include an assessment of the benefit produced by
the intervention as discussed in Section 3.1, as well as
considerations of who benefits and who is harmed by alternative
government responses (including doing nothing) in ways that are
sensitive to the range of worries about justice raised in section
2.



The Nuffield Ladder is ultimately motivated by concerns about the
appropriate scope of state activity, and how the rights or interests
of citizens should restrict such activities. One helpful framing of
this concern comes from familiar discussions of political legitimacy
(see the entry on
 political legitimacy).
 In these discussions, there are typically three claims that are
presented as though they are in tension:


1. Exercises of political power interfere with free and equal
persons - some of whom do not consent to such interference.
2. There is a moral presumption against interfering with
non-consenting free and equal persons.
3. Public health interventions are (often) exercises of political
power.



The use of 'interference' is intentionally broad and can
be specified to be more or less inclusive. As we saw from the Nuffield
Ladder, the most paradigmatic cases of interference are laws
restricting or eliminating individual choice. Arguably, however, other
interventions interfere with free and equal persons, such as
disincentivizing or incentivizing choice, altering choice
architecture, or conducting surveillance. Others charge that even
subsidized smoking cessation programs funded by taxpayer money
constitute an interference with free and equal persons on the grounds
that taxation is coercive - and so constitutes interference
(Quong 2011).



The conception of 'free and equal persons' is also open to
multiple specifications (see the entry on
 liberalism).
 The basic idea behind the 'free' qualifier is to limit
discussion to individuals who have the requisite psychological
abilities to govern their lives in accordance with their values or
plan of life. Children and, arguably, adults with severe cognitive
disabilities do not count as free in this sense, and so the tension
between (1) and (2) does not arise for them as straightforwardly. The
'equal' qualifier is meant to convey that free persons are
moral equals, and no person has a natural right to govern others.



Resolving the tension between (1) and (2) is not unique to public
health; it is widely treated as a central problem for theorists of
political morality generally, especially by those who consider
themselves liberals. Nonetheless, as (3) indicates, the tension
between (1) and (2) frequently arises in the context of public health
practice and policy. We now consider a variety of responses to this
tension.


#### 3.2.1 Paternalism



Perhaps no issue has driven more debates about the legitimacy of
public health interventions than paternalism, and when, if ever,
paternalism is morally permissible. There is no consensus on how to
best define paternalism, and resolving disputes about this definition
is beyond the scope of this entry (see the
 entry on paternalism).
 But paternalism is classically understood as successfully interfering
with the liberty of action of a person, against her will, to protect
or promote her welfare (Dworkin 2005; Feinberg
 1986)[21].
 'Strong' or 'hard' paternalism, the variant
of paternalism that is most controversial, typically refers to
interference with someone's informed and value-based preferences
for the sake of advancing that person's best interests or
welfare. To illustrate with a case, imagine someone who chooses to
ride a motorcycle without a helmet rather than with a helmet despite
knowing the greater risk of injury and death that accompanies this
choice because the person values the enhanced sense of freedom they
experience when riding bareheaded. In this case, interference with
this decision for their own good by issuing fines that are ultimately
backed by loss of driving privileges or some other significant penalty
would be a case of strong or hard paternalism.



Strong or hard paternalism is quite controversial in all domains, and
liberals rarely claim that interventions can be justified on strong or
hard paternalistic grounds when it comes to autonomous, competent, and
informed persons. And very few public health interventions are
justified exclusively or even primarily on grounds of hard or strong
paternalism. Even proponents of motorcycle helmet laws often eschew
paternalistic arguments in favor of arguments about the costs the
cyclist imposes on others by riding without a helmet (Jones and Bayer
2007).



A distinct class of paternalistic arguments more popular with public
health advocates appeals to soft paternalism or weak paternalism. Soft
paternalism concerns interference with individuals to ensure that they
are not acting on false beliefs when endangering themselves such as
John Stuart Mill's influential example of the person who intends
to cross an unstable bridge, when it is unclear whether he knows that
the bridge is dangerous. In this case, to engage in soft paternalism
would be to make sure that the individual knows that the bridge is
unstable and if that person does, allowing them to cross nonetheless.
Weak paternalism includes correcting more general failures to take
one's means to one's ends due to, say, weakness of will
(Dworkin 2005). Both weak and soft paternalism share the feature that
they are interferences with choices that are compromised by ignorance
or non-voluntariness.



A challenge for both soft and especially weak paternalism is how to
respond when the person who is to be interfered with voices or holds a
preference that is inconsistent with the ends pursued on her behalf. A
general view is that preferences are not entitled to robust respect if
formed under conditions that significantly compromise their autonomy
or voluntariness, such as cognitive disability or immaturity and, in
very limited cases, ignorance or false
 beliefs.[22]
 Although rarely employed as a justification in public health,
adaptive preferences formed in response to difficult or unjust
circumstances are viewed by some as being less autonomous and
consequently more subject to permissible interference than preferences
formed under just or normal background
 conditions[23]
 (see the entry on
 feminist perspectives on autonomy).



