Public Health Law: II. Legal Moralism and Public Health
II. LEGAL MORALISM AND PUBLIC HEALTH
Modern public health, which uses organized community effort, law, and regulation to save lives and prevent disease, has long been entangled with legal moralism, which uses the same measures to protect society against behavior that is viewed in some quarters as "offensive, degrading, vicious, sinful, corrupt, or otherwise immoral" (Schur and Bedau, p. 1). "Morals offenses" have "included mainly sex offenses, such as adultery, fornication, sodomy, incest and prostitution, but also a miscellany of nonsexual offenses" (Feinberg). Legal moralism has cultural and religious origins, but its deepest roots are in purity rituals codified in religious and secular codes (Douglas). Purity rituals are avoidance rituals designed to make the environment and the community safe from the threat of uncleanness and contamination and to promote social order. These codes governed diet, sexual conduct, bodily cleanliness, and avoidance of contamination.
In its most expansive expression legal moralism is the belief that these behavioral codes, regulations, and legal proscriptions are foundational to a social order. To the moralist, drug taking, vice, crime, and sexual promiscuity not only harm the self and others but also threaten, through contagion and example, to loosen the bonds that hold society together. It is the connection between the proscribed conduct or practice and the theories about how the spread of this conduct threatens social order that so often results in the confusion of public health and moralism. Because moralism is often expressed in terms of public-health theories of contagion, it has proved difficult to separate the two modes of thought.
The belief that immorality is contagious also often includes the belief that immorality causes disease. Barbara Gutmann Rosenkrantz's authoritative history of public health in Massachusetts cites a review of Lemuel Shattuck's 1850 report on the health of the state, noting that the "sanitary movement does not merely relate to the lives and health of the community; it is also a means of moral reform.… The ultimate connection between filth and vice has been noted by all writers upon this subject" (Rosenkrantz, p. 2).
Moralism in public health arises when society or groups in society respond to a health crisis more by voicing objections to a social practice or to a group engaged in that practice than by rationally assessing the dangers of disease and the best ways to prevent its spread. The parallels between theories of disease causation found in public health and legal moralism are often challenged and overturned by scientific theories of disease causation. While public-health campaigns and officials have often addressed problems moralistically in the past, the long-term trend indicates a separation of the two ways of thinking. Moralism has also suffered attacks from religious groups that emphasize social justice or inwardness more than adherence to religious rules. Finally, moralism is challenged by the modern and postmodern tolerance of a wider range of sexual expression and by the spreading support for political liberties and rights of privacy for all citizens, even those accused of immoral practices.
Moralism's most potent threat to public health comes from the ways in which epidemics and moral dissolution are believed to be inextricably tied together. This entanglement makes the victims of new outbreaks of certain diseases seem a threat to society itself. It also leads to powerful drives to stigmatize and shame the epidemic's victims, in the use of legislation and regulation to invoke shame and public denunciation for a category of persons or in what have been called "status degradation ceremonies" (Garfinkel). The current struggle in the fight against acquired immunodeficiency syndrome (AIDS) is the best-known contemporary example of the confusion between moralism and public health. Thus, the purpose of the policies of the United States in incarcerating prostitutes during World War I was not just to prevent the spread of syphilis and venereal disease but also to shame and punish a class of individuals and to close and solidify the ranks of a nation going to war (Brandt). This moral campaign of imprisonment took priority over the use of new medical treatments for syphilis and gonorrhea, which, while still primitive, were surely more effective.
Modern public-health problems, especially those of a contagious or epidemic nature, provide a constant temptation for legislators, health officials, and the public to confuse the ends of preventing harm to individuals and communities and of proscribing immorality. Yet it would be wrong to conclude that all proscriptions of a practice or behavior are tantamount to moralism. Moralism and social disapproval are not the same thing, even though the latter may be an echo of the former. Social disapproval or even indignation about a practice remains a potent ally of many public-health campaigns.
Public Health and Alcohol Policy
Legal moralism has played a prominent role in alcohol policy, particularly in movements to prohibit all drinking in the United States, in England, and in the Nordic countries. The history of alcohol policy, more than that of most public-health problems, reveals the difficulty in separating health issues from moralizing claims. It also reveals how some of the ways we seek to avoid moralism can be counter to science and to the health and safety of the public.
In the United States, Prohibition, or the outlaw of the manufacture and sale of alcoholic beverages, was enforced from 1917 until 1933. The Prohibition movement is a fascinating intermingling of progressive and scientific thinking, moralism, and religious fundamentalism. For example, the Progressive period in U.S. history (roughly 1890 to 1920) was not just a period when the states began to expand their powers over child labor, over the working conditions of adults, or of assuring safe food and water by strengthening the regulatory power of the states over private property; it was also a period that witnessed the rise of movements to protect the decency and purity of the public through antipornography legislation, crackdowns on prostitution (especially during World War I), and American Prohibition (Brandt). There is little doubt that the various reform movements that culminated in the passage of the Prohibition amendment brought to the nation's attention a social problem (drunkenness, the saloon, and an overly powerful liquor interest) that demanded state and federal legislation. Also, the record shows clearly that the results of Prohibition, measured solely in public-health terms, were sharply reduced overall consumption of alcohol and related steep declines in serious public-health problems like cirrhosis, admittance to public hospitals for alcohol-related disorders, and the like (Moore and Gerstein; Beauchamp).
