HCA WK 5

328 journal of law, medicine & ethics

From Health Care Reform to Public Health Reform Micah L. Berman

Introduction According to Congressional Budget Office projec- tions, the Patient Protection and Affordable Care Act (Affordable Care Act or Act) — assuming it survives the pending legal challenges and is fully implemented — will provide health insurance to 34 million additional Americans by 2021.1 This will increase the percentage of non-elderly Americans with health insurance from the current rate of 83 percent to 95 percent.2 Although enactment of the Affordable Care Act constitutes a historic step forward in the nearly century-long effort to ensure universal health insurance coverage, rela- tively little in the Act focused on the potentially trans- formative impact of public health efforts that prevent disease. Chronic diseases such as heart disease, can- cer, stroke, and diabetes are now responsible for more than 75 percent of health care costs, and reducing the incidence of these diseases — which are often entirely preventable — could dramatically improve the nation’s physical and fiscal health.3

The Affordable Care Act could have been an oppor- tunity to reorient the U.S. health care system towards a focus on preventive health. Currently, “more than 95 percent of federal and state dollars are spent on medical care and research, and only 1 to 2 percent is directed toward prevention.”4 A strong medical system is undoubtedly needed to help relieve illness and suf- fering, but expanding the availability and quality of medical care would likely reduce preventable deaths by only 10 to 15 percent.5 A far greater proportion of preventable disease and mortality is attributable to social, environmental, and behavioral factors that “do not arise from lack of medical care [and] cannot be solved by medical care.”6 A shift in focus towards addressing non-medical determinants of health is long overdue. Unfortunately, though, nothing in the Affordable Care Act signaled a paradigm shift. The Affordable Care Act did include a variety of provisions and programs focusing on public health, primar- ily in Title IV of the Act. These provisions, however, constructed the concepts of “prevention” and “public health” in a limited and narrow way — one that is mis- aligned with the way that most public health experts would conceptualize their field.7 As a result, the public health measures included in the Act are unlikely to be effective in reducing the prevalence of the most deadly and expensive chronic diseases.

Part I of this article will briefly summarize the argu- ment that I have recently made elsewhere with respect

Micah L. Berman, J.D., is an Assistant Professor at New England Law — Boston and Director of the Center for Public Health and Tobacco Policy. He is a graduate of Brandeis Uni- versity and Stanford Law School.

public health reform • fall 2011 329

Micah L. Berman

to the Affordable Care Act.8 My contention is that the public health provisions included in the Affordable Care Act reflect an “individualist/biomedical paradigm” of

preventive health that is at odds with the lessons of public health scholarship. This paradigm focuses on what can be done by or to individual patients, and it leads to policies that seek to either (a) encourage more responsible decision making about personal health, or (b) promote early detection of disease by improving or expanding access to biomedical screening and test- ing. By contrast, a broader “public health paradigm” more aligned with public health scholarship would look beyond the individual patient and try to uncover and address the population-level factors that contrib- ute to poor health. This paradigm “emphasizes the environmental and social determinants of health and how they affect the well-being of populations [and not just individuals],” and leads to policy interventions designed to address the population-level structures contributing to poor population health.9

If public health scholarship clearly supports a pub- lic health paradigm of prevention, why was this para- digm not reflected in the provisions included in the Affordable Care Act? This is the question I seek to address in Part II. At one level the answer is obvious: politics. The Obama Administration overcame long odds to pass a health care reform bill, and it likely had little appetite (or political incentive) to engage in a separate debate with the Republican Party over the proper direction of public health policy. But this is an unsatisfactory, or at least an incomplete, answer. Poli- tics is simply a reflection of our culture and society; the key question is why our culture and society are so deeply attached to an individualist/biomedical para- digm at odds with public health research. Why does this paradigm dominate our collective understand- ing of public health issues, and why is it that policies derived from the public health paradigm lack public support? The discussion in this section will focus

on two issues: (1) a cultural emphasis on personal responsibility, and (2) influential industries that profit at the expense of public health. This section will also

consider how public health advocates might seek to respond to these powerful cultural and economic forces that inhibit adoption of a broader public health paradigm.

Finally, Part III of this article will explore how legal scholarship could help develop the legal and theoretical underpinnings of a public health reform agenda that would reflect the public health paradigm. I argue that more clearly defining “public health law” as its own, distinct academic field with its own normative objectives could provide a stronger platform from which to inform and shape political discussions relating to public health policy.

I. The Public Health Paradigm, the Individualist/Biomedical Paradigm, and the Affordable Care Act Public health scholars and practitioners analyze health issues through what I call the “public health paradigm”: a perspective that seeks to detect, under- stand, and counteract the conditions that can cause death and disease in a given population, as opposed to a worldview that focuses on preventing or treating disease in individual patients.10 While medical care operates on the level of the individual, “public health regards the community as its patient, trying to improve the health of the population.”11 In their 1988 book on public health, British scholars John Ashton and How- ard Seymour employed the metaphor of rescue work- ers along a fast-moving river to explain public health’s population-level focus:

Every so often a drowning person is swept along- side. The lifesaver dives in to the rescue, retrieves the ‘patient’ and resuscitates them. Just as they have finished another casualty appears alongside. So busy and involved are the lifesavers in all of this rescue work that they have no time to walk upstream and see why it is that so many people are falling into the river.12

Ashton and Seymour used this metaphor to argue that “what is needed generally among health workers is more ‘upstream thinking’” that would reorient the health care system towards addressing and preventing the causes of ill health.13

Public health research has clearly demonstrated that, in comparison to medical treatment, “upstream” interventions are more effective at impacting the

The key question is why our culture and society are so deeply attached to an individualist/biomedical paradigm at odds with public health research. Why does this paradigm dominate our collective understanding of public health issues, and why is it that policies derived from the public health paradigm lack public support?

330 journal of law, medicine & ethics

S Y M P O S I U M

health of the population because “[t]reating high-risk or diseased individuals does not have much impact on population health levels overall, but changing a risk factor across the whole population by just a small (and often clinically insignificant) amount can have a great impact on the incidence of a disease or problem in a community.”14 For example, modestly reducing the amount of sodium in processed foods would likely prevent far more stroke deaths than either medically treating every person with hypertension (which would be both logistically impossible and unaffordable) or building more specialized stroke units in hospitals (which would likewise be far more expensive).15 This is because reducing sodium levels across a wide swath of the population would significantly reduce the number of people who develop hypertension in the first place. Even though it might be difficult to detect the impact of such an intervention in any particular individual, the population as a whole would exhibit demonstrably lower levels of hypertension and stroke.