More typically in public health, the obligation to respect preferences
is challenged by appeal to other claimed compromises of autonomy or
voluntariness. For example, public health interventions aimed at
adolescents, such as minimum age requirements for the purchasing of
alcohol, tobacco products, and driver's licenses, appeal to
views about the immaturity of judgment of adolescents whose brains are
still developing and who have limited life experience. For adults as
well as teenagers, claims about the addictive properties of some
substances, as well as the power of corporate marketing strategies to
manipulate preferences, are often used to justify interference. For
example, this line of reasoning has been used to help defend some
drug, alcohol, and tobacco policies, as well as policies to restrict
access to sugar-sweetened
 beverages.[24]



It warrants emphasizing that in all these cases, justified
interference would be based on a finding of significantly compromised
autonomy, competence, or rationality in the formation or continued
holding of particular preferences. This should not be confused with
interference based on the content of the preferences. Only the former
would be justifiable under soft or weak paternalism, whereas the
latter would constitute hard or strong paternalism.



These demarcations are not, of course, as clear in real life as they
are in theory, and in practice, the content of preferences is often
precisely what is appealed to in illustrating that a particular
preference is compromised. However, by and large, what distinguishes
weak paternalism from strong paternalism is the requirement that the
decision or preference be fundamentally compromised, and not simply
that it be mistaken or ignorant. This principled distinction remains
important not least because it reflects a difference in approach or
attitude: in the case of hard or strong paternalism, the interference
is based on the content of a preference that, purportedly, does not
reflect what is in the preference holder's
 interest.[25]
 In the case of soft or weak paternalism, persons might hold all
manner of preferences not in their best interest that are nonetheless
not justifiably interfered with because the relevant compromising
conditions do not obtain.



Despite the general tendency to eschew paternalistic arguments in
public health ethics, there have been some notable defenses of
unabashed paternalism in recent years. However, the exact form of
paternalism that these authors defend varies (Conly 2013, 2014; Hanna
2019). To take one prominent defender of paternalism, Sarah Conly
appears to defend weak paternalism insofar as she claims the
appropriate goal of paternalism is to enable as many individuals as
possible to act on their genuine values or higher-order preferences.
For instance, Conly argues in favor of various paternalist forms of
public health legislation, such as banning trans-fats, because
individuals value their health more than they value consuming
trans-fats (Conly 2013, 2014).


#### 3.2.2 John Stuart Mill, Liberty, and the Harm Principle



Likely no classic philosophical work is cited more often in the public
health ethics literature than John Stuart Mill's influential essay,
"On Liberty" (Mill 1869). In that essay, Mill articulates
and defends what has come to be called 'the harm
principle,' although Mill himself never used the term. The harm
principle has been interpreted as holding that the only justification
for interfering with the liberty of an individual, against her will,
is to prevent direct, non-consensual harm to others. The harm
principle is used to both challenge and support public health
policies.



Policies that interfere with conduct that does not produce direct harm
to others are sometimes criticized as government overreach in virtue
of failing to satisfy the harm principle (Jones and Bayer 2007; Quong
2011; Flanigan 2014b). For instance, opponents of motorcycle helmet
laws in Massachusetts explicitly invoked Mill when pressing their case
in court (Jones and Bayer 2007, 211). Conversely, the harm principle
is invoked to justify policies where harm to others is a paramount
concern, paradigmatically for various infectious disease control
interventions such as quarantine, isolation, and compulsory treatment
(Flanigan 2014a; Holland 2007; Navin 2016; Giubilini 2019). In liberal
democracies, the harm principle is often viewed as the most compelling
justification for public health policies that interfere with
individual liberty. For example, some claim that in the United States
it was not until the public became persuaded of the harmful effects of
"second-hand smoke" that the first significant intrusion
into smoking practices - the banning of smoking in public places
- became politically possible.



As with all such moral and political principles, questions remain
about the specification of the harm principle. There are questions
about the nature of harm, which is typically understood as setting
back the interests of individuals in which they have rights, including
economic interests. How significant must the threat of harm be, with
regard to both its likelihood and
 magnitude?[26]
 Are physical harms to the health of others to be weighted more than
economic harms or other setbacks to interests? It is undeniable that
individuals have much broader and more multi-dimensional interests
than narrowly self-directed physical ones. In that sense, it is not
unreasonable to have a fairly expansive understanding of
"harm" in a public health context. And given how
self-harming behavior influences others, some might question the
usefulness of sharply delineating self-regarding and other-regarding
harm. Others, however, charge that to interpret harm in this way is
too expansive (Jones and Bayer 2007).



For instance, consider the claim that one harms others by riding a
motorcycle without a helmet because, in so doing, cyclists risk
diverting important medical resources and personnel to the care of
people who get into accidents without helmets. Some have charged that
this construal of harm is unduly broad and, accordingly, this
construal of harm would entail that the harm principle permits various
government interventions that it should prohibit (Jones and Bayer
2007). Actions that are primarily self-harming frequently raise
concerns about how broadly to interpret the harm principle.



Because the impact of J.S. Mill on public health ethics cannot be
overstated, it is also important to recognize that Mill does not hold
that in the formulation of public policies all liberty interests enjoy
an equal presumption in their favor. Mill distinguishes interests that
are so important that they are immune from state interference,
interests that enjoy a presumption in favor of liberty, and interests
that enjoy no such presumption. The harm principle figures prominently
only when the second kind of liberty interest is involved. Some public
health interventions target the third kind of liberty interest, which
is not privileged in the same way. For example, is not clear that the
interest individuals have in eating foods with trans-fats is an
interest that enjoys a presumption in favor of liberty (Powers, Faden
and Saghai 2012).



