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Beyond Lifestyle

Governing the Social Determinants of Health

Published online by Cambridge University Press:  06 January 2021

Wendy K. Mariner
Wendy K. Mariner*
Affiliation:
Boston University (BU) School of Public Health, BU School of Law, BU School of Medicine
*
Email: [email protected]
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Abstract

Non-communicable and chronic diseases have overtaken infectious diseases as the major causes of death and disability around the world. Despite recognition that reduction in the chronic disease burden will require governance systems to address the social determinants of health, most public health recommendations emphasize individual behavior as the primary cause of illness and the target of intervention. This Article argues that focusing on lifestyle can backfire, by increasing health inequities and inviting human rights violations. If States fail to take meaningful steps to alter the social and economic structures that create health risks and encourage unhealthy behavior, health at the population level is unlikely to improve significantly. Viewing the global health challenge from the perspective of human rights, however, reveals opportunities for positive change in all sectors of governance. Explicit recognition of human rights can help refocus attention on the fundamental causes of health and protect individuals from unnecessary harm.

Type
Articles
Information
American Journal of Law & Medicine , Volume 42 , Issue 2-3: Global Infectious Diseases: New Challenges and Solutions , May 2016 , pp. 284 - 309
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2016

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References

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76 WHO Global Status Report, supra note 9, at ix (listing, among the nine goals, reducing harmful use of alcohol, insufficient physical activity, salt intake, and tobacco use as well as increasing drug therapy and counselling to prevent heart attacks and stroke).

77 See, e.g., World Bank, Promoting Healthy Living in Latin America AND the Caribbean: Governance of Multisectoral Activities to Prevent Risk Factors for Noncommunicable Diseases (María Eugenia Bonilla-Chacín ed., 2014) (recommending improved diets, increased physical activity, and less use of tobacco and alcohol for improving the health of individuals in Latin America and the Caribbean), http://openknowledge.worldbank.org/bitstream/handle/10986/16376/9781464800160.pdf?sequence=1&isAllowed=y; Al-Maskari, supra note 73; Researching Health Promotion, supra note 70.

78 See, e.g., Bauer et al., supra note 30 at 46 (“The chronic disease burden in the USA largely results from a short list of prevalent factors—including tobacco use, poor diet and physical inactivity …, alcohol consumption, uncontrolled high blood pressure, and hyperlipidaemia ….”.); Jaffe, Harold W. & Frieden, Thomas R., Comment: Improving Health in the USA: Progress and Challenges, 384 Lancet 3, 4 (2014)Google Scholar (“Health in the USA can be improved by policies that protect health in the broadest segments of the population; by better access to, and improved quality of, health care; by increasing the delivery of preventive services within health-care settings; and by individual behavioural change.”); Inst. of Med., Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation (2012), http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/2012/APOP/APOP_rb.pdf [http://perma.cc/M6U4-V8PH] (emphasizing how changes to diet and exercise habits can help solve and prevent obesity).

79 See Heiman, Harry J. & Artiga, Samantha, Beyond Health Care: The Role of Social Determinants in Promoting Health and Health Equity, Henry J. Kaiser Family Found. Issue Brief 1 (Nov. 2015)Google Scholar (“Health behavior, such as smoking and diet and exercise, are the most important determinants of premature death).

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82 See Backett, Kathryn C. & Davison, Charlie, Lifecourse and Lifestyle: The Social and Cultural Location of Health Behaviours, 40 Soc. Sci. & Med. 629, 631 (1995)Google Scholar (“[I]t has proved easier within existing research traditions to address relationships between social structural variables, such as socioeconomic status, and the personal behavioural components of lifestyles than it has to understand the culturally based meanings underpinning such relationships.”).

83 See, e.g., Gregg Bloche, M., Obesity and the Struggle Within Ourselves, 93 Geo. L.J. 1335, 1354 (2005)Google Scholar (arguing for shaming obese people as “a burden to others (medically and financially) and a sign of self-indulgence”); Callahan, Daniel, Obesity: Chasing an Elusive Epidemic, 43 Hastings Ctr. Rep. 34, 37 (2014)Google Scholar (advocating “strong social pressure” to convince the public that “excessive weight and outright obesity are not socially acceptable any longer”). For works suggesting that weight is a moral issue, see Against Health: How Health Became the New Morality 1-2 (Jonathan M. Metzl & Anna Kirkland eds., 2010) (arguing that “‘health’ is a term replete with value judgments,” including the notion that “when we encounter someone whose body size we deem excessive and reflexively say, ‘obesity is bad for your health,’ … what we mean is not that this person might have some medical problem, but that they are lazy or weak of will”); Lynne Gerber, Seeking the Straight and Narrow: Weight Loss and Sexual Reorientation in Evangelical America 19-51 (2011) (comparing Christian perceptions of homosexuality and obesity, viewed as a manifestation of gluttony); and Deborah Lupton, The Imperative of Health: Public Health and the Regulated Body 57 (1995) (describing the “deficit” model of human behavior, which assumes that “lifestyle habits are amenable to change, and … that most people, if rationally told the ‘risks’, will make effort to do so”).

