Annals of Health Law
INTERVENING AT THE RIGHT POINT
global public health.
The same analysis applies to the legitimate concerns that generating
needed buy-in from policy stakeholders regarding structural determinants of
global pain will be much more difficult than that needed regarding access to
essential treatments for pain (the latter of which has hardly proved facile).
Even if the scope of such problems is significant, that significance does not
somehow justify a decision to avoid action on the social determinants of
pain precisely because such a decision ensures that meaningful
improvement in ameliorating burdens of global pain is extremely unlikely
These concerns reflect what this article has termed the “ethics of health
policy paradox”: what we can do is not what we ought to do, and what we
ought to do is not what we can do.109 The ethical dictum that “ought”
implies can help create the moral quandary; yet it is literally no answer to
the normative claim that we ought to act on structural determinants of
health to simply assert that we should only do what we can. Indeed, this is
simply a restatement of the moral problem, which is that what we are
apparently capable of doing at any one time may not be what we ought to
do. And while ought implies can, what we are in fact capable of doing does
not exhaust the set of what we ought to do. Averring as such is an instance
of the naturalistic fallacy.
Of course, this article does not claim to have the answer to the ethics of
health policy paradox, if any such answer even exists. However, it is
possible to argue that stakeholders, if not globally than certainly within
countries, are in fact capable of taking action on the SDOH in ways that
would be likely to ameliorate pain. The history of public health is replete
with such examples, and, as for contemporary examples, there are countries
around the globe whose welfare apparatus and social protection policies are
both more developed and seem better able to ameliorate (the health effects
of) deleterious social and economic conditions.110 Even assuming arguendo
that stakeholders are in fact incapable of acting on the structural
determinants of pain, it does not necessarily follow that cosmetic L&P
interventions are morally justified.
There is little dispute that pain is an enormous and growing global health
109. See Goldberg, In Support of a Broad Model, supra note 67, at 70.
110. See generally Dennis Raphael, The Political Economy of Health Promotion: Part
1, National Commitments to Provision of the Prerequisites of Health, 28 HEALTH
PROMOTION INT’L 95 (2011); Dennis Raphael, The Political Economy of Health Promotion:
Part 2, National Commitments to Provision of the Prerequisites of Health, 28 HEALTH
PROMOTION INT’L 112 (2011) .