Finally, it is worth mentioning that the harm principle has also
enjoyed more attention in public health ethics in recent years because
some of Mill's arguments have been subject to increased
scrutiny. One of Mill's arguments rests on the claim that
others, including the State, are not as well-positioned to know the
best interests of the individual as the individual herself, and the
individual has the greatest interest in her own well-being.
Accordingly, restricting the individual's liberty for her own
good will typically fail. Yet in recent years, some have drawn on
findings in behavioral economics and social psychology to challenge
this empirical claim about our self-knowledge, incentives, and
competence at pursuing our own interests - and thereby challenge
a claim that underlies the harm principle. This challenge can be
specified in various ways. One specification is that we are quite bad
at means-end reasoning due to ignorance; many would like to lead
healthy lives but lack knowledge of nutrition. Another version of this
is that individuals are bad at taking the requisite means to their
ends due to various cognitive biases, such as temporal discounting, or
lack of executive function. Individuals often know what is in their
best interest, but they still succumb to temptation or otherwise act
in ways that, arguably, are not conducive to what they as well as
others appreciate is in their interest (Conly 2013, 2014; Hanna 2019;
Sunstein 2013; Thaler and Sunstein 2003; 2008).



Needless to say, whether these empirical claims are correct will turn
on how we specify the requisite conditions for knowledge of
one's own best interest; what constitutes successfully acting on
one's best interests; and whether various cognitive biases do,
in fact, prevent individuals from acting on their own best interests.
Moreover, as we will see in the following section, even if we grant
that individuals are subject to the relevant shortcomings, this might
not undercut Mill's more general point.


#### 3.2.3 The Liberty Tradition



Regardless of how we interpret the harm principle or whether we accept
the various arguments for it, some liberals have appealed to the moral
significance of individual liberty to argue that various liberal
governments currently overstep their mandate when it comes to
promoting public health. To borrow a label from Eric Mack and Gerald
Gaus, this class of views constitutes 'the liberty
tradition.' (Mack and Gaus 2004; Brennan 2018). The liberty
tradition includes (non-left and anti-paternalist) libertarianism and
various forms of classical liberalism. In recent years, some advocates
of the liberty tradition have become increasingly interested in public
health ethics. Their views are distinctive insofar as they place a
significant normative premium on individual liberty, and they
typically do not countenance public health interventions based on
principles of justice other than principles of transfer or repair.
Moreover, these theorists frequently call out perceived excesses on
the part of the State's pursuit of public health.



One argument that frequently appears in this literature turns on
skepticism that government actors are sufficiently knowledgeable,
competent, or well-motivated to effectively improve the public's
health. In other words, some object to a wide variety of public health
interventions because of empirical claims about government actors,
including those who attempt to promote public health. While we have
seen that some challenge the presumption in favor of liberty by
providing evidence that individuals are not, in fact, especially good
at pursuing their own interests - due to ignorance, lack of
willpower, or cognitive bias - those in the liberty tradition
sometimes counter that even if we grant these empirical claims, it
does not follow that governments are any better. In other words, to
show that governments may interfere with free and equal persons, one
would need to show that policy can better secure the interests of
individuals than individuals themselves can. And when it comes to
public health interventions aimed at protecting individuals from
themselves, these theorists claim that we should doubt that government
actors are up to the task (Brennan 2017; Epstein 2004; Flanigan
2014b).



The argument so far rests on empirical claims about the questionable
competence and motivation of government actors, but many (if not most)
in the liberty tradition also oppose such interventions on normative
grounds as well. That is, even if public health officials were
competent, well-motivated, and knew the interests of individuals
better than individuals themselves, those in the liberty tradition
object that this still would not justify various public health
policies aimed at improving the health of citizens (see Brennan 2018;
Epstein 2004; Flanigan 2014b; Quong 2011; Anomaly 2011; Gaus 2010).
This point can be summarized with the following quote from David
Estlund (although Estlund uses it in a markedly different context):
"You might be right, but who made you boss?" (Estlund
2007). There are a variety of rationales for this normative
conclusion; some appeal to natural rights or broadly deontological
views, whereas others appeal to requirements of public justification
(more on this below). Others still draw on consequentialist reasoning
and appear to argue on grounds of efficiency or aggregate benefit.
That is, one could grant that overall benefit or efficiency would
justify public health interventions but deny that many public health
interventions are, in fact, efficient in the relevant ways (Brennan
2018).



The common thread in the liberty tradition is the moral presumption in
favor of individual liberty. This thread manifests in a variety of
ways in the context of public health. Some object to the ways in which
public health authorities provide information to citizens, such as
'traffic light' labels on foods, or especially graphic
images that depict the deleterious effects of smoking cigarettes
(Bonotti 2014). Others in the liberty tradition object to
government-created disincentives, such as soda taxes (Anomaly 2011,
2012). And, of course, proponents of the liberty tradition object to
restrictions of choice. For instance, some charge that regulatory
bodies, such as the FDA, illegitimately restrict individual liberty
when they prohibit individuals from purchasing and using drugs that
the FDA deems unsafe (Anomaly 2011, 2012; Flanigan 2014b, 2017;
Epstein 2004).