84 See Brownell, Kelly D. et al., Personal Responsibility and Obesity: A Constructive Approach to a Controversial Issue, 29 Health Aff. 379, 379 (2010)Google Scholar (“The notion that obesity is caused by the irresponsibility of individuals, and hence not corporate behavior or weak or counterproductive government policies, is the centerpiece of food industry arguments against government action …. [They] cast problems like obesity, smoking, heavy drinking, and poverty as personal failures.”).

85 See generally Norman Daniels et al., Is Inequality Bad for Our Health? 3 (2000) (noting that “the more affluent and better-educated members of a society tend to live longer and healthier lives,” and that “countries with a greater degree of socioeconomic inequality show greater inequality in health status”); Kevin Lang, Poverty and Discrimination 348 (2007) (observing that the differences in medical treatment that “blacks and whites receive … in treatment for similar conditions are sufficiently large to contribute to higher death rates among blacks.”); Marmot, The Health Gap, supra note 60.

86 See, e.g., Adler, Nancy E., Disadvantage, Self-Control, and Health, 112 Proc. Nat’l Acad. Sci. U.S. 10078, 10079 (2015)Google Scholar (“Members of disadvantaged groups have, on average, earlier age of onset of diseases of aging such as cardiovascular disease arthritis, diabetes, and some forms of cancer. Life expectancy at age 25 is shorter for those with less income and less education, as is true for African-Americans compared with European-Americans.”); Du, Juan & Leigh, Paul, Effects of Wages on Smoking Decisions of Current and Past Smokers, 25 Annals Epidemiology 575, 580 (2015)Google Scholar (study finding that rising wages were associated with lower smoking prevalence, with reductions of 5.5 to 6.6 percentage points in men for a 10% increase in wages); Kivimäki, Mika & Kawachi, Ichiro, Work Stress as a Risk Factor for Cardiovascular Disease, 17 Current Cardiology Rep. 1, 6 (2015)Google Scholar (“[E]vidence … suggests that work stressors, such as job strain and long working hours, are associated with a moderately elevated risk of incident coronary heart disease and stroke.”); Pabayo, Roman, Kawachi, Ichiro & Gilman, Stephen E., Income Inequality Among American States and the Incidence of Major Depression, 68 J. Epidemiology Community Health 110, 114 (2014)Google Scholar (finding that women living in “US states with high income inequality” are “more likely to experience a major depressive episode” than “those living in more equal states.”); Steptoe, Andrew & Kivimäki, Mika, Stress and Cardiovascular Disease: An Update on Current Knowledge, 34 Ann. Rev. Pub. Health 337, 337 (2013)Google Scholar (finding that “early-life stressors, such as childhood abuse and early socioeconomic adversity, are linked to increased cardiovascular morbidity in adulthood”); Walque, Damien de, Does Education Affect Smoking Behaviors? Evidence Using the Vietnam Draft as an Instrument for College Education, 26 J. Health Econ. 877, 877 (2007)Google Scholar (finding that “education does affect smoking decisions: educated individuals are less likely to smoke, and among those who initiated smoking, they are more likely to have stopped.”).

87 See Michael Siegel & Lynne Doner Lotenberg, Marketing Public Health: Strategies to Promote Social Change ix (2d ed. 2007) (noting instances “where people tend to know what they should be doing to improve their health and are motivated to do so but aren’t following through,” including the fact that “while 58% [of adults] want to lose weight, only 27% are seriously trying to do so”).

88 See Mariner, Wendy K., The Affordable Care Act and Health Promotion: The Role of Insurance in Defining Responsibility for Health Risks and Costs, 50 Duq. L. Rev. 271, 299–300 (2012)Google Scholar (describing research finding that few preventive measures save money in the long run).

89 See Pepe, Margaret Sullivan et al., Limitations of the Odds Ratio in Gauging the Performance of a Diagnostic, Prognostic, or Screening Marker, 159 Am. J. Epidemiology 882, 889 (2004)Google Scholar (recognizing that predictive and diagnostic markers that are valuable for characterizing population variations in risk are a “very inaccurate tool for classifying or predicting risk for individual subjects”).

90 See H. Gilbert Welch, Lisa M. Schwartz & Steven Woloshin, Over-Diagnosed: Making People Sick in Pursuit of Health 170 (2011) (discussing how, “ironically, the drive toward more and earlier diagnosis can conflict with the goal of a healthier society”).

91 See, e.g., Keyes, Katherine M. et al., The Mathematical Limits of Genetic Prediction for Complex Chronic Disease, 69 J. Epidemiology Community Health 574 (2015)Google Scholar, http://jech.bmj.com/content/69/6/574.full.pdf+html.

