Historical Misfeasance: Immorality to Justice in Public Health

There is no special term to describe public health authorities who conduct legal and proper research experiments or medical procedures that years later are understood as immoral, unethical, and unjust. Other kinds of harms by health care professionals and public officials have specific words to describe them. Malpractice is the legal term for health care practitioners who operate in an improper or negligent manner. Malfeasance describes public officials who do something illegal: steal from state funds or abuse their power to cause harm. And when public officials do something legal but improper, we label it misfeasance. Even worse than the lack of appropriate terminology, in public health cases we do not have an agreed upon way to determine who was hurt or how to provide appropriate justice. Condemnation is usually couched in moral language, as when the Presidential Commission on Bioethical Issues called those who worked on the STD Experiments in Guatemala “morally culpable,” or when presidents, cabinet secretaries, governors or state legislatures apologize.¹ Apologies and moral condemnations, however, do not ensure justice in the present or the future. It is time to consider why we need both a discussion about a specific term and a sense of what constitutes justice, not just for the victims, but for the following generations who are bearing a different kind of burden.²

Horrors in public health’s past are in a special category. They are often done legally, frequently harm those most vulnerable and less likely to have legal recourse, and last for generations in folklore and memory. Public health has a mandate for prevention, or at the very least harm reduction—not just for individuals but whole populations. As such, it has an added requirement to consider what to do in the face of past injustices. Relegating such studies to the “bad old days” done by “bad actors” is too simple.³ Whether it concerns medical studies run by public health practitioners without participants’ consent in the Tuskegee Syphilis Study and Guatemala; state-ordered sterilizations in Virginia, Indiana, North Carolina, and California; or the lead studies by researchers trying to do “harm reduction” in Baltimore, Maryland, we need to explore what such studies should be called and what can be done to remember them while redressing the harms.

The first step toward justice in these kinds of past practices is acknowledging that they happened at all, and accepting state responsibility for what occurred. Whether it is through media scoops, lawsuits, or academic studies, it is necessary to know what, where, why such events happened, and to whom. The “what and where” is sometime easier to determine then the “to whom.” As Stern et al.⁴ argue, the first task is using data, often hidden in microfilm or old paper records in some governmental back office, and doing epidemiological or actuarial analysis—while protecting privacy—to find out who was harmed. In trying to get to “recognition and redress,” as they note, it matters who were the victims of state-ordered sterilization.⁴ To make this knowable Stern’s Eugenic Rubicon project would like to explore the possibility of making the names of victims searchable online so that people become more findable.⁵ None of this is simple. Just ask attorney Fred Gray who spent years tracking down more than 6000 relatives of the men in Tuskegee, or the attorneys who are searching for victims in Guatemala when some of them are known in the records as “the mute of St. Marcos.” But unless there are actual names, not just some stereotyped “poorunknownperson” (making it seem like one person rather than a multitude), the reality of what happened remains vague, and the ability to provide actual financial redress as a form of reparative justice can easily be thwarted.

At a time when Congress is debating whether to do something about Zika and is holding up money to punish Planned Parenthood, and when state legislatures would rather spend limited public funds on current problems rather than past wrongs, it is not simple to pass legislation that provides monetary reparations to those harmed in the past. Nor is it easy to do the work to find victims’ heirs. In the cases of sterilizations, the shame of involuntary sterilization has made it difficult to find survivors. If people can be found, the states ought to offer lifetime health care coverage, not just medical care, along with a lump sum as reparations. In our society, acknowledgment that comes from a monetary “sorry” offers a powerful beginning. This cannot be all.

The “why” often takes methodical work of digging through archives, privately held papers, and many interviews. And the explanations depend in part on what can be found and the analytic frame used to make meaning from the documents. Lawsuits have proven useful here to get the materials. As David Rosner, Jerry Markowitz, and Merlin Chowkwanyun show through their Web site “Toxicdocs,” millions of previously secret documents from chemical industries and their public relations campaigns are now available and could be a model for what can be done in public health cases.⁶ Today, such data dumps from lawsuit discovery processes are searchable by software that makes it possible to learn specifics by time, location, and substance. Legislative hearings, special commissions, and an acceptance that governments must be held accountable for harms can also sometimes address the “why.” But such actions are often fleeting and scarcely remembered just a few years later. As explanations of “why” change over time, revisiting our understanding of what happened should be the work of historians and public health scholars. Public health students and practitioners should be required to frequently discuss these issues beyond moral condemnation. They need to consider what similar practices might look like today, and how they, too, could easily be caught up in unethical practices they now imagine are the right things to do.

The harms of such public health interventions persist in present and future generations, and not just for the victims and their families. These practices happen to communities, not just to the actual individuals.⁷ The trust of public health officials is eroded when knowledge, especially of overwrought or false information, circulates and becomes the symbol for mistrust even when details of what happened are unknown. To save current and future generations we need many things: historical plaques at the points where such practices occurred, lesson plans in state-mandated curriculums, and continued discussions of the structural and institutional practices that made such events possible. Despite the ritualistic nods to the phrase that those who forget history are in danger of repeating past errors, there is no real “preventive history.” But in the end there is no justice if we do not almost Biblically promise to never forget—and to teach this history to our children—not out of guilt, but as an acknowledgment of how justice and prevention are practiced.

Finally, what words might describe past public health wrongs? Maybe “historical misfeasance,” since the actions are often not illegal. But does “historical misfeasance” imply these acts are safely located in the past of public health? Whatever we decide, doing nothing and forgetting is wrong and undermines public health’s best intentions. Justice demands that we keep thinking about what institutional practices made these forms of historical misfeasance seem appropriate and possible as we continually struggle to prevent them in the present.