As with the harm principle, those in the liberty tradition are not
necessarily opposed to public health measures that prohibit people
from harming others. Yet we might wonder whether the liberty
tradition's premium on individual liberty constrains various
public health interventions that its proponents wish to endorse. An
interesting boundary case concerns whether members of the liberty
tradition can endorse vaccine mandates, especially for the
measles-mumps-rubella vaccine (Bernstein 2017; Brennan 2018; Flanigan
2014a; Giubilini 2019; Navin 2015). Collectively, parents who delay or
refuse vaccination can impose considerable risk on others,
collectively. Individually, however, each unvaccinated child does not
impose much risk. Given this low risk of harm, it would seem that the
most natural argument in defense of mandatory vaccination would be to
justify a restriction of individual parental liberty for the sake of
some sort of overall benefit. Insofar as libertarians view
interference with free and equal persons for promoting overall benefit
as illegitimate, however, this argument is not available for them. And
self-identified libertarians outside of academia have objected to
vaccine mandates as unjustified infringements on individual liberty.
(For instance, in 2015, Senator Rand Paul argued against vaccine
mandates because "The state doesn't own your children.
Parents own their children.") But this is a striking conclusion,
one that arguably counts against the plausibility of libertarianism
rather than against the legitimacy of vaccine mandates (Brennan 2018;
Bernstein 2017).



Perhaps in response to this position, some self-described libertarians
have attempted to defend vaccine mandates by arguing that allowing
one's child to go unvaccinated violates the rights of others
(Flanigan 2014a; Brennan 2018). If their arguments succeed,
libertarians can place a premium on individual liberty without being
committed to the ostensibly unpalatable implication that vaccine
mandates are illegitimate. In reply, however, some have objected that
if vaccine delayal or refusal violates rights in virtue of imposing
risk of harm on others, then so too do many other activities. Think of
the risks associated with owning guns or private pools or driving
large, fuel-inefficient cars. If this is correct, then a libertarian
defense of vaccine mandates is either unsuccessful or entails the
permissibility of widespread government restrictions of various
liberties, thereby raising the question as to whether the defense
genuinely counts as libertarian (Bernstein 2017).


#### 3.2.4 Libertarian Paternalism



Some have sought a third way between paternalism and the liberty
tradition. The proponents of this third way describe their view as
'libertarian paternalism.' (Thaler and Sunstein 2003;
Thaler and Sunstein 2008; Sunstein 2013). Libertarian paternalism aims
to be responsive to our well-documented shortcomings at pursuing our
own interests while also assuaging the liberty tradition's
concerns about paternalistic measures that disincentivize, restrict,
or eliminate choice. 'Nudges,' understood typically as
interventions in choice architecture, are the focus of libertarian
paternalism. And public health policy and liberal governments have
increasingly employed nudges to influence health behaviors in
desirable directions. Libertarian paternalism endorses interventions
by planners (such as public health authorities) in the environmental
architecture in which individuals decide and act in order to make it
easier for people to behave in ways that are in their best interests
(including their health), provided two conditions are satisfied
(Thaler and Sunstein 2003; Thaler and Sunstein 2008). First,
individuals are steered by these interventions in ways that make them
better off, as judged by themselves. Thus, in libertarian paternalism,
there is no attempt to contravene the will of individuals, in contrast
to what some hold to be a necessary feature of paternalism. Second,
the interventions must not overly burden individuals who want to
exercise their freedom in ways that run counter to their own welfare.
Thaler and Sunstein suggest, for example, that salads rather than
French fries could be made the default "side" on
restaurant menus, with diners free to request fries if that remains
their preference. By nudging people to eat salads, public health
outcomes would improve, but this intervention does not objectionably
interfere with individual liberty.



A key conceptual question about paternalism is whether the
interference with individual liberty must be against the person's will
(Beauchamp 2010). If this feature is a necessary condition of
paternalism, then libertarian paternalism is inappropriately titled.
Similarly, we might wonder whether the view is genuinely libertarian
in any informative sense since libertarianism is concerned to protect
individual liberty not only from coercion but also from other forms of
interference - most notably manipulation. Both supporters and
opponents of paternalistic interventions and those in favor of them
have charged that choice architecture is manipulative (Conly 2013;
Quong 2011).



From the standpoint of public health ethics, however, whether
libertarian paternalism is appropriately titled is less important than
any moral issues it raises and how it is justified. There is a large
and still-growing literature on the ethics of nudges, much of it
focusing on health (Engelen 2019; Levy 2017; Moles 2015; Muldoon 2018;
Noggle 2018; Saghai 2013a; Saghai 2013b; Soccia 2019; Quigley 2013;
Hollands et al. 2013; Quong 2011).



Those who believe that nudging is manipulative and that manipulation
is objectionable for the same sorts of reasons as coercion is
objectionable do not see libertarian paternalism as a viable middle
path between paternalism and the liberty tradition. Instead, they
argue that it is simply a different form of paternalism, one that
raises the same or very similar concerns about respect for individuals
as coercive paternalism (see Quong 2011; Noggle 2018; Soccia 2019).
Moreover, as noted above in the discussion of the liberty tradition,
some have granted that individuals are not good at the relevant kinds
of decision-making but deny that government actors are sufficiently
competent or well-motivated to design nudges that do more good than
harm. Whether this objection to libertarian paternalism sticks is a
complicated empirical question. But insofar as one accepts that
libertarian paternalism is manipulative, it does not avoid worries
from those in the liberty tradition.