92 The relationship between weight and mortality remains somewhat unclear, at least for those with a BMI between 18.5 and 35. See Flegal, Katherine M. et al., Association of All-Cause Mortality with Overweight and Obesity Using Standard Body Mass Index Categories: A Systematic Review and Meta-analysis, 309 JAMA 71, 79 (2013)Google Scholar (finding that Grade 1 obesity (BMI of 30 to less than 35) is “not associated with higher mortality”); see generally Abigail C. Saguy, What’s Wrong with Fat? 10 (2013) (“[S]everal expert committees have noted that the implications of a child’s BMI for his or her future health remain unclear.”); Rokholm, B., Baker, J.L. & Sorensen, T.I.A., The Levelling Off of the Obesity Epidemic Since the Year 1999—A Review of Evidence and Perspectives, 11 Obesity Revs. 835, 841 (2010)Google Scholar (noting that “BMI does not capture all the variation in health outcomes related to excess adipose tissue,” because “body composition and distribution of fat can be highly variable, even between individuals with the same BMI”).

93 See generally Deborah Stone, Policy Paradox: The Art of Political Decision-Making 259 (Rev. ed., 1997) (“Policy is more like an endless game of Monopoly than a bike repair. Hence the common complaint that policies never seem to solve anything.”).

94 See, e.g., WHO, Declaration of Alma-Ata, supra note 34 (“[E]xpressing the need for urgent action by all governments, all health and development workers, and the world community to protect and promote the health of all the people of the world ….”); World Health Organization, Ottawa Charter for Health Promotion 1, 1 (1986), http://www.who.int/healthpromotion/conferences/previous/ottawa/en/ [http://perma.cc/T7C6-GL7Z] (“[H]ealth promotion is not just the responsibility of the health sector, but goes beyond healthy life-styles to well-being.”); Rio Political Declaration, supra note 32.

95 See Rep. from the International Meeting on Health in All Policies, Adelaide Statement on Health in All Policies: Moving Towards a Shared Governance for Health and Well-Being 1, 1 (2010), http://www.who.int/social_determinants/hiap_statement_who_sa_final.pdf [http://perma.cc/V496-4PV5] (emphasizing that “government objectives are best achieved when all sectors include health and well-being as a key component of policy development.”); World Health Organization, Health in All Policies Training Manual (2015), http://apps.who.int/iris/bitstream/10665/151788/1/9789241507981_eng.pdf [http://perma.cc/LGN2-WML9] (providing the materials necessary to train health and other professionals on Health in All Policies in two- or three-day workshops); Fran Baum et al., History of HiAP, in Health in All Policies: Seizing Opportunities, Implementing Policies 25-42 (Kimmo Leppo et al. eds., 2013), http://www.euro.who.int/__data/assets/pdf_file/0007/188809/Health-in-All-Policies-final.pdf?ua=1 [http://perma.cc/5ZHE-H489] (providing a “brief history of societal recognition of the importance of these determinants and the related policy responses”).

96 See Eeva Ollila et al., Introduction to Health in All Policies and the Analytical Framework of the Book, in HEALTH IN ALL POLICIES: SEIZING OPPORTUNITIES, IMPLEMENTING POLICIES 3 (Kimmo Leppo et al. eds., 2013), http://www.euro.who.int/__data/assets/pdf_file/0007/188809/Health-in-All-Policies-final.pdf?ua=1 [http://perma.cc/5ZHE-H489].

97 See Baum, Fran et al., Evaluation of Health in All Policies: Concept, Theory and Application, 29 Health Promotion Int’l i130, i130 (2014)Google Scholar (“[C]rucial theoretical, methodological and practical issues that need to be considered when evaluating Health in All Policies (HiAP) initiatives.”); Osypuk, Theresa L. et al., Do Social and Economic Policies Influence Health? A Review, 1 Current Epidemiology Reps. 149, 149 (2014)Google Scholar (“[P]olicy makers should design future social policies to evaluate health outcomes using validated health measures; to target women more broadly across the socioeconomic spectrum; and to consider family caregiving responsibilities, as ignoring them can have unintended health effects.”).

98 Keyes, supra note 40; Ruger, supra note 7, at 341.

99 See Ilona Kickbusch & David Gleicher, WHO Regional Office for Europe, Governance for Health in the 21st Century 37 (2012) (“After two decades of focusing on individual behavioral change, health promotion showed (as did other areas of policy, such as the environment) that the problems have to be addressed at the causal level and that joined-up policy approaches are necessary.”).

100 See Kickbusch, Ilona & Szabo, Martina Marianna Cassar, A New Governance Space for Health, 7 Global Health Action 23507, 23512-13 (2014)Google Scholar, http://www.globalhealthaction.net/index.php/gha/article/view/23507/pdf_1 (“Health Ministers must now be concerned with priorities and activities of the security, trade, finance, agriculture, development, and employment industries if they are to effectively address health issues domestically and in global negotiations.”).

