Право і громадянське суспільство

науковий журнал | електронне видання

RESTRICTIONS ON HUMAN RIGHTS IN THE AREA OF PUBLIC HEALTH LAW: LEGAL ISSUES IN VACCINATION PRACTICES IN UKRAINE AND THE U.S. - Malyshevskyi S.

Здоров’я відіграє фундаментальну роль у житті людини, дозволяючи їй активну участь у різних видах приватної і публічної діяльності, а також підтримує стійкість людських спільнот, з яких складається успішне суспільство. Підтримка громадського здоров’я у сучасному суспільстві вимагає загальних зусиль, де  планування та виконання довірені органам публічної влади у сфері охорони здоров’я. Належне правове регулювання діяльності в галузі охорони громадського здоров’я передбачає ретельне дотримання рівноваги при розподілі відповідних прав та обов’язків, а також справедливе і добросовісне  забезпечення їх реалізації. З цієї причини теорія і практика надає державі достатньо широке коло повноважень для обмеження прав окремих осіб задля забезпечення виживання та добробуту суспільства. Ці «поліцейські повноваження» повинні забезпечити чесний і справедливий розподіл передбачуваних обтяжень і переваг, створюючи рівновагу між відповідними правами та обов’язками всіх зацікавлених сторін.  На жаль, це висока мета, яку не завжди вдається досягнути.

Аналіз, представлений у цій статті, звертає увагу на істотні відмінності та недоліки у правовому регулюванні охорони громадського здоров’я стосовно вакцинації в Україні та у Сполучених Штатах Америки. У цьому дослідженні на прикладі правовідносин щодо вакцинації наочно демонструється юридична колізія між вимогами щодо охорони громадського здоров’я й реалізацією законодавчо закріплених прав людини та її основних свобод. Порівняльний аналіз різних правових систем, яким відома ця проблема, дає змогу визначитиможливі стратегії реформування та напрямки подальших наукових досліджень у сфері охорони громадського здоров’я.

Introduction

Health is fundamentally important not only to an individual, for the enjoyment of and an effective participation in social, political, economic, and other private and public activities, but also to the society as a whole, where its constituent members are able to function and develop in accordance with the established rules and norms. Legal regulation of a value that has an overarching importance both for individuals and for the society requires careful balancing in assigning corresponding rights and duties, as well as their just and fair enforcement. The area of law that regulates health-related aspects of the lives of individuals and of the society simultaneously – public health law - finds it necessary to restrict the rights of the former in order to ensure continuity of the latter. In this respect, public health interventions may occasionally restrict individual rights and freedoms under specified conditions and in accordance with established legislation and practices. 

This paper aims at demonstrating the necessity of legal regulation of the public health mechanisms and the importance of employing the principles of ‘social justice’ in the process of limiting State’s power of coercion. It will be demonstrated, using an example of vaccination and its relationship to the right to education, that while legal collisions exist between public health requirements and human rights and fundamental freedoms, legal systems that permit their judiciary to review legislation benefit from a fair balancing of state powers and individual interests. For this purpose the public health law frameworks of Ukraine and the United States (U.S.) will be compared with respect to the relevant practices of vaccination in order to identify the defining differences. 

1. Public Health

The health of the population (also referred to as the ‘public health’) has “transcendent value” [1, p. 2] due to it being indispensable as a prerequisite of public’s welfare and functioning. The World Health Organization (WHO) [2] defines ‘public health’ as “all organized measures (whether public or private) to prevent disease, promote health, and prolong life among the population as a whole. Its activities aim to provide conditions in which people can be healthy and focus on entire populations, not only individual patients or diseases.” [3]

It is then specified that the main functions of the public health measures are: 

“   - The assessment and monitoring of the health of communities and populations at risk to identify health problems and priorities.

  • The formulation of public policies designed to solve identified local and national health problems and priorities.
  • To assure that all populations have access to appropriate and cost-effective care, including health promotion and disease prevention services.” [3]

The above functions are fulfilled via various public health campaigns and interventions that focus on health-related areas such as, inter alia, motor-vehicle safety, access to safe drinking water, vaccination and control of infectious diseases. [4]

Establishment, promotion and maintenance of the public health measures and interventions is the task of the government; in fact, theory of the ‘social contract’ [5, 6, 7, 8] hold that protection and promotion of public welfare can only come around because of a communal effort. State officials, in turn, have an elected duty to protect their constituents against identifiable and foreseeable hazards, both natural and man-made, [9, pp. 3-63] especially against unreasonable harm and unacceptable risks emanating from other individuals [1, p. 3].