Others, by contrast, see libertarian paternalism as too restrictive in
its conditions (and therefore too weak) to be applicable or adequate
for many public health contexts (Nuffield Council on Bioethics 2007;
Ubel 2009; Conly 2013; Conly 2014; Menard 2010). For instance, some
charge that libertarian paternalism is so concerned with individual
decision-making that it is not well-suited to producing public goods
associated with public health, nor is it effective at removing
underlying social determinants of bad public health outcomes (Menard
2010). And some restrictions of liberty have yielded significant
public health benefits, such as seatbelt or motorcycle laws, or bans
on the use of trans fats (Conly 2013; Conly 2014; Menard 2010). In
other words, those unmoved by the objections to restricting individual
liberty for the sake of realizing public health gains find the
libertarian paternalist proposal to be too concessive to the liberty
tradition. Because policies that conform to libertarian paternalist
criteria are too limited in their effects, libertarian paternalism is
unable to accomplish central tasks of public health - and
therefore does not satisfy those who reject the liberty tradition.


### 3.3 Normative Disagreement and Legitimacy



A small but growing literature addressing concerns about legitimacy
accepts a broadly liberal view of political morality but emphasizes a
slightly different set of concerns. More specifically, some argue that
the distinctive problems of public health ethics do not merely extend
to offering answers to moral questions about, say, whether the state
is permitted to try to reduce the incidence of obesity or whether such
a policy is just. Instead, the public health ethicist also faces moral
questions about the normatively appropriate ways for governments to
respond to disagreements among its citizen about how to distribute
resources or what considerations (if any) justify attempts to reduce
the incidence of obesity. That is, given the plurality of views about
the good life or justice, how should we ultimately arrive at
particular policies designed to promote public health? (Kristine
Baeroe et al. 2014; Anomaly 2011; Coggon 2012; Daniels and
Sabin 1997; Daniels and Sabin 2008; Bonotti 2014; Bonotti and Barnhill
2019)



Consider, for example, a municipal tax on sugar-sweetened beverages.
Public health authorities and policymakers may defend the tax by
pointing to the health burdens of rising obesity rates, which are
fueled by the consumption of sugary beverages that have no redeeming
nutritional value. Not everyone in the population affected by the tax
shares the values that underlie this position, however. Some citizens
reject the view that overweight bodies are somehow objectionable and
instead see them as something else entirely - large or
traditionally built bodies that are particularly attractive and
beautiful. Other citizens greatly enjoy the pleasures associated with
sweets, including sweetened beverages. These citizens might object
that they value sweets or having a beautiful body so much that they
are more than willing to assume any associated elevated risk of, say,
hypertension or diabetes. Here, there is genuine disagreement within
the affected population about standards of beauty, the worth of sweet
drinks, and how important these values are compared to health. (Other
disagreements concern what conception of health we should accept.) If
the soda tax is implemented in the name of promoting population
health, then a distinctive issue arises: the justification for the
soda tax appeals to a conception of what is overall valuable or good
that not all citizens accept. Disagreements about values also plague
public health concerns about justice. As we have already noted, there
are competing theories about why health matters, morally, as well as
whether health policy should aim to maximize overall population health
or reducing unjust inequalities in health status or health care
access. In the face of these kinds of disagreements about the good
life or justice, what makes public health policies legitimate?


#### 3.3.1 Public Reason Liberalism



One line of response to normative disagreement draws on work in
political philosophy that develops theories of public reason or public
justification (see the
 entry on public reason,
 and the entry on
 public justification).
 According to public reason theorizing, political power is legitimate
if and only if it is exercised in accordance with shared political
values or normative reasons that idealized members of a political
community can accept, would accept, could not reject, or would not
reject. To return to the earlier example, imagine that when defending
a soda tax to citizens, some legislators point to passages in their
preferred religious texts to support the tax. Other supporters claim
that smaller bodies are more beautiful than larger ones, and so we
should try to reduce the incidence of obesity. Neither of these
considerations would count as public reasons because reasonable
citizens have different aesthetic standards and disagree about which
(if any) religious texts are authoritative. According to public reason
liberalism, to justify a policy on the basis of these sorts of reasons
when some (idealized) citizens could not or would not accept those
reasons would be to run afoul of a requirement of legitimacy.



Public justification theorists also offer competing explanations as to
why political officials ought only to exercise political power on the
basis of values that satisfy requirements of public justification. For
instance, some argue that if policies are coercively enforced on the
basis of reasons that at least some citizens cannot accept, then we
fail to accord them the respect to which they are entitled. Others
focus less on coercion but nonetheless insist that considerations of
reciprocity or community generate requirements of public reason. (For
a variety of views about the normative significance of satisfying
requirements of public reason, see esp., Quong 2011; Rawls 1993; Gaus
2010; the entry on
 public reason;
 and the
 entry on public justification.)



Regardless of the preferred rationale, if one accepts the claim that
policies are legitimate only if they are justifiable on the basis of
public reasons, a great deal turns on how one specifies public
reasons. And such specifications have significant implications for the
scope of the mandate of public health. Some argue that public reasons
include reasons that are acceptable given shared epistemic standards
or values internal to a political culture, or a society's shared
conception of justice. Shared conceptions of justice or values in a
political culture are presumably consonant with a broad array of
public health interventions. For instance, imagine someone justifying
various programs that would provide access to healthier foods. This
person could invoke shared epistemic standards by pointing to evidence
that lack of access to adequately nutritious food as a child is
correlated with health outcomes that no rational or reasonable person
would want, such as diabetes. The person could invoke a shared
conception of justice by claiming that the neighborhood one is born
into should not determine one's health prospects (Bonotti and
Barnhill 2019; Moles 2013; Nielsen and Jensen 2016).