101 See Constance A. Nathanson, Disease Prevention as Social Change: The State, Society and Public Health in the United States, France, Great Britain, and Canada 8 (2007) (“[O]rganized human agency as represented by the public health movement has been instrumental in the decline of mortality.”); Brown, Theodore M. & Fee, Elizabeth, Social Movements in Health, 35 Ann. Rev. Pub. Health 385, 395 (2014)Google Scholar (concluding that “social movements and political mobilization have regularly advanced population health in the past and today remain significant sources of energy and motivation to meet ongoing challenges”). In the United States, many of the major public health advances came through federal, state and local legislation. See, e.g., Ctrs. for Disease Control & Prevention, Ten Great Public Health Achievements -- United States, 1900-1999, 48 Morbidity & Mortality Wkly. Rep. 241, 244 (1999) (noting the collaboration between federal, state, and local governments to develop and maintain the U.S. vaccine-delivery system).

102 Brown, Lawrence D., The Political Face of Public Health, 32 Pub. Health Revs. 155, 156 (2010)Google Scholar.

103 John W. Kingdon, Agendas, Alternatives, and Public Policies 87 (2d ed. 1995).

104 Id. at 114 (“[P]roblem recognition is not sufficient by itself to place an item on the agenda. Problems abound … in the government’s environment, and officials pay serious attention to only a fraction of them.”)

105 Id. at 115 (“It does seem true … that linking a proposal to a problem that is perceived as real and important does enhance that proposal’s prospects for moving up on the agenda.”).

106 See id. at 145.

107 The Health in All Policies movement is beginning to identify problems and develop solutions, but most are small in scope and not widely publicized. See supra notes 95-96 and accompanying text.

108 See Mariner, Wendy K., Annas, George J. & Parmet, Wendy E., Pandemic Preparedness: A Return to the Rule of Law, 1 Drexel L. Rev. 341, 363-64 (2009)Google Scholar.

109 G.A. Res. 217A (III), Universal Declaration of Human Rights, U.N. GAOR, 3d Sess., 1st Plen. Mtg., U.N. Doc. A/810 (Dec. 12, 1948), http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf [http://perma.cc/8H4M-CJ9T] [hereinafter UDHR].

110 G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, at 52, U.N. GAOR, 21st Sess., Supp. No. 16 (1966), http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf [http://perma.cc/UQ8N-ENKC] [hereinafter ICCPR].

111 G.A. Res. 2200 (XXI), International Covenant on Economic, Social and Cultural Rights, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966), http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf [http://perma.cc/TKN3-NTQ8] [hereinafter ICESCR]. The United States has not ratified the ICESCR. United Nations Treaty Collection, United Nations (Apr. 18, 2016, 7:59 PM), http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en [http://perma.cc/M3H9-HA44].

112 Office of the U.N. High Comm’r for Human Rights, The Right to Health, Fact Sheet No. 31 (June 2008) [hereinafter Right to Health, Fact Sheet No. 31].

113 Office of the U.N. High Comm’r for Human Rights, Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna (June 25, 1993), http://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf [http://perma.cc/7249-863C].

114 See generally Health and Human Rights in a Changing World (Michael A. Grodin et al. eds., 2013) (providing a comprehensive analysis of “health” and “human rights” as intricately related disciplines).

115 UDHR, supra note 109. The UDHR also specifies the following rights relevant to population health and well-being: “All human beings are born free and equal in dignity and rights.” (Art. 1); “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Art. 2); “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (Art. 5); “No one shall be subjected to arbitrary arrest, detention or exile.” (Art. 9); “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.” (Art. 12). Id.

116 ICESCR, supra note 111, at Art. 12 (“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of health.”); see id., at Annex IV, ¶ 33 (concerning the duties as applied to the right to health).

117 U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm. on Econ., Soc., and Cultural Rights, Report on the Twenty-Second, Twenty-Third and Twenty-Fourth Sessions, Annex IV, ¶ 8, U.N. Doc. E/2001/22-E/C.12/2000/21 (Aug. 11, 2001), http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f2000%2f4&Lang=en [http://perma.cc/9RNR-7GN9] [hereinafter ECOSOC].

118 Id.

119 Id; see Sofia Gruskin et al., Introduction: Approaches, Methods and Strategies in Health and Human Rights, in Perspectives on Health and Human Rights xii–xix (S. Gruskin et al. eds., 2005). The ICESCR permits progressive realization of certain rights, in accordance with a country’s resources. Key Concepts on ESCRs - What Are the Obligations of States on Economic, Social and Cultural Rights?, U.N. Office of the High Comm’r for Human Rights, http://www.ohchr.org/EN/Issues/ESCR/Pages/WhataretheobligationsofStatesonESCR.aspx [http://perma.cc/S84G-XGEF]. Progressive realization can create controversy in cases in which basic needs are not met. See Mazibuko & Others v. City of Johannesburg 2009 (4) SA 1 (CC) at 39 (S. Afr.); Keener, Steven R. & Vasquez, Javier, A Life Worth Living: Enforcement of the Right to Health Through the Right to Life in the Inter-American Court of Human Rights, 40 Colum. Hum. Rts. L. Rev. 595, 599 (2009)Google Scholar.