Despite the evidence supporting population-based interventions, the public health provisions of the Affordable Care Act reflect what I have termed the “individualist/biomedical paradigm.” Under this para- digm, policymakers conceptualize preventive health in highly individualistic terms, and the resulting policy measures attempt to prevent disease by either provid- ing better access to screening and testing services or by improving personal decision making.16 To return to Ashton and Seymour’s parable, policymakers employ- ing the public health paradigm might build walls to prevent people from falling into the river. By con- trast, policymakers operating from the individualist/ biomedical paradigm might suggest that the proper response was to hire more rescue workers or, perhaps, that “it is the people themselves who are jumping and the sickness is their own fault.”17

The “biomedical” portion of the individualist/ biomedical paradigm can be illustrated by the Act’s requirement that all insurance companies offer full coverage for clinical preventive services recom- mended by the United States Preventive Services Task Force, without any cost-sharing by the enrollees.18 Thus, everyone with health insurance will now have free access (at least in the sense that no co-payment is required) to colonoscopies, cholesterol tests, mam- mographies, and other assessments, if they are in the recommended demographics for such examinations. Such testing, by revealing the early onset of disease and allowing for early treatment, will undoubtedly save many lives. On the other hand, the patient-by- patient approach embodied by the Act is likely to be exceedingly expensive and the false-positive results produced by widespread screening may lead to unnec-

essary surgeries and other medical treatments.19 More fundamentally, regardless of the positive benefits of testing and screening, those measures do not help pre- vent disease or the onset of risk factors: they only detect disease and allow for earlier medical interventions. What is troubling about the Act is its focus on clini- cal preventive services to the exclusion of non-clinical, “primary prevention” interventions that would seek to reduce the occurrence of such diseases and risk factors. This focus on clinical preventive measures mirrors the U.S. health system’s general emphasis on biomedical treatment and its lack of attention to (and funding for) population-based public health measures.

The second prong of the individualist/biomedi- cal paradigm — the “individualist” portion — posits that poor health is, at least in large part, the result of poor personal decision-making. The corollary to this notion is the conclusion that more health education is needed to help people make better choices. This nar- rative of disease causation has become more prevalent as behavioral risk factors such as smoking, obesity, and alcohol use have become some of the leading pre- ventable causes of death.20 However, this individualist focus is, again, misaligned with the findings of public health scholars (as well as the research of a wide range of social scientists). As David Yosifon and Jon Hanson have written, “[T]he model of human agency we so often work with — as laypeople, as legal scholars, and as policymakers — is . . . not just wrong, but clearly and dangerously wrong, in that it drastically under- states both internal and external situational influ- ence over our perceived cognitions, attitudes, will, and behavior.”21 People are, to use Yosifon and Han- son’s term, “situational characters” powerfully shaped by their environments.22 Because people’s decision making is so deeply influenced by the social, cultural, environmental, and economic contexts in which such decisions are made, health education campaigns that seek to alter individual behaviors have been shown, in example after example, to be ineffective if not coupled with more systemic environmental changes.23

Nonetheless, the Affordable Care Act’s approach to behavioral health issues strongly reflects the belief that maintaining good health is primarily a matter of indi- vidual decision making, or, as it is often framed, per- sonal responsibility. The Act conceptualizes the source of these problems as the lack of adequate information, and it prescribes more information as the remedy. For example, the Act will fund a $500 million educational campaign — complete with a website and TV com- mercials — intended in part to “encourage[] healthy behaviors linked to chronic disease.”24 Another section of the Act focuses even more narrowly on one-on-one educational efforts, providing funding for commu-

public health reform • fall 2011 331

Micah L. Berman

nity health centers to develop “individualized well- ness plans” for their clients that address issues such as exercise, nutrition, and substance abuse.25

Framing behavioral health issues as matters of per- sonal responsibility resonates deeply with the Ameri- can psyche. If not linked to broader, population-based interventions, however, such measures are danger- ously wrong because they can lead to a vicious cycle of victim-blaming and ineffective policy responses. As Fran Baum writes:

The individualist focus of most behavioral health promotion creates an undercurrent of victim-blam- ing, which maintains that individuals are respon- sible for their own health status, whatever their social and economic circumstances. The policy consequences of a belief in victim-blaming are that health promotion policies focus on the provision of information and direct support to behavior change, rather than on changing people’s environments. Policies that seek to change environments will not be perceived as effective because individual behav- ior is seen as the overriding causal factor.26

In other words, the framing of behavioral health solely as an issue of personal responsibility distracts atten- tion from the “upstream” causes of ill health and more efficacious policy responses that would seek to address those causes. For this reason, corporations that con- tribute to poor health (e.g., tobacco and fast food com- panies), themselves an important “upstream” cause of disease, spend a considerable amount of advertising and lobbying dollars promoting the personal respon- sibility narrative.27 This narrative leads directly to pol- icy responses, such as those included in the Affordable Care Act, that do not pose a significant threat to their interests.

II. Overcoming the Obstacles to Public Health Reform As explained in the previous section, the Affordable Care Act exemplified the type of public health policy- making that emerges from the individualist/biomedi- cal paradigm. Why, despite the clear findings of public health research, did Congress base its policymaking on this outmoded paradigm? What can be done to align Congress’s policymaking with the public health paradigm?

Congress likely follows where public opinion leads, so the key questions are why public opinion seems to be so deeply attached to the individualist/biomedi- cal paradigm and what arguments or actions could lead to broader public acceptance of the public health paradigm. Although there are certainly many other

pertinent topics to examine, I will focus on two that I believe to be at the core of the issue: (1) a culture of anti-paternalism and personal responsibility, and (2) influential disease-promoting industries. What follows is not a thorough examination of these issues, but an attempt to start a discussion about whether and how public health advocates can shift the discourse sur- rounding public health issues and, eventually, impact the paradigm applied to public health policymaking.