Others, by contrast, argue for more restrictive conceptions of public
reasons. For instance, one popular theory of public reason liberalism
claims that a reason is public if and only if it is compatible with
the 'motivational set' - which includes desires,
dispositions of evaluation, and patterns of emotional reaction -
of each (idealized) person (Bonotti and Barnhill 2019). Given that at
least a few (idealized) people will have a motivational set that is
incompatible with reasons offered in defense of a public health
measure, very few public health interventions will be supported by
public health reasons. Accordingly, this restrictive conception of
public reasons has restrictive implications for the mandate of public
health. Without further specification of what is meant by 'idealized'
taking this position may mean that virtually no public health measures
could ever be considered legitimate. Because public health policies
are by design intended to affect large numbers of people, it is hard
to imagine any public health policy, or indeed any kind of policy,
that is compatible with the motivational set of every affected person.
There will always be some who object to a proposed policy because it
is incompatible with their values. It is not, therefore, a coincidence
that those who endorse restrictive conceptions of public reasons also
tend to identify with the liberty tradition. To return to an earlier
example, one reason offered in defense of a soda tax is that the tax
will reduce overall obesity and thereby improve population health.
Yet, as we saw, at least some people have motivational sets that
prioritize having a larger body or enjoying sweet drinks over being
healthy - even if we assume a shared conception of health. Since
the reason given in defense of the policy is incompatible with the
motivational set of some individuals, it is not a public reason. If
the health argument was the only reason in defense of a soda tax, then
this version of public reason liberalism would claim that the soda tax
is illegitimate - it is not justifiable to (idealized) citizens
(Bonotti and Barnhill 2019).


#### 3.3.2 Authoritative Decision - Procedures



A distinct set of responses to disagreement-based concerns about
legitimacy focus on designing authoritative decision-procedures. Many
defend the claim that when we disagree about conceptions of the good
life or justice, allowing the majority to vote is normatively
attractive - or even strictly necessary - because it
respectfully resolves such disagreements (see, e.g., Waldron 1999).
Some theorists addressing topics in public health have taken a similar
tack. Given disagreement about various values relevant to population
health, some emphasize the importance of utilizing decision-procedures
that include stakeholder input, are transparent, or satisfy various
other values that are discussed in the context of debates about
disagreement and authority (Childress et al. 2002; Emanuel 2002; Goold
et al. 2005; Upshur 2002; Marckmann et al. 2015).



While less explored, a different set of questions about institutional
design and disagreement concerns the connection between administrative
agencies, public health, and democratic decision-making. Public health
decision-making often occurs within administrative agencies, where
unelected officials make value judgments about how to interpret or
implement legislation or executive directives (Weinstock 2016). This
feature of public health raises interesting legitimacy questions,
questions that also crop up for national defense or environmental
agencies or appointed judges. While of considerable interest and
importance for public health ethics, there has been relatively little
work addressing this topic. Adequately addressing this gap in the
literature would require bringing together work on democratic
legitimacy, the legitimacy of administrative agencies, and the
implications of both for public health, in particular.



Perhaps the most extensive discussion about legitimate
decision-procedures as an appropriate response to normative
disagreement concerns disagreements about priority-setting. To give a
sense of these debates and the broader philosophical issues they
raise, it is worth focusing on an especially influential framework for
assessing the legitimacy of decision-making about priority setting and
coverage issues relevant to public health, Norman Daniels's and
James Sabin's Accountability for Reasonableness
 (A4R).[27]
 Initially intended to inform decision-making by private insurance
companies, A4R has since been extended to apply to priority setting
generally and health technology assessment.



The underlying assumption of A4R is that it is easier to reach
agreement about a decision-procedure for how to go forward in the face
of substantive moral disagreements about the appropriate distribution
of health resources than it is to resolve the underlying substantive
disagreements themselves (Daniels 2000; Daniels and Sabin 1997;
Daniels and Sabin 2008). A4R articulates four conditions that, if
satisfied, render a decision-procedure legitimate - even when
individuals disagree about fundamental questions about values or
justice or the decision reached by the procedure. These four
conditions are as follows:


1. The publicity condition requires that rationales for resource
allocation must be publicly accessible.
2. The relevance condition requires that decisions must invoke
relevant reasons that 'fair-minded people' would accept,
where 'fair-minded people' are those who are
'disposed to finding mutually justifiable terms of
cooperation' (Daniels 2008, 118). Here, A4R draws on the
aforementioned work in public reason theorizing as well as work on
deliberative democracy; having fair-minded people offering reasons for
different policies will yield some degree of consensus, at the very
least about which reasons are relevant for making a decision (see the
 entry on democracy).
3. The revision and appeals condition requires that mechanisms be in
place to allow for challenges and revisions of decisions when new
evidence or arguments come to light.
4. The regulative condition (also referred to as the enforcement
condition) requires that there be voluntary or public regulation of
the process of decision-making.



Despite its popularity, many object to A4R. A fundamental objection
questions the assumption that motivates A4R - that arriving at
agreement on a decision-procedure is more feasible than arriving at
consensus on substantive values (Friedman 2008; Dawson and Verweij
2014; Sabik and Lie 2008). Others debate whether the publicity and
revision and appeals conditions are sufficiently democratic (Friedman
2008, 102) or whether publicity is necessary for legitimacy (de Fine
Licht 2011; Martin and Giacomini and Singer 2002).