120 Right to Health, Fact Sheet No. 31, supra note 112 at 3.

121 Id.

122 Other treaties and conventions address the health of women, children, people with disabilities, migrant workers, prohibitions against torture, and other specific topics. See Core International Human Rights Instruments and Their Monitoring Bodies, U.N. Office of the High Comm’r for Human Rights, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx [http://perma.cc/TF7S-UM59].

123 Dennis, Michael J. & Stewart, David P., Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 Am. J. Int’l L. 462, 495 (2004)Google Scholar (noting that some countries do not necessarily accord authoritative weight to the General Comments interpreting provisions of the Covenants); see Salcito, Kendyl et al., Experience and Lessons from Health Impact Assessment for Human Rights Impact, 15 BMC Int’l Health & Hum. Rts. 24 (2015)Google Scholar.

124 Health and Social Justice: Politics, Ideology, and Inequity in the Distribution of Disease (Richard Hofrichter ed., 2003); Marmot, Michael et al., Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health, 372 Lancet 1661, 1661 (2008)Google Scholar.

125 Marmot, the Health Gap, Supra note 60.

126 See Michael Marmot, Status Syndrome: How Social Standing Directly Affects Your Health and Life Expectancy 63, 63-82 (2004); Adler, Nancy E. et al., Socioeconomic Status and Health: The Challenge of the Gradient, 49 Am. Psychol. 15 (1994)Google Scholar; Bezo, Brent et al., The Rights and Freedoms Gradient of Health: Evidence from a Cross-National Study, 3 Frontiers in Psychol. 1 (2012)Google Scholar; Deaton, Angus, Policy Implications of the Gradient of Health and Wealth, 21 Health Aff. 13 (2002)Google Scholar, http://content.healthaffairs.org/content/21/2/13.full.pdf+html; Michael Marmot, Fair Society, Healthy Lives, Strategic Review of Health Inequalities in England Post-2010 (2011), http://www.instituteofhealthequity.org/Content/FileManager/pdf/fairsocietyhealthylives.pdf [http://perma.cc/3FF9-6WKT].

127 World Health Org., Global Action on the Social Determinants of Health to Address Health Equity (2015), http://www.who.int/social_determinants/implementation/WHA68_sdh-resolution65-8-May2015.pdf?ua=1. [http://perma.cc/A97L-9G2W].

128 See National Research Council and Institute of Medicine, U.S. Health in International Perspective: Shorter Lives, Poorer Health (2013).

129 Hofrichter, supra note 124 (describing three movements that revealed health inequities: epidemiologic studies of the social gradient; studies of health inequalities; and the health and human rights movement). See Samuel Kelton Roberts, Jr., Infectious Fear: Politics, Disease, and the Health Effects of Segregation (2009).

130 SDG, supra note 36. The Sustainable Development Goals (SDG) include other goals addressing some of the social determinants of health, such as water, sanitation and gender equality. Id. The SDG ambitiously seek to achieve by 2030 what their predecessor, the Millennium Development Goals, failed to accomplish by 2015. See MDG, supra note 36. But the SDG do not provide a mechanism for reviewing compliance. UN G.A. Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development (2015), http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E.

131 Marmot, Fair Society, supra note 126, at 34.

132 Laaser & Epstein, supra note 61, at 75; see Gruskin, Sofia et al., “Rights-Based Approaches” to Health Policies and Programs: Articulations, Ambiguities, and Assessment, 31 J. Pub. Health Pol’y 129, 129–130 (2010)Google Scholar.

133 See Hunt, supra note 66; see generally 17 Health & Hum. Rts. J. 1 (2015) (issue devoted to evidence of the impact of human rights approaches on improving health).

134 See Calain, Philippe & Poncin, Marc, Reaching Out to Ebola Victims: Coercion, Persuasion or an Appeal to Self-Sacrifice?, 147 Soc. Sci. & Med. 126, 129 (2015)Google Scholar (describing how a singular focus on preventing the spread of Ebola resulted in resistance among affected groups and unnecessary restrictions on human rights); Viens, A.M., Interdependence, Human Rights and Global Health Law, 23 Health Care Analysis 401, 409–415 (2015)Google Scholar (pointing out that it is not necessarily true that “if health is promoted, then human rights are promoted”).

135 See Annas, George J., The Statue of Security: Human Rights and Post-9/11 Epidemics, 38 J. Health L. 319, 342-46 (2005)Google Scholar; Mariner, Annas & Parmet, supra note 108.

