November 19, 2001
States Weighing Laws to Fight Bioterrorism
By Justin Gillis
Spurred by fears of bioterrorism, state legislators across the country are pushing new laws that would permit large-scale quarantine, forcible seizure of hospitals and other businesses, mandatory vaccination or treatment, and destruction of contaminated property without the owners' consent.
The state lawmakers are basing their efforts on a model law drawn up in Washington and backed by the Bush administration. As preparation for an attack using smallpox or other germ weapons, the lawmakers want to replace existing public-health statutes with a sweeping, detailed enumeration of state emergency powers.
Some variation of the measure is likely to be considered in virtually every state next year, forcing lawmakers to grapple with the right balance between civil liberties and emergency health powers in a new age of biological terrorism.
"Most public-health laws were written years ago -- some are over 100 years old," said Georges Benjamin, Maryland's health secretary. "There really hasn't been a comprehensive update. Now is the time to have the debate, not when you have a crisis."
Existing laws vary from state to state, but they are often just a paragraph or even a sentence granting health authorities emergency powers like quarantine. The laws, which haven't been put to a severe test in the modern era of constitutional rights, rarely describe the health commissioner's powers in detail or set out standards for using them.
The old laws usually don't provide for steps like property destruction or requisition of medical facilities and supplies. In many states, the laws prohibit private businesses like pharmacies, which might be first to pick up on a bioterror attack, from sharing information with the health authorities, and they prohibit the health authorities from sharing information with the state police.
The model law would alter all that, replacing the old statutes with 40 pages of legal code detailing powers and standards, as well as requirements for information-sharing. The powers would be accompanied by broad procedural safeguards, including a requirement that authorities present evidence and obtain court orders before instituting most mandatory measures, such as quarantine. Owners whose property was seized would be entitled to compensation.
People who refused to comply with the emergency measures would in some cases be subject to criminal penalties, and the measures could be enforced at gunpoint, if necessary, by state police or the National Guard.
Backers say the powers, though extraordinary, would be used only in an emergency that threatened the lives of large numbers of Americans. The scenario they cite most often is an outbreak of smallpox, which could sweep across the world and kill a third of the people it infected. There is talk of adding nuclear and chemical attack as events that would trigger the emergency powers.
Many state political leaders and health officials are critiquing aspects of the model law, and it continues to evolve. But the basic idea has already won backing from the Department of Health and Human Services. It's being developed with input from state attorneys general, governors and other groups.
"It's really been overwhelming," said Lawrence Gostin, primary author of the proposed legislation and director of a center on public-health law at Georgetown and Johns Hopkins universities. "The horrible tragedy that befell the nation on September 11 did produce one silver lining, which is that it got together groups that very rarely get together to solve a major health problem."
Gostin's draft has already been introduced as legislation in a few states, including Illinois and Nevada. Acting Massachusetts Gov. Jane Swift, ruing her state's antiquated health laws, also plans to push a measure based on the model law.
Sponsors in several states, including Nevada, are expected to scale back some of the powers in the draft. But support for the overall measure ranges across the political spectrum.
"People just haven't realized the potential scope of a problem like" smallpox, said Lisa Madigan, a Democratic state senator from Chicago who has introduced the Gostin measure into the Illinois General Assembly. "The reality is that a third of the people who were infected would die, and it's extremely contagious."
The law is already encountering opposition, however. Some people say it would substitute a complicated, dangerous new scheme for older state health laws that, while sometimes vague, at least had the virtue of simplicity.
"When you actually look at the state public-health laws, they aren't bad," said Edward Richards, head of the Center for Public Health Law at the University of Missouri Kansas City. "One size just doesn't fit all. Each state needs to look at its own laws to figure out what needs to be fixed."
Many of the state laws date to the 19th or early 20th centuries, when states and cities often used coercive health measures grounded in vague legal authority.
These days, public health measures may involve practices such as mandatory vaccinations for children entering school or periodic court orders isolating recalcitrant tuberculosis patients or forcing them to take medicine.
But quarantine power has not been used extensively in more than half a century. It once generated widespread debate in the United States, mostly over how health officers decided who was to be cut off from the rest of the population. San Francisco's Chinatown was locked down in 1900 in the name of preventing the spread of plague, provoking bitter protest.
An Irish immigrant cook named Mary Mallon was confined to an island in New York's East River for 26 years in the early part of the 20th century to prevent her from spreading typhoid fever. Other healthy typhoid carriers were not locked up, and "Typhoid Mary" was perceived in some quarters as a victim of the anti-Irish bigotry then pervasive in the country.
Gostin said he believes that, with improvements in the law, the nation can avoid similar perceptions of injustice even if it has to use expanded emergency powers to cope with a 21st century bioterror attack. He said his model statute builds in safeguards that older laws almost uniformly lack.
"Unless the emergency simply prohibits it, we require the court to approve the quarantine beforehand," Gostin said. "That goes a lot farther than almost any current statute. When people can get beyond the scary powers, you have to think this is a much better way."
He drafted his model law during the anthrax scare at the explicit request of the Centers for Disease Control and Prevention. It went out to states in late October with the backing of Tommy G. Thompson, the secretary of the federal Health and Human Services Department. "We need not only a strong health infrastructure and a full stockpile of medical resources, but also the legal and emergency tools to help our citizens quickly," Thompson said.
The federal government, though a vital repository of expertise, has relatively little power in health emergencies. Two centuries of American constitutional law have vested the power to protect the public's health and safety -- the "police power" -- in the states, and state governors and health directors would be on the front lines of any catastrophic disease outbreak.
Gostin's law would give them new rights to monitor personal information in their attempt to track public health. Under his measure, for instance, a pharmacist who noticed a sudden increase in sales of medicine for diarrheaor cough, perhaps signaling a bioterror attack, would be required to report that information to the health department -- along with the names and addresses of the patients buying the medicine.
Once an attack occurred, a governor could declare an emergency and invoke the powers in the law. Health authorities could seize or ration medical supplies, seize any hospital or other facility needed to contain the outbreak, decontaminate or destroy any building posing a threat, seize and destroy corpses, impose quarantine measures, and force people to undergo medical examination, vaccination or treatment.
Some of these actions would require court orders or hearings, with provision for emergency courts if necessary. Refusal to submit to vaccination, quarantine or treatment would be misdemeanors.
Gostin originally contemplated epidemic disease in drafting his law, but some state officials want him to add nuclear and chemical attack as triggering events, since they could render large areas of a city or state dangerous to public health, perhaps for years.
Health departments in Washington, Maryland and Virginia are all expected to study Gostin's draft, but they are approaching the proposed law cautiously. All of them have quarantine power already.
"What the recent attacks have raised is the unimaginable: What if a large number of people are affected by terrorism?" said Louis Rossiter, Virginia's secretary of health and human resources. "Are we ready for that?"
He expressed confidence in Virginia's laws. Several health administrators said it's likely they will pick and choose from the Gostin measure to close any serious gaps in their laws, rather than adopting it wholesale.
"States should look at it as a menu, and compare their existing authority with the menu," said Benjamin, the Maryland health secretary. "I think the most important thing is that people not take any model act and simply try to push it through willy-nilly."
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