The strong secular and progressive side to the movement for Prohibition saw the saloon as a great social problem, one that undermined the public health and safety and promoted domestic violence and crimes against women. Both the movements for women's suffrage and the movement against slavery frequently were headed by leaders who also advocated Prohibition. Yet this began to change in the last decade of the nineteenth century. The women's movement had focused its energies on winning suffrage, and the movement against slavery had long since been replaced by Reconstruction. During the concluding decades of the agitation for Prohibition, the first two decades of the twentieth century, support for Prohibition came primarily from Protestant churches; national Prohibition's justification shifted more and more toward the moralistic claim that drink was the root of most of society's evil. (Moralism is often characterized by inflated claims of the evils or dangers from a substance or a practice, even in very small quantities or isolated and scattered acts.) The intertwining of moralism and public policy, especially for alcohol and drug taking, seems more common in nations where fundamentalist forms of Protestantism that stress adherence to religiously sanctioned behaviors are widespread, or in Muslim nations, where similar fundamentalism obtains; Catholic societies have never had successful Prohibition movements (although temperance movements are found in Ireland).
The backlash to Prohibition produced theories of alcoholism that sought both to deny its moralistic forebears and to establish a new and scientific theory of causation, called the disease concept of alcoholism. This was the belief that alcoholism was caused by an inability to control drinking. In parallel fashion, and also to separate itself from a discredited past, the new alcoholism movement denied the public-health benefits of Prohibition, and as late as the 1960s leading national experts claimed that Prohibition caused people to drink more. The links between what a society drinks generally and the level of alcohol problems were viewed as part of a neoprohibitionist agenda.
The attempt to purge society of moralistic remnants of Prohibition has often been met with surprises. For example, there were strong drives to prohibit alcohol in Norway, Sweden, and Finland during the 1920s and 1930s. Only Sweden avoided Prohibition, in a narrow national referendum vote. In Finland, during the late 1960s and 1970s, the drive to eliminate the rural remnants of their national prohibition legislation of the 1930s led to a sharp relaxation of drinking laws throughout society and the elimination of prohibition in rural areas. The experts believed that restrictions actually encouraged drinking of distilled beverages in unsocialized ways and that by eliminating prohibition, drinking would actually decrease. Yet the measures to liberalize drinking were followed by steep increases in drinking rates and associated problems such as public drunkenness (Beauchamp). Subsequently, state authorities and their advisers retreated from a too-uncritical relaxation of drinking legislation, shifting the justification for alcohol policy more toward a public-health model that accepted limits on all drinking as a necessary part of a sound policy and as not necessarily moralistic.
Western democracies during the 1970s and 1980s witnessed declines in drinking rates, attributed by experts to a growing cultural conservatism and a widening awareness of the public-health consequences of heavy drinking and high levels of per capita consumption. This new period was likely also solidified by the fact that heavy drinking became socially and even morally undesirable, just as smoking became morally undesirable. While drunkenness and addiction were still viewed less punitively, the public began to register its strong disapproval of heavy drinking, especially when it posed risks to others, such as in drinking and driving, or any drinking at all by teenagers. More broadly, the era when drinking itself was not seen as the problem was replaced with a period in which all drinking remains somewhat under a public-health cloud. The evidence that some forms of drinking might promote a healthier heart has caused that cloud to lift only a little.
Smoking and Public Health
At the turn of the twentieth century, smoking was treated as morally offensive. Churches proscribed cigarette smoking and urged public action. But the long-term popularity of smoking spread too quickly, and the campaign was eventually abandoned. Soon smoking was regarded as cosmopolitan and modern. Cigarette smoking rates grew and became widely and culturally approved (Warner). In the 1950s epidemiological studies appeared in the United States and England noting the link between smoking and lung cancer and the possible links with heart disease. The U.S. Surgeon General issued a widely discussed report compiling very strong and extensive research suggesting that smoking was one of the most lethal hazards of our times.
The social climate against smoking began to turn in the late 1960s and 1970s. Antismoking sentiment rose, and cigarette advertising on television was banned. The risks of smoking for third parties was noted. Communities and entire states began to legislate against smoking in public places. Higher taxes on cigarette smoking were advocated. Smoking rates in most industrial societies fell, but most impressively in the United States. This sharp decline is not only due to the extensive public discussion devoted to the hazards of smoking but also to the growing sense of social and even moral disapproval of smoking by the larger society. This social disapproval was sometimes seen as a resurgence of moralism. But there is scant evidence that the strong current of disapproval against smoking adds up to moralism.