136 Laura Wagner, New Jersey Governor Facing Lawsuit From Nurse Quarantined During Ebola Scare, NPR (Oct. 22, 2015, 4:19 PM), http://www.npr.org/sections/thetwo-way/2015/10/22/450908372/new-jersey-governor-facing-lawsuit-from-quarantined-nurse.

137 Complaint at *2, Hickox v. Christie, 2015 WL 6438125 (D.N.J. Oct. 22, 2015) (No. 2:15-cv-07647- KM-JBC).

138 Id. at *3-*4.

139 International Health Regulations 2015, World Health Org., art. 3 (2d. ed. 2015), http://apps.who.int/iris/bitstream/10665/43883/1/9789241580410_eng.pdf [http://perma.cc/X6ZP-7GGV] [hereinafter WHO IHR].

140 Id. at art. 23(3).

141 Mariner, The Affordable Care Act and Health Promotion, supra note 88, at 299.

142 Mariner, Wendy K., Social Solidarity and Personal Responsibility in Health Reform, 14 Conn. Ins. L. J. 199, 214-27 (2008)Google Scholar (describing wellness programs).

143 Id. at 226; Horwitz, Jill R. et al., Wellness Incentives in the Workplace: Cost Savings Through Cost Shifting to Unhealthy Workers, 32 Health Aff. 468, 468 (2013)Google Scholar.

144 See supra notes 82-86 and accompanying text.

145 See Tom R. Tyler, Why People Cooperate: The Role of Social Motivations 1 (2011) (arguing that people are more likely to be motivated to cooperate when authorities are believed to be sincerely acting in their best interests and using fair procedures).

146 UDHR, supra note 109, at Art. 1, 2, 12; see, e.g., Phillip, Abby & Zezima, Katie, GOP Tack on Heroin Crisis Underlines Racial Divide, Wash. Post A1, A9 (Nov. 28, 2015)Google Scholar (reporting that some US politicians support medical treatment instead of criminal prosecution for users of heroin, 90% of whom are white, but not for marijuana, where blacks are the overwhelming majority of those arrested despite using marijuana in about the same proportion as whites).

147 United Nations, Convention on the Rights of Persons with Disabilities, art. 15, Dec 13, 2016, U.N.T.S. (recognizing disability as a human rights issue).

148 ECOSOC, supra note 117.

149 See Sofia Gruskin et al., supra note 132, at 131 (arguing scholars, especially in medicine and public health, often neglect rights-based approaches to improving population health).

150 See e.g., Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Implementation Report 3 (A/HRC/31/53, Dec. 28, 2015) (“[A] human rights perspective on environmental protection not only promotes human dignity, equality and freedom — the benefits of implementing all human rights — but also improves the effectiveness of policymaking generally”), http://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/292/96/PDF/G1529296.pdf?OpenElement; see Baum, Fran E. et al., Social Vaccines to Resist and Change Unhealthy Social and Economic Structures: A Useful Metaphor for Health Promotion, 24 Health Promotion Int’l 428, 429 (2009)Google Scholar (proposing use of the term “social vaccines” – mentioned by the UN International Labour Organisation and others in 2006 – to mean changes in the social and economic determinants that can help prevent disease and injury).

151 Rio+20 Outcome Document, supra note 37, § 9, at 1-2, para. 9.

152 See generally, Privatisation and Human Rights in the Age of Globalisation (K. de Feyter Koen & F. Gómez Isa eds., 2005).

153 Jeffrey L. Sturchio & Akash Goel, Ctr. For Strategic & Int’l Stud., The Private Sector Role in Public Health 3 (2012).

154 See, e.g., Davis, Sara L.M., Human Rights and the Global Fund to Fight AIDS, Tuberculosis, and Malaria, 16 Health & Hum. Rts. J. 134, 134 (2014)Google Scholar, http://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2014/06/Davis1.pdf [http://perma.cc/HQ7T-XAWQ].

155 See Chapman, Audrey, The Impact of Reliance on Private Sector Health Services, 16 Health & Hum. Rts. J. 122, 123 (2014)Google Scholar; see generally Deborah Stone, The Samaritan’s Dilemma: Should Government Help Your Neighbor? (2008).

156 See Mariner, Wendy, Paternalism, Public Health, and Behavioral Economics: A Problematic Combination, 46 Conn. L. Rev. 1817, 1819 (2014)Google Scholar (arguing that neo-liberal and behavioral economic policies tend to reject regulation of industry and encourage regulating individuals).

157 See Kent Buse, Making Sense of Global Health Governance: A Policy Perspective (2009) (noting that communities are not taking full advantage of the opportunities to prevent health risks that can arise from globalization); Baldwin, Peter, Beyond Weak and Strong: Rethinking the State in Comparative Policy History, 17 J. Pol’y Hist. 12, 20–21 (2005)Google Scholar. For recommendations on how businesses should protect human rights, see U.N. Office of the High Comm’r for Human Rights, Guiding Principles on Business and Human Rights (2011); http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. [http://perma.cc/2BRW-JW48].