A. Anti-Paternalism and “Personal Responsibility” Public health — the attempt to “enable people to lead healthier and safer lives”28 — is an inherently commu- nitarian pursuit in tension with “a culture that prizes autonomy and does not always look fondly on govern- ment intervention.”29 As the Affordable Care Act was being debated, the constant refrain from members of Congress — both Republicans and Democrats — was that policy measures should promote “personal responsibility.”30 Congress’s emphasis on personal responsibility as the primary means of addressing public health problems appears to reflect those of the public at large: a 2004 ABC poll found that “more than eight in 10 cite poor eating habits and a lack of exercise as the leading causes of obesity, placing these well above other possible factors, such as the market- ing of fattening foods to children, restaurant portion sizes or a lack of information.”31

In this political context, it is not surprising that, to the extent that public health provisions were included in the Act, they focused largely on educational cam- paigns, workplace wellness programs, and other such measures that construct health as primarily a matter of personal choice. While seeking to encourage or incen- tivize healthier decision making, the Act largely ignores social, economic, and environmental constraints that limit people’s ability to make healthier choices. More- over, the modest efforts made to include population- based preventive approaches in the Act were ridi- culed and minimized. For example, Rep. Tim Murphy (R-PA), the chair of the Republican Doctors Caucus, dismissed public health infrastructure projects (such as bike trails that would make it easier for people to engage in physical activity) as irrelevant to health and more suited for inclusion in a transportation bill.32 Similarly, Senator Mike Enzi (R-WY) referred to fund- ing that could be used for community health projects as a “slush fund for . . . pork-barrel projects.”33 Since the Act’s passage, the House of Representatives (now under Republican control) has voted to eliminate the limited amount of community-oriented public health funding that was included in the law.34

This deep-seated antipathy to population-based public health measures is, for at least some members

332 journal of law, medicine & ethics

S Y M P O S I U M

of Congress and the public, rooted in a political ide- ology of limited government and individual liberty. Salus populi suprema lex (“the health of the public is the highest law”) is a legal maxim that may resonate with many public health experts, but others may put other priorities ahead of health. As Wendy Parmet dis- cusses elsewhere in this symposium issue, the opposi- tion to the Affordable Care Act’s individual mandate35 is, at its core, based on a broad conception of individ- ual rights.36 Opponents of the insurance mandate may well concede that the law will reduce the number of

uninsured, but they still oppose it for ideological rea- sons related to their conception of the proper role of government. Ancillary to such ideological arguments, opposition to government regulation is often framed as concern about a “slippery slope” towards more invasive and burdensome government regulation. Mark Hall, a health law scholar who has been criti- cal of attempts to reorient public health law towards addressing environmental determinants of health, presents this argument: “[A]ny widespread health problem can fairly easily be characterized as a public goods issue. Following seat belts and tobacco, public health officials are turning their attention to obesity. Following this, who knows what?”37

For others, opposition to public health interventions may be less ideological and more intuitive. People experience their own battles with behavioral health issues such as nutrition, exercise, and smoking as tests of individual willpower. They do not appreciate the degree to which their decisions are products of their environments, and — to put it bluntly — they do not want to.38 Psychological research suggests that people are deeply invested in the notion that they are fully autonomous agents impervious to external influence.39 Acknowledging otherwise is taken to be a concession of weakness or personal failure. As Adam Benforado and Jon Hanson write, even in the face of compelling evidence to the contrary, “[w]e like to believe that we are independent, intelligent consumers of life’s many options — the attitude-driven, reasoning, choice-mak- ers of commercials and Westerns.”40

Thus, powerful political, social, and even psycho- logical forces underlie the personal responsibility nar- rative. This narrative, however, obstructs adoption of population-based public health initiatives because it leads to policy results that focus narrowly on individual conduct and ignore broader determinants of health. Any attempts to move the focus beyond the individual are derided as both unnecessary and paternalistic. The personal responsibility narrative is therefore, despite its popularity, inherently problematic and deficient. But the findings of public health scholarship will not

themselves lead to a shift in public opinion. In addi- tion to scientific arguments, public health advocates must persuasively make the ideological and political case for shifting towards a public health paradigm.

1. resisting the “paternalism” label Given the current political environment, public health advocates quite reasonably seek to avoid being labeled as “paternalists.” As a result, public health advocates, recognizing that they are engaged in a communitar- ian profession in an individualistic era, carefully and modestly frame their arguments. Too often, however, the arguments employed to overcome the charge of paternalism adopt the dominant individualist/bio- medical paradigm as the initial point of reference. Such approaches are understandable but ultimately self-defeating, as they only further entrench the indi- vidualist/biomedical paradigm in the public’s mind. Three different arguments are commonly employed by public health advocates to parry the charge of paternalism; the first two try to operate from within the individualist/biomedical paradigm, and the third tries to shift the frame of reference, but in the wrong direction.

First, some have sought to deny that public health measures are in any way paternalistic (i.e., that they are intended to prevent an individual from harming himself or herself ) by affirmatively embracing the lan- guage of personal responsibility. Kelly Brownell and colleagues, for example, have written in the context of obesity: “We believe the path to progress is not dis- puting the fundamental belief in responsibility, but

The personal responsibility narrative is, despite its popularity, inherently problematic and deficient. But the findings of public health scholarship

will not themselves lead to a shift in public opinion. In addition to scientific arguments, public health advocates must persuasively make the ideological

and political case for shifting towards a public health paradigm.

public health reform • fall 2011 333

Micah L. Berman

embracing it and developing public health interven- tion in its service. Maximizing responsibility is pos- sible only when the environment supports it.”41 Thus, for example, they argue that the regulation of food ingredients (e.g., trans-fats bans or limitations on use of salt) can be reconceptualized as an aid to individual decision making because such regulation “prompts promising dietary defaults.”42 Similarly, they write that taxing sugar-sweetened beverages or unhealthy foods can be seen as a “means of creating better defaults.”43 While Brownell is certainly correct that governmental policies — and the default conditions set by such poli- cies — have a significant impact on health, this insight should be a justification for changing the policymaking paradigm, not for reaffirming personal responsibility as the central analytical focus. Banning trans-fats is an example of the government taking action (in effect, making decisions) at the expense of individual choice, not a means of enhancing individual decision mak- ing. Likewise, taxation operates as a powerful lever to influence individual choices, but it should be con- ceded that such “sin taxes” are intentionally designed to alter decision making, not to enhance personal choice. Brownell is right to recognize the rhetorical force of the personal responsibility argument, but the inherent contradictions in his argument make this an unsustainable messaging strategy.