In a society based on the rule of law, public health measures and interventions ought to comply with the principles of ‘social justice’, meaning that in order to effectively improve and maintain the health of an entire society, the public health focus ought to be on those who are most vulnerable and disadvantaged.[10, p. 1054] The term ‘social justice’ has been defined by John Rawls as a set of principles that “provide a way of assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation.” [11, p. 4] According to Rawls, Aristotle’s definition of social justice [12] as “that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution (for in these it is possible for one man to have a share either unequal or equal to that of another)” [12], entails an existence of legitimate expectations for such entitlements. [11, pp. 6, 10] Therefore, both Aristotle and Rawls imply that social justice can be otherwise described as social fairness, [11, p. 10] making it the core value of the public health; “[t]he historic dream of public health… is a dream of social justice.”[13, p. 53] Under this definition, social justice is an effective instrument for the public health interventions, as it “requires that the governments act to limit the extent to which the burden of disease falls unfairly upon the least advantaged and to ensure that the burdens of interventions themselves are distributed equally.” [1, p. 11; 14, pp. 556, 1703; 15, p. 368]

Social justice, therefore, must be both - the principle and the tool - used by the government that aims to deploy a public health intervention without risking undermining social cohesion and avoiding erosion of public trust; fairness and equality would be the principles guiding distributive efforts in the direction of avoiding neglect of the needs of the vulnerable populations. [1, p. 11]

2. Public Health Law

Social justice ensured by the government via the relevant legal provisions “that have significant consequences for the health of determined populations” [4, p. 4], promoted though voluntary measures, and enforced by the coercive power of the State, the so-called ‘police powers’. Government’s involvement is necessitated due to the fact that private actors have both ability and willingness to cause damage to the rest of the society in their pursuit of profit. The eternal existence of individuals willing to participate in, for example, unprotected sex, risking spread of infectious diseases, or businesses that pollute the environment and risk health of their workers by attempting to employ illegal practices aimed at an increase in efficiency and profit, [16, pp. 411-485] necessitates constraints on a “wide range of private activities that pose unacceptable risks” to the health of their community. [1, p. 3]In a society based on the rule of law, such restrictive actions require established legal foundations [1, p. 11] equipped with effective and balanced implementation and enforcement mechanisms.

Various legal sources contain ‘health laws' [17] that collectively form legal foundations of the ‘public health law’. 

“Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g. health care, business, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.” [18, p. 4]

The above definition of the public health law proposed by L.O. Gostin holds that it is the duty of the State to defend the well-being of the community. This fundamental duty States fulfill by exercising their ‘police powers’, which are defined as the “inherent authority… to enact laws and promulgate regulations to protect, preserve, and promote the health, safety, morals, and general welfare of the people.” [4, p. 13] Furthermore, as mentioned above, public health is inherently a communal undertaking that requires the legitimately elected government to assert its delegated ‘police powers’ in order to establish, maintain and protect public health campaigns and interventions. These public health law mechanisms “are many in number, diverse in their mechanisms of operation, and located at many different points on a gradient ranging from a high degree of voluntarism to a high degree of coercion.” [4, p. 14]

3. Voluntarism v. Coercion

Generally, States enjoy a wide scope of action in order to prevent public health threats, insofar as such preventive actions comply with the current domestic and international legislation and, whenever it is possible and/or reasonable, those affected grant consent.[19, p. 193]When the State uses law-based public health interventions, the outcome, and even the process itself, “may be controversial, often in ways that implicate the most fundamental laws of the country, as well as sensitive social and cultural issues.” [4, p. 15] This is the reason why the State should first attempt voluntary measures when public health campaigns and interventions are implemented and enforced. This ‘voluntarism’ approach may include, inter alia, education and dissemination of information about healthy living , proper food preparation, improving access to fresh drinking water, effective waste disposal, etc. [4, p. 14] However, while this approach is necessary for the maintenance of an intervention and as an instrument for increasing awareness, it is an unfortunate historic and practical truth that “the effectiveness of law as a public health instrument was powerfully mediated by factors of enforcement and compliance.” [4, p. 15] In other words, it is highly unlikely for the voluntary measures to succeed as the only deployed mechanism of implementation and enforcement. For this reason, governments ought to exercise their exclusive power of coercion in order to ensure conformance with established norms and standards. Methods of coercion, while not as numerous as that of ‘voluntarism’, include, inter alia, financial penalties, quarantine measures, arrest and detention. It is important, however, that voluntary measures, such as education, ought to be implemented alongside, as “the use of coercion must be part of an informed understanding of public health law, and… state power also must be subjected to limits.” [1, p. 3]