158 See, e.g., W.H. Mcneill, Plagues and Peoples (1977).

159 See, e.g., Fact Sheet: The Global Health Security Agenda, Off. Press Sec’y, White House (July 28, 2015) (noting that the goal of a $1 billion increased investment is to “prevent, detect and respond to future infectious disease outbreaks in 17 countries,” and “[m]ore than half is for African countries”), http://www.whitehouse.gov/the-press-office/2015/07/28/fact-sheet-global-health-security-agenda [http://perma.cc/S7L5-6PHW].

160 See Frieden, Thomas R. et al., Safer Countries Through Global Health Security, 383 Lancet 764, 764 (2014)Google Scholar (asserting that “health security” has 3 key elements: “prevention wherever possible, early detection, and timely and effective response”).

161 Elbe, Stefan, Should Health Professionals Play the Global Health Security Card?, 378 Lancet 220, 221 (2011)Google Scholar (arguing that health security has “orient[ed] the global health agenda around a fairly narrow set of [infectious] diseases,” or bioweapons of most concern to wealthy countries and donors, whereas the term should include endemic and chronic diseases that plague lower income countries).

162 WHO IHR, supra note 139, art.3, at 10. The International Sanitary Convention in Paris created the International Sanitary Regulations in 1851 following a cholera epidemic. Lawrence O. Gostin, Global Health Law 179 (2014). In 1951, after World War II, the World Health Assembly adopted the International Sanitary Regulations to encourage nations to cooperate in preventing the cross-border spread of communicable diseases, particularly cholera, plague, small pox and yellow fever. These were replaced in 1969 by the first International Health Regulations, which were amended in 1973, 1981 and 2005 (after the SARS epidemic). WHO IHR, supra note 139; see Heymann, David, Public Health, Global Governance, and the Revised International Health Regulations, in David A. Relman et al., Infectious Disease Movement in a Borderless World: Workshop Summary 183, 184-85 (2010)Google Scholar.

163 See Annas, George J., Ebola and Human Rights: Post-9/11 Public Health and Safety in Epidemics, 42 Am. J. L. & Med. 331, 348 (2016)Google Scholar (noting that the 2003 SARS epidemic and the 2015 Ebola epidemic revealed the IHR’s shortcomings).

164 See Braveman, Paula & Gruskin, Sofia, Poverty, Equity, Human Rights and Health, 7 Bull. World Health Org. 81 (2003)Google ScholarPubMed.

165 See Sousa, Cindy A., Political Violence, Collective Functioning and Health: A Review of the Literature, 29 Med. Confl. Surviv. 169 (2013)Google Scholar.

166 See Ruhm, Christopher J., Macroeconomic Conditions, Health and Government Policy, in Making Americans Healthier: Social and Economic Policy as Health Policy: Rethinking America’s Approach to Improving Health 173 (Schoeni RF et al. eds., 2008)Google Scholar.

167 Anumba Joseph Uche, The Impact of Globalization on Public Health and Infectious Diseases, http://www.academia.edu/4454478/THE_IMPACT_OF_GLOBALIZATION_ON_PUBLIC_HEALTH_AND_INFECTIOUS_DISEASES [http://perma.cc/BVC5-DWFP].

168 Baum, Fran, Health, Equity, Justice and Globalisation: Some Lessons from the People's Health Assembly, 55 J. Epidemiology Community Health 613, 613 (2001)Google Scholar (“All the indications are that the current forms of globalisation are making the world a safe place for unfettered market liberalism and the consequent growth of inequities … [and] posing severe threats to both people‘s health and the health of the planet.”).

169 See Alexander Danilenko et al., World Bank Grp., The Ibnet Water Supply and Sanitation Blue Book 2014: The International Benchmarking Network for Water and Sanitation Utilities Databook (2014), http://openknowledge.worldbank.org/bitstream/handle/10986/19811/9781464802768.pdf?sequence=5&isAllowed=y.

170 WHO IHR, supra note 139, art. 1, at 9.

171 See Fidler, David P., From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int’l L. 325, 325-92 (2005)Google Scholar; Frieden et al., supra note 160; Rodier, Guénaël et al., Global Public Health Security, 13 Emerging Infectious Diseases 1447, 1447 (2007)Google Scholar (“The framework of the newly revised International Health Regulations is a key driver in the effort to strengthen global public health security.”). In the US, implementation of the International Health Regulations (2005) was overseen by the Homeland and the National Security Councils in the HHS/ASPR Office of Policy and Planning. U.S. Dep’t of Health & Human Servs., Office of the Assistant Sec’y for Preparedness and Response, International Health Regulations, http://www.phe.gov/preparedness/international/ihr/pages/default.aspx [http://perma.cc/D997-UZU4].

172 Global Health Security Agenda, U.S. Dept. of Health & Human Servs., http://www.globalhealth.gov/global-health-topics/global-health-security/ghsagenda-launch.html [http://perma.cc/5WSC-ZFKB]. See Annas, supra note 135; Mariner, Annas & Parmet, supra note 108.