Perhaps the most scrutinized aspect of the A4R is the relevance
condition. As we saw in the discussion of public reason, political
theorists disagree about which sorts of reasons count as public.
Daniels claims the only relevant class of reasons are those that
fair-minded people would accept. He argues that to allow every
consideration to count equally would make a consensus impossible and
that it would be misguided to accord significant weight to
considerations that fair-minded people would reject (Daniels 2009,
144).



Yet narrowing the class of reasons that count in favor of decisions
leads to its own problems. The fair-minded and unfair-minded alike
might very well disagree about who counts as fair-minded, and,
accordingly, about which sorts of reasons should count when making
policy decisions (Hasman and Holm 2005; Friedman 2008). This leads to
a puzzle about how to determine who counts as fair-minded -
should we use another procedure that people could accept in order to
determine which reasons count as those that fair-minded people would
invoke? And what should we say to those who espouse reasons that are
deemed unsuitable because only the unfair-minded would advance
them?



A more fundamental worry is that the focus on which reasons count
complicates rather than helps when trying to reach an acceptable
resolution to disagreements about various questions relevant to public
health. That is, we need not just to resolve disagreements about the
importance of various competing normative considerations when engaged
in priority-setting, but to resolve disagreements about which
considerations and which reasons should be
 excluded.[28]
 Perhaps the most significant worry about the relevance condition is
that it avoids questions of legitimacy that arise due to normative
disagreement rather than answering such questions. It is not difficult
to come to a consensus if we only consider the views of those who
antecedently agree. Presumably, however, if we accept the importance
of reaching a decision that is acceptable to people who ultimately
disagree with it, then gerrymandering the array of reasons that are
relevant to decision-making would seem to be counter-productive.


### 3.4 Alternatives to Liberalism



Finally, a different class of views rejects altogether the position
that liberalism should be given pride of place in thinking about the
justification of public health interventions. Recurring charges
include that liberalism fails to accommodate communal values like
solidarity; (Dawson and Jennings 2012); that the conception of persons
as free and equal involves a skewed account of human nature; and that
liberalism lacks the resources to provide an adequate conception of
the public or the common good. For instance, in an agenda-setting
paper for a non-liberal feminist framework for public health ethics,
Baylis, Kenny, and Sherwin write, "We agree with Bruce Jennings
that '[t]he liberal framing of public health ethics is useful up to a
point, but it is ultimately too narrow to provide normative
justification for - or adequate moral insight about - the
kinds of social change public health must strive to bring
about,'" (Baylis and Kenny and Sherwin 2008,
 196).[29]



Civic republicans agree with liberals that freedom is a central
- or perhaps the central - value of political morality.
Yet republicans offer a definition of freedom that rivals the one that
the liberal proposes. Rather than espousing the liberal position that
freedom consists of negative liberty or freedom as non-interference,
republicans claim that conditions of non-domination constitute freedom
(Pettit 1997; Pettit 2012). While there are a variety of definitions
of non-domination, two claims typically lie at its core: first, to
enjoy true freedom, one must be free from arbitrary interference, and
second, one's freedom from arbitrary interference must be robust
- one must enjoy it in a variety of nearby possible worlds. An
oft-employed example to illustrate the distinction between
non-interference and non-domination is the case of an enslaved person
who has a benevolent slave-owner who permits the enslaved person to do
whatever they wish and provides the enslaved person with plentiful
resources. Yet the enslaver could, if they so chose, prohibit the
enslaved person from using the provided resources or performing
various actions. Because the enslaver has this power over the enslaved
person and could exercise it, the enslaved person does not enjoy
genuine freedom. Instead, the enslaved person is dominated (Lovett
2001; Lovett 2018; Pettit 1997; Pettit 2012; Skinner 1998; Skinner
2008; see also the
 entry on republicanism).



Republicans argue that the power to interfere is non-arbitrary -
and thus non-dominating - when it is genuinely public. In order
for power to be genuinely public, it needs to be subject to procedures
that track the interests of those subject to it, typically citizens.
For procedures to track these interests, republicans often argue that
constitutionally protected rights, as well as a representative and
reasonably well-functioning democracy, are all necessary. When such
conditions are satisfied, the public exercises political power in a
way that ensures that each is free. When political institutions fail
to track the interests of citizens in the requisite ways, however,
citizens are subjection to the arbitrary will of states. Accordingly,
rather than construing legislation as freedom-restricting, when such
legislation tracks the interests of citizens and enables individuals
to avoid being subject to the arbitrary will of others, democratic
legislation enhances freedom (Pettit 1997, 2012).



When it comes to public health, some have claimed that civic
republicanism is better-suited than liberalism as a foundational
theory (see Jennings 2007; Jennings 2009; Weinstock 2016). Rather than
focusing on a purported tension between government action that
promotes public health and freedom as non-interference, republicans
argue government has an indispensable role in ensuring that
individuals are not subject to the arbitrary will of others as a
consequence, for example, of poverty or the need to maintain
employer-provided medical insurance. One natural extension of
republican thought in the domain of public health concerns how
powerful private actors can subject us to their arbitrary will through
manipulative advertising or pricing, and unhealthy labor practices. On
this proposed application of republican theory, a major role of public
health is to prevent domination by these powerful private actors.
Public health agencies are thus described not as interfering with
freedom, but as enhancing it.