The U.S. judicial practice is rather instructive on the issue of police powers. The U.S. Supreme Court in the Gibbons v. Ogden[20]decision recognized that public health law requires the government’s ability to exercise police powers and in Jacobson v. Massachusetts the legitimate extent of the police powers, exercised for public health purposes, was set to fulfill the requirements of necessity [21, p. 28; 22, p. 854], proportionality [21, pp. 38, 39], reasonable means [21, p. 31] and harm avoidance [21, p. 39; 23, p. 22; 24, p. 391].

4. Human Rights, Fundamental Freedoms and Civil Liberties: Sources, Extent and Limits

The exclusive ‘right’ to place and enforce constraints on individuals, for public health purpose, entails a corresponding obligation to balance the necessity and urgency of restrictive measures with human rights and fundamental freedoms, ensured and granted to individuals by law. While different public health interventions restrict, or otherwise negatively affect, individuals’ rights and freedoms, the right to privacy [25, 26, 27, 28, 29], autonomy [27], liberty [25, 26, 27, 28, 31], and even the right to own property[25, 32, 28, 33], require careful consideration in order to lessen the risk of undermining effectiveness of an intervention. Individuals’ desire to protect those valued safeguards against the power of the State may sometimes fail to correspond with the best interests of their community or even of the entire society. 

A growing number of authors claim that no real conflict exists between the protection of individual’s rights and freedoms and the protection of the population’s health. This claim rests on the assertion that “individual rights and public health are synergistic – the defense of one enhances the value of the other, and vice versa.” [1, p. 4 (emphasis added)] The opposing camp of scholars [1, p. 4] notes on the power of State coercion to isolate or quarantine an individual, as well as entire groups. It is clear that such public health interventions help save human lives and prevent future reoccurrence of infection but it also can alienate people from the public authorities and the government’s enforcement mechanisms, potentially resulting in an ineffective functioning of the system of public health at the time of crisis. “By provoking distrust in, or alienation toward, medical and public health authorities, coercion may shift balance to avoidance of testing, counseling, or treatment.” [1, p. 4]

Fundamentally, the State has, on the one hand, the duty to protect its population against foreseeable threats to health and, on the other hand, the duty to protect human rights and fundamental freedoms of individuals within it. Therefore, the extent to which State officials are prepared to seek compromise for the achievement of a fair balance between these equally important duties, rests on two broad factors: (1) the severity of the threat, urgency of the required response, and the necessity of the coercive methods; and (2) provisions found in various domestic legal frameworks regulating implementation and enforcement of the public health response.   

Internationally, numerous hard- and soft-law instruments, such as, inter alia, various multinational treaties, agreements and declarations, [34]ensure the minimum level of protection individuals ought to expect from their State. In the wake of the Second World War, the international community outlined such ‘minimum standards’ in the 1948 United Nations (UN) Declaration of Human Rights, thus fleshing-out the legally-binding obligation found in Articles 55(c) and 56 of the UN Charter [35] via a soft-law instrument. The wording of Article 56 of the UN Charter, by using “pledge” instead of, e.g., “are bound” and by failing to specify concrete requirements and duties of States [36], however, may be interpreted by some as placing no binding obligations on Member States of the UN. [37, p. 646] The lack of a truly legally-binding requirement was decisively rectified in 1966 by the adoption of the International Covenant on Civil and Political Rights [30] (incl. Optional Protocol)and the International Covenant on Economic, Social and Cultural Rights[38] (incl. Optional Protocol, aiming at the abolition of the death penalty). Together with the 1948 UN Declaration of Human Rights, they create a synergistic legal instrument of the international law, referred to as the International Bill of Human Rights, which seamlessly fuses the soft-law approach of customary law with the hard-law requirements of the treaty law.