Second, public health advocates, while otherwise embracing the language of personal responsibility, reject that approach as an unsatisfactory reason for failing to take action when the health of children is involved. For example, First Lady Michelle Obama, who has been campaigning against childhood obesity, recently advised the Grocery Manufacturers Associa- tion that its members should limit their marketing of junk food to children because “whatever we believe about personal responsibility and self-determination, I think we can all agree that it doesn’t apply to kids.”44 Viewing any issue (e.g., obesity, tobacco use, drug use) solely through the lens of protecting children, however, comes with risks of its own. Highlighting the need to intervene on behalf of children who are incapable of making informed decisions for themselves para- doxically reinforces the notion that, when adults are involved, personal responsibility is all that is needed. Child-focused interventions can consequently end up undercutting support for more broadly targeted public health efforts. For example, tobacco companies have eagerly embraced efforts to frame the issue of tobacco use as solely an issue of youth access. By attempting to keep the focus on youth, they are able to reinforce the public perception that smoking is an acceptable “adult choice” (i.e., solely an issue of personal responsibility)

and that the government has no business interfering with the “right to smoke” of adult consumers.45

In a somewhat different vein, others have argued that public health measures such as motorcycle hel- met requirements are not paternalistic because the real goal of such policies is to protect the public, not the individual involved, from harm.46 This argument posits that because behavioral health risks impose costs on the public, the regulation of such conduct is justified, even if purely paternalistic regulations would not be. Therefore, even though failing to wear a motor- cycle helmet is a behavioral health risk that threatens the safety of only the individual involved, regulation is appropriate (so the argument goes) because the trau- matic injuries incurred by helmetless riders impose higher health care and social services costs on the public at large.47 This argument at least attempts to shift the point of reference from the individual to the broader community. As Lawrence Gostin has written, however, the focus on costs proves too much.48 In our interconnected society, practically any health-related behavior can be found to impose some economic exter- nalities on others, so nearly every public health mea- sure could be reframed as an issue of reducing costs. More fundamentally, as Gostin writes, “The ‘economic burden’ argument is unsatisfying because it asserts that the primary justification for public health regu- lation is cost saving rather than avoidance of human suffering and disability.”49 Simply put, saving costs is a fortuitous side effect of public health measures, not the primary argument in their favor. Even if medical care were limitless and free, public health advocates would still seek to use government policy to reduce preventable disease and death.50

2. furthering the public health paradigm Rather than rely upon commonly used arguments, particularly those that reinforce the individualist/ biomedical paradigm, public health advocates must seek to change the way that the public conceptualizes issues of public health. The public health paradigm has the potential to reshape how the public perceives and processes public health issues by shifting the level of analysis from the individual to the population. This paradigm leads to recognition that in order to improve public health, collective action is an inescapable neces- sity. As a result, policy debates utilizing the public health paradigm start in a dramatically different place than those employing the individualist/biomedical paradigm. Rather than focusing on what individu- als can do to keep themselves healthy, the discussion starts by considering what society can do collectively to improve the population’s health.51

334 journal of law, medicine & ethics

S Y M P O S I U M

Because the public health paradigm runs so dra- matically counter to commonly accepted patterns of processing and analyzing health issues, public health advocates face a daunting messaging challenge. The argument for this new paradigm must therefore be constructed in a deliberate and thoughtful way that addresses or minimizes the inevitable concerns about paternalism and government overreach. Although setting forth a comprehensive messaging strategy is beyond the scope of this article, I propose the follow- ing preliminary suggestions.

Use obesity as an example and focus on commu-•  nal responsibility. The first step is to forthrightly make the argument that a new paradigm is needed, i.e., that the focus on personal respon- sibility does not explain our current health chal- lenges and does not provide a reasonably plau- sible roadmap for addressing them. The current obesity epidemic provides the most powerful yet accessible illustration. The fact that nearly every country is encountering a rise in obesity as its national wealth increases suggests that struc- tural and cultural factors are far more important sources of the problem than a mass failure of individual willpower.52 A sudden, widespread breakdown in personal decision making is not the source of our rapidly rising obesity rates.53 The obesity epidemic has resulted in large part from collective, societal choices (or, in some cases, by our collective failure to act), and, as a result, it can only be addressed through commu- nal policymaking. Thus, communal responsibil- ity is just as important (and indeed, as an empir- ical matter, it is more important) than personal responsibility. Learn from past efforts.•  As previously discussed, the benefits of preventive health policies accrue generally to the public, but their impact may be nearly impossible to detect in any given individ- ual. This suggests that even if the public comes to understand that communal responsibility is necessary to address public health issues, a clas- sic collective action problem remains.54 How will it be possible to generate political support for public health interventions when the benefits of such policies are so diffuse and the burdens more salient? In responding to this quandary, public health advocates can learn from past experience. Behavioral health issues raise collective action problems similar to those that public health advocates have overcome in the past when, for example, advocating for childhood vaccina- tions or for sanitation measures that restricted

business autonomy. More recently, the envi- ronmental movement has gradually succeeded in normalizing the practice of recycling, even though the benefits to any particular individual are limited in comparison to the costs.55 Review- ing these past successes may provide promising pathways for further exploration. Emphasize the democratic process.•  The most accurate and effective response to the concern about paternalism and government overreach is that the public health paradigm does not dictate any policy solutions; rather, it presents a new way of analyzing and conceptualizing public health issues. The paradigm directs policymak- ers to think probabilistically and scientifically,56 but it does not dictate that any less attention be paid to the burden that such policies may place on individuals or businesses. Ultimately, restric- tions on individual and business choices — such as a ban on trans-fats — will be adopted only if public health advocates can make a persuasive case to the political leaders (and, ultimately, to the public) that such interventions are needed. This is the primary check on government overreach.57

B. Industry Influence The major public health challenges of our era — obe- sity, tobacco use, and alcohol abuse58 — all have pow- erful industries behind them with a vested interest in making the public less healthy, and all of these indus- tries have powerful lobbying operations in Washing- ton that can put pressure on members of Congress in numerous ways. This is the second principal reason why the public health paradigm is rarely reflected in current policymaking.