Moralism and the AIDS Epidemic
As Allan Brandt notes, the battle against venereal diseases in the first decades of the twentieth century and the rise of AIDS more recently give evidence that moralism remains a powerful element in the social construction of society's definition of these diseases. Early in the twentieth century, syphilis was a symbol of a "society characterized by a corrupt sexuality. Venereal disease has typically been used as a symbol of pollution and contamination, [and of] … a decaying social order. Venereal disease makes clear the persistent association of disease with dirt and uncleanness as well" (Brandt, p. 5).
The most serious challenge to modern public health by legal moralism entered with the AIDS epidemic and HIV-related diseases. Because anal sex and frequent sex with multiple partners heightens the risk of transmission of the HIV virus and because intravenous drug use also seriously elevates the risk of infection from contaminated needles, legislation that seeks to regulate these behaviors—which are widely proscribed in many states—is always open to the charge of moralism.
Early in the epidemic in the United States, bathhouses frequented by homosexual patrons became targets of public-health regulations. Many in the gay community charged that the measures were aimed less at fighting the epidemic than at proscribing homosexuality. These advocates argued, quite plausibly, that the regulations would have little impact on the course of the epidemic in San Francisco or New York, the two cities where conflicts primarily arose. This was because the bathhouses were the site of only a fraction of the proscribed behaviors. Advocates also argued that city officials and state public-health authorities had caved in to political pressures (Bayer, 1991b).
The same charge of moralism and discrimination was also brought when public-health officials attempted to introduce methods of identifying the sexual partners of those who were AIDS victims, or when state medical societies sought legislation to make AIDS and HIV diseases reportable to state health authorities (Bayer, 1991b). (All states require private physicians to report certain communicable diseases to state health officials.) Ronald Bayer, in his book Private Acts, Social Consequences (1991b), has provided the best chronicle of the clash between public-health legislation and the civil libertarians defending AIDS victims. As Bayer says, "These two abstractions, liberty and communal welfare, are always in a state of tension in public health policy" (1991b, p. 16).
It is likely, however, that the AIDS epidemic has permanently altered the landscape of public-health policy, and not just in the United States. No longer will it be possible to easily equate public health only with the use of powers to restrict power and liberty to promote the public health or to see the realms of public health and individual liberty as radically distinct. The growing awareness is that a sound public-health policy requires more than restrictions on liberty and property to promote the communal welfare. It also may require the expansion of private liberties and rights for groups suffering social discrimination based on moralism.
dan e. beauchamp (1995)
SEE ALSO: Abortion; AIDS; Body; Cloning; Conflict of Interest; Death, Definition and Determination of; Embryo and Fetus; Fertility Control; Informed Consent: Legal and Ethical Issues of Consent in Healthcare; Law and Morality; Life Sustaining Treatment and Euthanasia; Maternal-Fetal Relationship; Public Health;Sexual Behavior, Social Control of; and other Public Health Law subentry
Bayer, Ronald. 1991a. "AIDS: The Politics of Prevention and Neglect." Health Affairs 10(1): 87–97.
Bayer, Ronald. 1991b. Private Acts, Social Consequences: AIDS and the Politics of Public Health. New Brunswick, N.J.: Rutgers University Press.
Beauchamp, Dan E. 1980. Beyond Alcoholism: Alcohol and Public Health Policy. Philadelphia: Temple University Press.
Beauchamp, Dan E. 1988. The Health of the Republic: Epidemics, Medicine, and Moralism as Challenges to Democracy. Philadelphia: Temple University Press.
Devlin, Patrick. 1959. The Enforcement of Morals. London: Oxford University Press.
Douglas, Mary. 1966. Purity and Danger: An Analysis of the Concepts of Pollution and Taboo. London: Routledge.
Feinberg, Joel. 1973. Social Philosophy. Englewood Cliffs, NJ: Prentice-Hall.
Garfinkel, Harold. 1956. "Conditions of Successful Status Degradation Ceremonies." American Journal of Sociology 61(5): 420–424.
Gusfield, Joseph R. 1963. Symbolic Crusade: Status Politics and the American Temperance Crusade. Urbana: University of Illinois Press.
Hart, H. L. A. 1963. Law, Liberty, and Morality. New York: Vintage.
Moore, Mark H., and Gerstein, Dean, eds. 1981. Alcohol and Public Policy: Beyond the Shadow of Prohibition. Washington, D.C.: National Academy Press.
Rosenkrantz, Barbara Gutmann. 1972. Public Health and the State: Changing Views in Massachusetts, 1842–1936. Cambridge, MA: Harvard University Press.
Schur, Edwin M., and Bedau, Hugo Adam. 1974. Victimless Crimes: Two Sides of a Controversy. Englewood Cliffs, NJ: Prentice-Hall.
Shattuck, Lemuel. 1948. Report of the Sanitary Commission of Massachusetts, 1850. Cambridge, MA: Harvard University Press.
Warner, Kenneth E. 1986. Selling Smoke: Cigarette Advertising and Public Health. Washington, D.C.: American Public Health Association.