Currently, there are 7 additional ‘core’ international human rights treaties, with their optional protocols, and 10 supporting ‘treaty bodies’, established to monitor and coordinate implementation of provisions found in the above instruments of international law. [39]Furthermore, a number of regional human rights conventions were concluded in the Americas [40], Africa [41] and Europe [27], providing legally binding human rights standards with local, cultural and other differences considered. Most importantly, the practice of the European Court of Human Rights (ECtHR) sets an impressive example of an effective conflict-resolution mechanism between the State and its citizens. There were a number of cases concerning health law in general reviewed by the Court [42; 43], as well as those concerning public health specifically [44; 45; 46; 47; 48; 49]. International law and its judicial practice are important in reviewing domestic legislation; this is true both for the monist (e.g., Ukraine, as established by Article 9 of the Constitution of Ukraine), mixed (e.g., U.S.A., as established by Article 1, Section 7(2) of the U.S. Constitution) [50, p. 314; 51], and the dualist (e.g., UK) systems. This paper aims to provide a brief overview of the public health law provision and practice in Ukraine and the U.S. in order to identify substantial differences (beyond the monism/dualism) and improvement strategies. 

Sources of public health law in Ukraine 

In Ukraine, health and medical law can be found in over 170 laws, 2,931 orders of the Cabinet of Ministers of Ukraine and many other normative provisions [52, p. 12], constituting, in this respect, a legal system with ample provisions for the protection of well-being of the individual and the community. Ukraine is the Member State of the UN and the State party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms and to most of the main human rights agreements in force in Europe [53]. However, failure to ratify such fundamental international human rights instruments as the International Convention on the Protection of the Rights of All Migrant Workers and Their Families [54], International Convention for the Protection of All Persons from Enforced Disappearance [55], as well as the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights [56] and the Optional Protocol to the Convention on the Rights of the Child on communications procedure [57], which were signed but not ratified by Ukraine, weakens protection of individual rights and freedoms in the exercise of public health law in Ukraine. 

Human rights and equality provisions and guarantees of their protection are placed at the very beginning of the Constitution of Ukraine (e.g. Articles 3, 21, 24, 27, 34, 45, 49, 55, 57, etc.) and continue throughout specialized legislative norms and regulations. While public health law finds its introduction in the Constitution of Ukraine, it is the Law of Ukraine “The Fundamentals of the Legislation on Health Care in Ukraine” (a health law ‘Constitution’ of Ukraine) [58] that gives it content. Public health law provisions can also be found in almost every legal Code of Ukraine [59, 60, 61, 62, 63, 64] and additionally form the theme of some stand-alone laws [65; 66; 67]. Provisions concerning implementation and enforcement of public health law, unless explicitly stated in the Constitution of Ukraine, provided by relevant laws and regulations.

Sources of Public Health Law in the U.S.

United States has a considerably weaker protection of human rights through international instruments than Ukraine; U.S. is only State Party to the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. U.S. ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment does not appear to have a significant effect due to the county’s failure to follow its provisions, evident by the well-known cases of Guantanamo Bay and alike. 

Nevertheless, the U.S. Constitution provides numerous human rights protections. The Preamble recognizes guarantees of “Justice” and “general Welfare” and Amendments 1, 4 – 8, 13 – 15, 19 secure various rights and freedoms. With 50 different state Constitutions, governments and public health regulators, each establishing similar, albeit different, public health rules and regulations, sources of public health law in the U.S. are vast in number and scope. The U.S. state law, however, may not contradict the federal law in force, according to Article 6(2) of the U.S. Constitution, as well as those international treaties considered as “self-executing” [51]. As an example, the 2010 Patient Protection and Affordable Care Act [68] established rules for nutrition labelling for certain restaurants and vending machines that cannot be contradicted by state legislation. Importantly, however, in the majority of important cases, government enforcement and its limitations are usually interpreted and clarified by the relevant case law.

5. In-focus: Vaccination

One of the frictions between the public health law and the human rights law is the issue of vaccination. In Ukraine the status of vaccination is uncertain as there are fundamental contradictions under the Law of Ukraine “Fundamentals of the Legislation on Health Care in Ukraine”, where, on the one hand, Article 10 specifies vaccination as a duty of citizens and provisions of Article 43, on the other hand, set out preventive vaccination as a right of an individual. 

This legal uncertainty creates certain collisions when rights are restricted in the name of the public health necessity. One of such rights is the right to education that is recognized as one of fundamental human rights both internationally (e.g. in Article 26 of the Universal Declaration of Human Rights, Article 13 of the International Covenant on Economic, Social and Cultural Rights, and in Article 2 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms [69]) and by the Constitution of Ukraine (Article 53). 