The abortive discussion of a potential “soda tax” that occurred during the Affordable Care Act debate provides a pertinent example of the power of indus- try interests to define and constrain the permissible scope of public health measures. Although a tax on sugar-sweetened beverages could both reduce obe- sity rates and raise much-needed revenue,59 the bev- erage industry responded swiftly and aggressively when the House Ways and Means Committee (with some encouragement from the president) raised the issue in the summer of 2009. The American Beverage Association set up a group called Americans Against Food Taxes, which included an array of businesses involved in producing, bottling, transporting, and sell- ing soda (including the major fast food chains such as McDonald’s, Burger King, and Wendy’s).60 The group launched a $10 million advertising campaign against the tax, and it mobilized its member organizations to

public health reform • fall 2011 335

Micah L. Berman

contact members of Congress.61 In addition, “bever- age lobbyists attacked some of the country’s most dis- tinguished nutrition scientists, accusing them of bias and distorting available evidence,” while the industry simultaneously financed questionable research sup- porting its scientific claims.62 In the face of the indus- try’s all-out assault, congressional support for the sugar-sweetened beverage tax “fizzled.”63

That episode demonstrates the lengths to which impacted industries will go to defend their economic interests, and it suggests the power that they can wield in both the political process and in the media. The beverage industry’s response to the proposed soda tax is not exceptional; the tobacco, sugar, and fast food industries as well as others have all followed a similar script.64 Importantly, this shared script includes strate- gic promotion of personal responsibility rhetoric. The more that health problems such as obesity, tobacco use, and alcohol abuse are seen as the result solely of individual choices, the less the public will call for or support industry regulation. Therefore, the industries producing these products have a vested interested in maintaining the individualist/biomedical paradigm as the dominant perspective for considering public health issues.65 In one of the television ads run by Americans Against Food Taxes opposing the soda tax, the narra- tor states: “We all want to improve health care, but taxes never made anyone healthy. Education, exer- cise, and balanced diets do that.”66 This statement is patently untrue — cigarette taxes have been shown to have a significant impact on reducing smoking rates67 — but the ad’s message is a concise summary of the beverage industry’s (and other industries’) approach: seek to put the blame on others, and support other types of government action (e.g., educational efforts) that reinforce the personal responsibility narrative, even though — and perhaps precisely because — that approach will be less effective in improving the pub- lic’s health.

How should those who support a broader public health reform agenda respond to the political and eco- nomic power of those industries? Overcoming indus- try lobbying power at the federal level is, for the imme- diate future, likely impossible. As a practical matter, corporate interests will continue to have a prominent seat at the table whenever laws or regulations that may affect their interests are being debated, and it will be exceedingly difficult to enact policy measures without their assent. This leaves public health advocates with two options: negotiate mutually acceptable agree- ments with the industries, or seek another sphere of influence. With regard to the first option, the history of cooperation with “disease-promoting corpora- tions” is not an encouraging one.68 David Ludwig and

Marion Nestle have detailed how attempts to engage with the food industry in the past have resulted in out- comes “better suited to the interests of the industry than to those of the public.”69 Similarly, the tobacco industry has repeatedly outmaneuvered public health advocates when negotiating the term of federal regu- lation of the industry.70 Industry operatives are, on the whole, more savvy and seasoned political players than public health advocates.

Public health advocates would be better served by focusing — as, for the most part, they have — at the state and local level, where industry influence is gen- erally less pervasive. Unlike the federal government, where industries opposing regulation have well-estab- lished lobbying apparatuses and can make influential campaign contributions, local governments tend to be more responsive to the demands of the local popula- tion. Tobacco control advocates have demonstrated this by enacting smoke-free laws in community after community (including in tobacco-growing states such as North Carolina and Kentucky71), even though a national smoke-free law has remained beyond reach. Although New York City has received substantial press coverage for its trailblazing efforts to prevent chronic disease,72 communities all around the country — urban, suburban, and rural — have adopted policies geared towards preventing or reducing the burden of chronic disease. For example, more than 200 com- munities around the county have adopted “complete streets” policies that require future transportation projects to ensure that walking and biking along road- ways is safe and convenient.73 In addition, local gov- ernments have begun using their zoning and licens- ing powers to impose limits on tobacco retail stores and fast food outlets, similar to restrictions on liquor stores that have been in place for years.74 In these var- ied locales, residents connected to each other by vir- tue of their shared location are acting collectively to protect the health of their communities in ways that no individual would be capable of doing on his or her own. By building upon these successes at the state and local level, public health advocates can gradually develop the leverage to reshape the balance of power in negotiations with industries opposed to public health measures.

III. The Role of Legal Theory and Scholarship Currently, U.S. legal scholarship, legal education, and legal doctrine all largely reflect and reinforce a highly individualistic worldview. Law students are taught to focus on individual rights and individual choices, and law school classes generally ignore or downplay the social, cultural, and environmental constraints

336 journal of law, medicine & ethics

S Y M P O S I U M

on the exercise of those rights or choices.75 Similarly, legal scholarship is dominated by a law and eco- nomics movement that uses individual preferences (assumed to be purely self-generated) as its analytical starting point and “tends to view state action, espe- cially state regulation of the market, as an interference with personal liberties.”76 And as Wendy Parmet has demonstrated, American legal doctrine’s “dominant perspective is markedly individualistic.”77 Since many politicians, policymakers, and public intellectuals are the product of the U.S. legal culture and legal educa- tion, this individualist bias in the law tends to be self- perpetuating.

Moreover, industries that contribute to poor health have a strong interest in promoting and reinforc-

ing an individualistic perspective in the law. These industries commit massive resources toward defend- ing themselves in court and strategically shaping the common law in ways that further their interests. Tobacco companies, for example, have relied heavily on the individualistic legal construct of “assumption of risk” to avoid liability for harms caused by smoking, downplaying their own role in recruiting and addict- ing young smokers (as well as their efforts to promote smoking as a cultural norm).78 As a once-secret memo written by the law firm of Jones Day to its tobacco industry clients stated, “The key defense strategy in smoking and health litigation is (and must be) to try the plaintiff.”79

A smaller but persuasive contingent of legal scholars is, however, seeking to counter these highly individu- alist tendencies in American law and promote a more population-based, “upstream” perspective, particu- larly as applied to issues of public health. Legal schol- arship in this Journal has contributed to the explora- tion of “solutions beyond the individual,”80 as has the groundbreaking work of Wendy Parmet.81 Building on these efforts, legal scholarship can help provide intellectual and legal support for the efforts of public health advocates to promote a shift towards a public health paradigm. These efforts could be enhanced by a more conscious and dedicated effort to define public

health law as its own unique field with its own nor- mative goals. Public health law is often considered to be merely a sub-field of health law, but the two fields employ dramatically different perspectives. Health law, like medical care, is focused on the rules relating to the treatment of already-ill patients, whereas public health law, like the field of public health, focuses on preventing disease and improving health at the popu- lation level.82 Public health law should seek to emerge from health law’s shadow and defend the importance of its own unique perspective and agenda.