173 WHO IHR, supra note 139.

174 Id.

175 Annas, supra note 163.

176 Rebecca Smith, WHO Declares Ebola Epidemic an International Health Emergency, Telegraph (Aug. 8, 2014, 1:18 PM), http://www.telegraph.co.uk/news/worldnews/ebola/11020636/WHO-declares-Ebola-epidemic-an-international-health-emergency.html. The two earlier declarations were for H1N1 in 2008 and a long-term polio outbreak.

177 WHO declared Zika a public health emergency of international concern, perhaps in reaction to its belated recognition of the Ebola epidemic. See Zika Outbreak: WHO's Global Emergency Response Plan, World Health Org. (Mar. 3, 2016), http://www.who.int/emergencies/zika-virus/response/en/ [http://perma.cc/5Y9D-EJPQ].

178 See WHO IHR, supra note 139.

179 Id.

180 The Global Health Security Agenda was created due to concerns over the low global rate of compliance with the 2005 International Health Regulations. See Global Governance Monitor: Global Health Timeline, Council on Foreign Relations (2013) (“Country compliance with the IHRs has been inadequate, underscoring the need for additional mechanisms to persuade impoverished or recalcitrant states to cooperate and ease the flow of crucial information and viral samples for potential pandemic emergencies.”), http://www.cfr.org/global-governance/global-governance-monitor/p18985%23!/public-health#timeline [http://perma.cc/TK83-H3ZV].

181 See Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics and Morals 573 (2d ed. 2000); Daniels, Norman, A Progressively Realizable Right to Health and Global Governance, 23 Health Care Analysis 330, 330-40 (2015)Google Scholar.

182 A recent response to Ebola was another call to strengthen the global system to report outbreaks of communicable disease and keep them within the country of origin. See Moon, Suerie et al., Will Ebola Change the Game? Ten Essential Reforms Before the Next Pandemic. The Report of the Harvard-LSHTM [London School of Hygiene and Tropical Medicine] Independent Panel on the Global Response to Ebola, 386 Lancet 2204, 2204-21 (2015)Google Scholar. The first of ten recommended reforms is that the “global community must agree on a clear strategy to ensure that governments invest domestically in building” capacities to “detect, report and respond rapidly to outbreaks.” Id. at 2204. The authors characterize their proposals as “concrete, actionable, and measurable,” but similar recommendations have borne little fruit. Id.

183 See generally James A. Morone, Hellfire Nation: The Politics of Sin in American History (2003); Guenter B. Risse, Driven by Fear: Epidemics in Isolation in San Francisco’s House of Pestilence (2016); Priscilla Wald, Contagious – Cultures, Carriers, and the Outbreak Narrative (Susan J. Matt & Peter N. Stearns eds., 2008).

184 See U.N. Convention on the Rights of Persons with Disabilities, Article 1 (recognizing disability as a human rights issue), http://www.un.org/disabilities/convention/conventionfull.shtml [http://perma.cc/5HNH-CRGN]; WHO Framework Convention on Tobacco Control, WHO Framework on Tobacco Control (2003) (including provisions addressing the price of tobacco products and limitations on labeling, advertising and promotion of tobacco products, as well as bans on sales to minors and smoking in certain areas), http://www.who.int/tobacco/framework/WHO_FCTC_english.pdf [http://perma.cc/UBF5-XU7Q].

185 See, e.g., Howard-Jones, N., Origins of International Health Work, 1 Brit. Med. J. 1032, 1034 (1950)Google Scholar (“[Q]uarantine barrier methods are of very limited value and … resistance of a community to infection is dependent upon its internal conditions.”).

186 For a historical example, see Christopher Hamlin, Public Health and Social Justice in the Age of Chadwick: Britain 1800-1854, 144-47 (1998) (describing the Chadwick-Farr dispute over whether hunger and deprivation were causes of illness and antisocial behavior).

187 See Brown, The Political Face of Public Health, supra note 102; Stuckler, David, Basu, Sanjay & McKee, Martin, Public Health in Europe: Power, Politics, and Where Next?, 32 Pub. Health Revs. 213, 213-42 (2010)Google Scholar.

188 See 17 Health & Hum. Rts. J., supra note 133.

189 See Rio+20 Outcome Document, supra note 37, at 25 (“We call for the involvement of all relevant actors for coordinated multi-sectoral action to address urgently the health needs of the world’s population.”); Tom Farley, Saving Gotham: A Billionaire Mayor, Activists Doctors, and the Fight for Eight Million Lives 238 (W.W. Norton & Company, 1st ed. 2014) (“The health department of 1900 needed epidemiologists, microbiologists, sanitary engineers, inspectors, nurses, and doctors. The New York City health department of 2010 needed economists, lawyers, policy experts, data scientists, community activists, and specialists in using images and words in the mass media.”).