At first, Ukrainian legislators attempted to use coercive measures to ensure compliance with vaccination requirements by prohibiting access to primary education to children lacking certain vaccinations [66]. While some parents faced criminal charges for refusing to permit preventive vaccination of their children [70], some institutions were also taken to court for refusing admission of children lacking specified vaccinations [71].

This legal collision still causes uncertainty even though the Ministries of Education and Health collaboratively attempted to lift practical restrictions by issuing a joint regulation [72] permitting admission of non-vaccinated children to primary education provided parents obtain an official letter from their doctor stating that the child is healthy and fit to attend an educational institution; any refusal on the grounds of the lack of certain vaccinations, in this case, considered illegal. 

From the public health point of view, this ‘solution’ to the legal problem sidesteps established legislation and undermines vaccination campaigns in the country where only around 70-75% of the population are duly vaccinated [73]. 

In the United States a legal collision between the right to education and vaccination requirements also exists. With 50 different state statutes regulating this relationship and the federal government’s lack of police power [74], it is down to each state whether to permit access to education to non-vaccinated children. Most U.S. states choose to allow ‘liberty interests’ on bodily integrity of an individual even though this ‘right’ is not stipulated by the U.S. Constitution and the Supreme Court only applied it to cases of abortion [75], birth control [76], donation of body parts [77] and in cases concerning terminal illness [78] and mental disability [79]. As a result, only two U.S. states – Mississippi and West Virginia – require certain vaccinations as a pre-requisite for admission to educational institutions and only permit difficult-to-obtain medical exemptions [80]. 

Nevertheless, vaccination has been a ‘hot’ topic for debate in the United States since the 1901-1903 smallpox outbreak in Boston [81, pp. 375-379] that resulted in numerous Supreme Court decisions interpreting state statutes and guiding their enforcement. Most importantly for the current discussion are the Court decisions to find school vaccination requirements constitutional [82; 83] and that individual states can regulate individuals and businesses for the protection of public health and safety [84]. Furthermore, U.S. Supreme Court also recognised that individual “liberty interests” are safeguarded by the U.S. Constitution [85] but are not absolute and can be limited by the state [86]. Therefore, the Court continuously pointed out that the exercise of police powers by states must be balanced with individual rights and interests [87; 88]. Importantly, this balancing exercise and further enforcement must include the following considerations: 1) police power regulation must have a compelling and substantive relationship to state interest [89] that, in turn, must be demonstrated [90]; 2) police power must not be exercised in an unreasonable or arbitrary manner [91]; 3) ‘standard of fairness’ must be applied at all times [23]; and 4) police power must be used exclusively to prevent harm to the population from those with serious diseases [92; 93].

Importantly, any application of police powers in the area of public health in the United States must follow the “settled” criteria set out in Jacobson and mentioned previously [94]. In its practice, the U.S. Supreme Court defends the exercise of police power by states [20; 95], with some decisions reaching as far as to suggest that public health regulation has immunity from the constitutional review [96]. When the Court rarely does allow exemptions from vaccination requirements it concerns recognised religious convictions [97], terminal illnesses [78], mental disability [79], and reproductive freedoms [75; 76; 98], or when vaccination can threaten health and life of the person [99].

Conclusion

It is clear from the above discussion that States enjoy broad police powers in the area of public health. Such powers can be coercive or based on voluntary measures, although the exercise of both simultaneously ensures results that adequately take into account human rights and fundamental freedoms of the population. Such rights and freedoms are concretely established both in the international law and in the domestic laws of Ukraine and the United States. Therefore, States ought to balance their police powers with legitimate interests of the population – an aim often difficult to achieve.

It has been demonstrated that both Ukrainian and the U.S. law suffers from the legal collision between vaccination requirements and the right to education. It is clear that United States benefit from the judicial precedence that ensures “social justice”, while Ukrainian courts lack such power to interpret the law and guide its enforcement. Therefore, the Ukrainian legislator must take note of the ECtHR’s view that vaccination is the right of the individual, whose freedom to choose whether to submit to a medical intervention is a fundamental right [100] and consider various suggestions for the relevant reforms prepared by the local experts and activists. It may not be possible to completely resolve this legal collision but a fair balance between the public and individual interests can be achieved if the relevant reforms take account of the views of every stakeholder. 

References

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