A useful analogy may be environmental law, which was unknown as a distinct field until the latter half of the 20th century.83 Before then, environmental law was considered — to the extent it was considered at all

— as a sub-field of administrative law. Defining “envi- ronment law” as a distinct field led naturally to a thor- ough consideration of what the field of environmental law encompassed and what its objectives should be. Just as importantly, defining environmental law as a distinct scholarly pursuit led to a synergistic relation- ship between legal scholarship and advocates of envi- ronmental protection: the enactment of new laws (or even proposals for new laws) provided new opportu- nities for scholarship, and new scholarship helped in turn to promote new, carefully-considered legal inter- ventions. Environmental law scholars — working syn- ergistically with environmental advocates — have had tremendous success in persuading both Congress and the courts to recognize the impact of legal rules on the environment. Public health law scholars — in coop- eration with public health advocates — could similarly promote awareness of the impact of legal structures on the public’s well-being.

Lawrence Gostin, in the second edition of his author- itative treatise, defines the normative aim of public health law as follows: “pursu[ing] the highest possible level of physical and mental health in the population, consistent with the values of social justice.”84 With its focus on the population level tempered by a recogni- tion of competing values, this definition seems to pro- vide a logical and compelling “mission statement” for

What is needed is not simply a messaging plan, but a long-term movement geared towards reorienting the cultural norms relating to public health issues.

In this effort, the legal community, and the legal academy in particular, has a crucial role to play. Clearly defining public health law as a distinct academic

discipline may help prompt more scholarship geared towards addressing the challenges to “public health reform” identified in this article.

public health reform • fall 2011 337

Micah L. Berman

the field of public health law. More clearly defining the field as a distinct academic discipline could in turn set the stage for scholarship that will help develop and advance a public health reform agenda.

Conclusion Changing the way the public conceptualizes preventive health issues will in no way be easy. The notion that personal responsibility is the key to health is deeply engrained in American culture, and well-funded interests have a stake in ensuring that this remains the case. What is needed is not simply a messaging plan, but a long-term movement geared towards reorienting the cultural norms relating to public health issues. In this effort, the legal community, and the legal academy in particular, has a crucial role to play. Clearly defin- ing public health law as a distinct academic discipline may help prompt more scholarship geared towards addressing the challenges to “public health reform” identified in this article.

Acknowledgements The author would like to thank Abigail Adams and Grace Roessler for their research assistance.

References 1. Congressional Budget Office, “CBO’s Analysis of the Major

Health Care Legislation Enacted in March 2010,” available at <http://www.cbo.gov/ftpdocs/121xx/doc12119/03-30-Health- CareLegislation.pdf> (last visited June 6, 2011).

2. Id. 3. Centers for Disease Control and Prevention, “Chronic Diseases,”

available at <http://www.cdc.gov/chronicdisease/resources/ publications/AAG/chronic.htm> (last visited June 6, 2011); D. R. Williams et al., “Beyond the Affordable Care Act: Achieving Real Improvements in Americans’ Health,” Health Affairs 29, no. 8 (2010): 1481-1488: at 1481 (“Although improved access to health care is essential…reducing the risk of getting sick in the first place is even more important to improving the nation’s health.”).

4. L. O. Gostin and M. G. Bloche, “Politics of Public Health: A Response to Gostin,” Perspectives in Biology and Medicine 46, no. 3, Supp. (2003): S160-S175, at S163.

5. J. M. McGinnis et al., “The Case for More Active Policy Atten- tion to Health Promotion,” Health Affairs 21, no. 2 (2002): 78-93, at 78.

6. T. A. Farley, “Reforming Health Care or Reforming Health?” American Journal of Public Health 99, no. 4 (2009): 588-590, at 589.

7. M. L. Berman, “A Public Health Perspective on Health Care Reform,” Health Matrix 21, no. 2 (2011): 352-383.

8. Id. 9. W. E. Parmet, Populations, Public Health, and the Law (Wash-

ington, D.C.: Georgetown University Press, 2010): at 17. 10. See Berman, supra note 7, at 360-361. 11. M. Schneider, Introduction to Public Health, 3rd ed. (Sudbury,

MA: Jones and Bartlett Publishers, 2011): at 6. 12. J. Ashton and H. Seymour, The New Public Health (Milton

Keynes and Philadelphia: Open University Press, 1988): at vii.

13. Id. 14. F. Baum, The New Public Health, 3rd. ed. (Melbourne: Oxford

University Press, 2008): at 14. 15. See Farley, supra note 6, at 589.

16. See Berman, supra note 7, at 356-360. 17. See Ashton and Seymour, supra note 12, at vii. 18. Patient Protection and Affordable Care Act, Pub. L. 111-148,

§ 1001 (2010). 19. See Berman, supra note 7, at 372. 20. See A. H. Mokdad et al., “Actual Causes of Death in the United

States, 2000,” JAMA 291, no. 10 (2004): 1238-1245, at 1238 (finding that “[t]he leading causes of death in 2000 were tobacco (435,000 deaths; 18.1% of total US deaths), poor diet and physical inactivity (400,000 deaths; 16.6%), and alcohol consumption (85,000 deaths; 3.5%)”).

21. J. Hanson and D. Yosifon, “The Situational Character: A Criti- cal Realist Perspective on the Human Animal,” Georgetown Law Journal 93, no. 1 (2004): 1-179, at 177-178.

22. Id., at 6. 23. See Baum, supra note 14, at 473. The impact of such edu-

cational campaigns is “particularly limited in disadvantaged communities.” Id., at 475.

24. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 4004 (2010).

25. Id. § 4206. 26. See Baum, supra note 14, at 472 (spelling modified). 27. See D. G. Yosifon, “Resisting Deep Capture: The Commercial

Speech Doctrine and Junk-Food Advertising to Children,” Loy- ola of Los Angeles Law Review 39, no. 1 (2006): 507-601, at 591.

28. L. O. Gostin, Public Health Law: Power, Duty, Restraint, 2nd ed. (Berkeley and Los Angeles: University of California Press, 2008): at 4.

29. D. Callahan and B. Jennings, “Ethics and Public Health: Forg- ing a Strong Relationship,” American Journal of Public Health 92, no. 2 (2002): 169-176, at 170.