Various liberal theorists of public health resist the republican
characterization of their view and the republicans' claims about the
defects of liberalism (Rajczi 2016; Radoilska 2009). Moreover, while
the republican approach to public health is provocative, it faces
significant challenges. Some of these problems apply to republicanism
generally. For instance, some object that republicanism gives short
shrift to the moral importance of non-interference (Larmore 2001; Wall
2001; List and Valentini 2016). Others have objected that the
'non-arbitrary' qualification of being subject to the will
of another yields counter-intuitive results. For instance, if someone
is non-arbitrarily imprisoned, then they certainly seem to be
dominated in any ordinary understanding of 'domination.'
However, it seems to follow from the republican definition that the
individual is not dominated (List and Valentini 2016).



Other concerns about republicanism focus on the central importance of
democratic decision-making to ensure freedom from non-domination, and
here some distinctive issues for public health ethics emerge. As we
have noted, public health interventions are frequently implemented or
decided upon by agencies that have a relatively limited democratic
pedigree. Advocates of public health can defend the large role of
administrative agencies by appeal to a range of justifications,
including realizing conditions of justice, overall benefit, or even
some form of paternalism, but it is less clear what republicans can
say here (Weinstock 2016). Some might insist that, contrary to what
some republican health ethicists claim, republicanism limits the scope
of public health as currently practiced, since the relatively
attenuated democratic pedigree of administrative agencies limits their
mandate. On this sort of view, public health should be more subject to
democratic control. But making public health more democratic to avoid
worries about non-domination so understood engenders its own problems.
One worry is that the rich notions of the public and citizenship as
proposed by civic republicans are objectionably demanding, given the
amount of time individuals would have to spend engaged in the work of
politics (Latham 2016). More fundamentally, to claim that public
health needs to be much more democratic and, therefore, that it enjoys
less legitimacy than public health advocates currently claim appears
to undercut the initial motivation for adopting republicanism: to find
a theory that is better-suited than liberalism for legitimating a
broad mandate for public health.



Another worry specific to public health ethics concerns how much of
the public health portfolio actually engages in activities that
promote freedom as non-domination. While many public health
interventions, such as those that regulate the health claims of food
and drug manufacturers, can plausibly be construed as helping to
advance freedom as non-domination, many others are harder to fit under
this description. Consider, for example, infectious disease
surveillance and vaccine programs, or educational campaigns promoting
physical activity. It is something of a stretch to claim that these
kinds of public health policies and practices constitute an
improvement to freedom as non-domination. But even if we accept such a
description, any advances to freedom as non-domination seem to be a
desirable side effect of the policy rather than the real grounds for
enacting it. Others - e.g., (Viens 2016) - charge that the
emphasis on individual freedom as non-domination is not much of an
improvement over individual freedom as non-interference, since public
health should ultimately be concerned with the well-being of
populations rather than individuals.



Perhaps because of these concerns, some who take a republican approach
to public health ethics work with a more expansive understanding of
the appropriate role of government in public health, one that includes
advancing the common good as well as promoting freedom as
non-domination (Jennings 2007, 46-47). Yet if the promotion of the
common good ultimately justifies a justification for public health
policy, then it would seem that we are stuck with something close to
the familiar tension between individual freedom, albeit construed as
freedom as non-domination, and the common good - the tension
that animates the concerns of those operating out of the liberal
tradition. And just as the liberal faces questions about how to
reconcile tensions between the common good and freedom as
non-interference, it would seem the republican faces difficult
questions about how to reconcile tensions between the common good and
freedom as non-domination.


### 3.5 Frameworks that Include both Justice and Legitimacy Considerations



As we noted in the introduction to this entry, many real-world
challenges in public health require attending to both questions of
justice as well as questions of legitimacy in order to provide an
adequate analysis of what is morally at stake. In keeping with this
observation, some have proposed approaches to public health ethics
that accord normative importance to individual liberty while also
allowing for the possibility that, depending on the context, other
moral considerations may justifiably outweigh or override this
normative
 importance.[30]
 Several influential frameworks for public ethics that are meant to
provide practical guidance to public health professionals who wish to
consider ethical issues in their decision-making are structured around
this view (Kass 2002; Childress et al. 2002; Marckmann et al. 2015;
Petrini 2010; ten Have et al. 2010). A common thread in these
approaches is an endorsement of something like principlism developed
by Tom Beauchamp and James Childress in their influential work on
biomedical ethics (Beauchamp and Childress 2019). Ethical
decision-making is understood to require the balancing or weighing of
different moral considerations whose relative relevance or importance
can only be discerned in the context of a specific policy or
action.



In addition to concerns about legitimacy, individual liberty and
autonomy, justice, overall benefit and efficiency, these models
generally include other substantive moral considerations such as
expressing solidarity, building trust, and giving reasons to the
public (Childress et al. 2002) as well as procedural conditions to
help guarantee a fair decision process (Marckmann, et al. 2015;
Bernstein et al. 2020).



Each of these substantive moral considerations can provide a prima
facie justification for implementing or rejecting a policy. However,
when these considerations conflict, we must assess their relative
importance for the public health policy at issue. Ultimately, both
public health ethicists and public health decision-makers need to
employ considerable practical judgment to weigh these different kinds
of considerations in a particular public
health context to determine what policy, if any, ought to be
implemented.