30. See, e.g., C. Tucker, “Behavior the Best Medicine?” Atlanta Journal-Constitution, April 18, 2010, at 22A (summarizing Republican criticisms that the Affordable Care Act would undermine “personal responsibility”).

31. G. Langer, “Poll: Concern, But Little Action on Obesity,” ABC News, May 30, 2004, available at <http://www.abcnews. go.com/sections/us/Living/Obesity_poll_040530.html> (last visited June 6, 2011).

32. K. Sherry, “Uphill Climb for ‘Prevention’; GOP Legislators See No Health Savings in Parks and Similar Projects,” Chicago Tri- bune, August 5, 2009, at C14.

33. Id. 34. Editorial, “So Much for that Ounce of Prevention,” New York

Times, April 25, 2011, at 24. 35. Patient Protection and Affordable Care Act, Pub. L. No. 111-148,

§ 1501 (2010). 36. W. E. Parmet, “The Individual Mandate: Implications for Pub-

lic Health Law,” Journal of Law, Medicine & Ethics 39, no. 3 (2011): 401-413.

37. M. A. Hall, “The Scope and Limits of Public Health Law,” Perspective in Biology and Medicine 46, no. 3, Supp. (2003): S199-209, at S206.

38. See A. Benforado and J. Hanson, “The Great Attributional Divide: How Divergent Views of Human Behavior Are Shap- ing Legal Policy,” Emory Law Journal 57, no. 2 (2008): 311- 408, at 324-325.

39. Id. 40. Id., at 324. 41. M. B. Schwartz and K.D. Brownell, “Actions Necessary to Pre-

vent Childhood Obesity: Creating the Climate for Change,” Journal of Law, Medicine & Ethics 35, no. 1 (2007): 78-89, at 84.

42. K. D. Brownell et al., “Personal Responsibility and Obesity: A Constructive Approach to a Controversial Issue,” Health Affairs 29, no. 3 (2010): 378-386, at 384.

43. Id., at 384-385. 44. Office of the First Lady, “Remarks by the First Lady at a Gro-

cery Manufacturers Association Conference,” March 16, 2010, available at <http://www.whitehouse.gov/the-press-office/

338 journal of law, medicine & ethics

S Y M P O S I U M

remarks-first-lady-a-grocery-manufacturers-association-con- ference> (last visited June 6, 2011).

45. See R. E. Malone, “The Tobacco Industry,” in W. H. Wiist, ed., The Bottom Line or Public Health (Oxford and New York: Oxford University Press, 2010): at 167, 171.

46. L. O. Gostin and K. G. Gostin, “A Broader Liberty: JS Mill, Paternalism, and the Public’s Health,” Public Health 123, no. 3 (2009): 214-221, at 216.

47. See Benning v. Vermont, 641 A.2d 757, 762 (Vt. 1994) (“Although plaintiffs argue that the only person affected by the failure to wear a helmet is the operator of the motorcycle, the impact of that decision would be felt well beyond that individual. Such a decision imposes great costs on the public…. Whether in taxes or insurance rates, our costs are linked to the actions of others and are driven up when others fail to take preventive steps that would minimize health care consumption.”).

48. See Gostin and Gostin, supra note 46. 49. Id. 50. Gostin also notes that “[a]nother defense of paternalism holds

that people face constraints (both internal and external) on the capacity to pursue their own interests.” Id. (spelling modified). This argument concedes that public health regulations are paternalistic, but argues that they can be justified by the cog- nitive constraints and cultural influences that make it difficult for people to make decisions that are in their own best inter- est. Although people do indeed face such cognitive limitations, justifying public health interventions on this basis is a political non-starter. As mentioned in the text, people are deeply com- mitted to the belief that they are fully autonomous, rational agents, however erroneous that belief may be.

51. See id., at 215. 52. World Health Organization, “Obesity and Overweight,” March

2011, available at <http://www.who.int/mediacentre/fact- sheets/fs311/en/index.html> (last visited June 6, 2011) (noting that “[o]nce considered a high-income country problem, over- weight and obesity are now on the rise in low- and middle- income countries, particularly in urban settings”).

53. See Brownell et al., supra note 42, at 379. 54. Those who view public health issues through the individual-

ist/biomedical perspective often fail to recognize that public health issues pose collective action problems because they see individual decision making as the key to health. See, e.g., R. Epstein, “In Defense of the ‘Old’ Public Health: The Legal Framework for the Regulation of Public Health,” Brooklyn Law Review 69, no. 4 (2006): 1421-1470, at 1425-1426. But when the “public health paradigm” is employed, the collective action problems are apparent. For example, “[a]gricultural subsidies have helped bring us high-fructose corn syrup, factory farm- ing, fast food, a two-soda-a-day habit and its accompanying obesity,” but no individual has an incentive to push for reform- ing such incentives. M. Bittman, “Don’t End Agricultural Sub- sidies, Fix Them,” New York Times, March 1, 2011, available at <http://opinionator.blogs.nytimes.com/2011/03/01/dont-end- agricultural-subsidies-fix-them/> (last visited June 6, 2011). To the contrary, the higher cost of unsubsidized products is likely to be much more salient to individuals than the more diffuse public health benefits.

55. See R. Korobkin, “Libertarian Welfarism,” California Law Review 97, no. 6 (2007): 1651-1685, at 1676-1677.

56. See Parmet, supra note 9, at 17. 57. Emphasis on the democratic process should not be miscon-

strued as license to trample on individual rights. The objec- tions to public health policies, however, are often grounded in an overbroad conception of individual rights and business rights that has no basis in law. For example, there simply is no constitutionally protected “right to smoke,” and smoke-free laws do not impinge on the legal rights of either smokers or business owners. See S. K. Graff, Tobacco Control Legal Con- sortium, “There Is No Constitutional Right to Smoke: 2008,” available at <http://publichealthlawcenter.org/sites/default/ files/resources/tclc-syn-constitution-2008_0.pdf> (last visited June 6, 2011).

58. See supra note 20 and accompanying text; see also National Prevention Council, “National Prevention Strategy: America’s Plan for Better Health and Wellness,” available at <http:// www.healthcare.gov/center/councils/nphpphc/strategy/report. pdf> (last visited June 18, 2011) (listing “Tobacco Free Living,” “Preventing Drug Abuse and Excessive Alcohol Use,” “Healthy Eating,” and “Active Living” among the nation’s top preventive health priorities).

59. K. D. Brownell and T. R. Frieden, “Ounces of Prevention – The Public Policy Case for Taxes on Sugared Beverages,” New Eng- land Journal of Medicine 360, no. 18 (2009): 1805-1808.

60. For a list of the group’s members, visit <http://nofoodtaxes. com/about/#coalition> (last visited June 6, 2011).

61. T. Hamburger and K. Geiger, “Soda Tax Fizzles: Targeting Lawmakers and Nutritionists, Beverage Firms Put a Stopper in Campaign,” Los Angeles Times, February 7, 2010, at A1.

62. Id. 63. Id. 64. See generally M. Nestle, Food Politics: How the Food Indus-

try Influences Nutrition and Health, 2nd ed. (Berkeley and Los Angeles: University of California Press, 2007) (discussing efforts by various industries to influence food-related poli- cies); T. O. McGarity and W. E. Wagner, Bending Science: How Special Interests Corrupt Public Health Research (Cambridge: Harvard University Press, 2008) (surveying efforts by tobacco manufacturers, asbestos producers, and others to manipulate or mischaracterize scientific findings in order to avoid regula- tion or liability).

65. This effort to control the terms in which a problem is concep- tualized and discussed has been referred to by David Yosifon and Jon Hanson as “deep capture.” See, e.g., J. Hanson and D. Yosifon, “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture,” University of Pennsylvania Law Review 152, no. 1 (2003): 129-346.

66. Americans Against Food Taxes, “Camping” (Television Com- mercial) (2010), available at <http://www.youtube.com/ watch?v=0zmDwMNaTzA&NR=1> (last visited June 6, 2011).

67. F. J. Chaloupka et al., “Effectiveness of Tax and Price Policies in Tobacco Control,” Tobacco Control 20, no. 3 (2011): 235-238.

68. W. H. Wiist, “Public Health and the Anticorporate Movement: Rationale and Recommendations,” American Journal of Public Health 96, no. 8 (2006): 1370-1375, at 1370.

69. D. S. Ludwig and M. Nestle, “Can the Food Industry Play a Constructive Role in the Obesity Epidemic?” JAMA 300, no. 15 (2008): 1808-1811, at 1809.

70. See, e.g., R. Kluger, Ashes to Ashes: America’s Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris (New York: Alfred A. Knopf, 1997): at 333-334 (discussing how the tobacco industry inserted a preemption provision into the Federal Cigarette Labeling and Advertising Act “that would have an effect not fully grasped by [tobacco control advocates] for the better part of twenty years”). The impact of the 2009 Federal Smoking Prevention and Tobacco Control Act, which was the product of negotiations between tobacco control advocates and Philip Morris, has yet to be seen. Cf. S. A. Glantz et al., “Compromise or Capitulation? US Food and Drug Administration Jurisdiction Over Tobacco Products,” PLoS Medicine 6, no. 7 (2007): e1000118, at 2.

71. See, e.g., North Carolina Gen. Stat. § 130A-491 (2011); Lex- ington Fayette County Food & Bev. Ass’n v. Lexington-Fayette Urban County Gov’t, 131 S.W.3d 745 (Ky. 2004) (upholding Lexington, Kentucky’s smoke-free law).

72. See M. M. Mello, “New York City’s War on Fat,” New England Journal of Medicine 360, no. 19 (2009): 2015-2020.

73. National Complete Streets Coalition, “Complete Streets Pol- icy Analysis 2010: A Story of Growing Strength,” available at <http://www.completestreets.org/webdocs/resources/cs-poli- cyanalysis.pdf> (last visited June 6, 2011).

74. See M. Ashe et al., “Land Use Planning and the Control of Alco- hol, Tobacco, Firearms, and Fast Food Restaurants,” American Journal of Public Health 93, no. 9 (2003): 1404-1408.

public health reform • fall 2011 339

Micah L. Berman

75. See T. Glennon, “Lawyers and Caring: Building an Ethic of Care into Professional Responsibility,” Hastings Law Journal 43, no. 4 (2009): 1175-1186, at 1177 (“[Legal] faculty reinforce the vision of a social world peopled by separate individuals in competition with one another through both the content of their courses and the teaching methodologies they employ. The legal system is presented as an endless series of bipolar disputes, of individual persons or businesses in competition before the courts. Each dispute appears as unconnected to other disputes. The parties are isolated from social or institutional structures. Issues of race, gender and class are often muted. Legal dis- putes that do not appear in judicial opinions simply do not exist.”).

76. See Parmet, supra note 9, at 55. 77. Id., at 54; see also Hanson and Yosifon, supra note 21, at 13-20

(discussing examples of how “dispositionism” is embedded into various doctrinal fields of law).

78. See R. L. Rabin, “Institutional and Historical Perspectives on Tobacco Tort Liability,” in R. L. Rabin and S. D. Sugarman, eds., Smoking Policy: Law, Politics, and Culture (New York: Oxford University Press, 1993): 110-130, at 122-125 (discussing the tobacco companies’ use of the assumption of risk defense

and their attempts to codify a “common-knowledge defense”); Parmet, supra note 9 at 225 (explaining the individualistic assumptions underlying the assumption of risk defense).

79. “Jones/Day Liability Summary” (1986) (Bates No. 681879272), available at <http://tobaccodocuments.org/landman/37575. html#images> (last visited June 6, 2011) (emphasis added).

80. P. K. Newby, “Moving Forward the Discussion on Childhood Obesity,” Journal of Law, Medicine & Ethics 35, no. 1 (2007): 7-9 (introducing symposium articles considering “solutions beyond the individual”).

81. See Parmet, supra note 9. 82. See E. W. Leonard, “State Constitutionalism and the Right to

Health Care,” University of Pennsylvania Journal of Constitu- tional Law 12, no. 5 (2010): 1325-1406, at 1379.

83. R. J. Lazarus et al., “Lloyd K. Garrison Lecture Reunion and Roundtable Transcript,” Pace Environmental Law Review 19, no. 2 (2002): 755-804, at 756 (discussing the conscious deci- sion by legal academics and practitioners to establish environ- mental law as a distinct field in the late 1960s).

84. See Gostin, supra note 28, at 4.

Copyright of Journal of Law, Medicine & Ethics is the property of Wiley-Blackwell and its content may not be

copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written

permission. However, users may print, download, or email articles for individual use.