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Discussion Questions: Analyze the idea that the only way to safeguard the public from continuing threat of bioterrorism is to impose restrictions on civil liberties. What are some trends that have been taken in American history in dealing with public health issues? Describe the various elements of public health statutes that are important elements of public health emergency response plans. Should restricting civil liberties be a last resort when dealing with public health issues?Instructions: Fully utilize the materials that have been provided to you in order to support your response. Your initial post should be at least 500 words. Forum posts are graded on timeliness, relevance, knowledge of the weekly readings, and the quality of original ideas. Sources utilized to support answers are to be cited in accordance with the APA writing style by providing a general parenthetical citation (reference the author, year and page number) within your post, as well as an adjoining reference list. Refer to grading rubric for additional details concerning grading criteria.Grading: Forums are graded using the following rubric: SSGS Discussion Forum Grading Rubric
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CIVIL-LIBERTIES ISSUES CHECK PLANS TO FIGHT BIOTERRORISM
Source: Wall Street Journal, May 17, 2002.
AFTERMATH OF TERROR
Civil-Liberties Issues Check Plans to Fight Bioterrorism
By MARILYN CHASE, Staff Reporter of THE WALL STREET JOURNAL
What would happen if another bioterrorist struck the U.S.?
Probably the same confusion, fear and uncoordinated response
that happened during last fall’s anthrax attacks. Federal and state
plans to respond to bioterrorism have run up against civil
libertarians and a host of others who worry their rights will be
trampled. Even some hospital groups have fought against plans
for bioterror attacks because they don’t want contagious patients
in their facilities.
Just seven months ago, when anthrax was killing people and
closing parts of the U.S. Postal Service and Washington D.C.,
nothing seemed more important than preparing for bioterror. A
model law, drafted at the request of the Centers for Disease
Control and Prevention, was rushed to state governments last fall
to help their governors and public-health departments strengthen
their quarantine powers to deal with a newer, larger and more
dangerous bioterror attack with a contagious disease such as
smallpox.
Last Updated
04 Nov 2002
But proposed legislation based on the model law was struck
down in states including Idaho, Nebraska, Wyoming and
Wisconsin and died in committee in Mississippi and Washington
state. Groups ranging from the liberal American Civil Liberties
Union to the conservative American Legislative Exchange
Council decried what they saw as sweeping infringements of
personal liberties. Although 11 states have passed some version
of the act, it appears in many states the laws will be delayed or
significantly diluted in scope, if implemented at all.
In the meantime, the nation remains vulnerable to bioterror,
public-health officials and bill supporters say ruefully. Lawrence
Gostin, a law professor at Georgetown University in Washington
and one of the authors of the model law, calls opponents
“ostriches with their heads in the sand.”
The Model Emergency Health Powers Act, was intended to be a
template for state laws around the country. It allowed state
governors 30 days of emergency power, with the right to
quarantine, isolate, test, treat and vaccinate people. People
refusing to be treated or vaccinated could be put into quarantine.
It also allowed officials to take over hospitals and pharmacies
during an emergency, allocate drugs and vaccines, and even
ration food and fuel. It further permitted the state to close,
evacuate and, when necessary, destroy contaminated property.
People seeking release from quarantine were provided court
hearings, as well as compensation for property seized under the
law.
The latest setback for the law’s proponents came in California,
where a sweeping Emergency Health Powers Act was gutted in a
legislative committee and sent back for study. According to a
glum Keith Richman, a physician and the Republican state
legislator who introduced the legislation, “My bill is dead.”
An autopsy of the California bill illustrates how far apart the two
sides are.
The American Civil Liberties Union of California blasted the
model act for having too broad a definition of bioterror
emergency, and too narrow a set of safeguards for due process,
medical privacy, and religious objections to procedures like
cremation, spokeswoman Valerie Small Navarro says.
Also opposing the bill was the American Legislative Exchange
Council, a free-market advocacy group. Sandy Liddy Bourne, a
council official, said the proposed bill “puts a stranglehold on our
civil liberties.” She charged the act constituted an unwarranted
expansion of state public-health powers and warned it would lead
to declarations of quarantine “on the vague definition of a
biological threat.”
Some groups, including the Association of American Physicians
and Surgeons, a conservative medical lobby, objected to the
law’s provisions for compulsory shots in an emergency. “Our
group is against forcing vaccination on people,” says Jane Orient,
a Tucson doctor and executive director of the group, which
lobbied statehouses from Albany to Sacramento conjuring
images of forced treatment at gunpoint.
Measures to limit the spread of deadly contagious disease by
temporary isolation of the sick also provoked opposition. The
Capitol Resource Institute, a nonprofit family-advocacy group
based in Sacramento, rejects any bill that might separate
families.
Hospital quarantine of people with a disease such as smallpox is
another flashpoint. “At a hospital, unless you empty out quickly,
you risk exposing a lot of innocent people,” says Jan Emerson,
spokeswoman for the California Healthcare Association, which
opposes the model act. The association, a lobby for 470 acutecare hospitals, proposes that patients check into a motel, gym, or
“MASH”-style field infirmary.
Supporters say laws based on the model act would protect
individual liberties better than existing laws. For instance, it
provides court hearings for people improperly quarantined, rather
than relying on writs of habeas corpus or laws against illegal
imprisonment, as do some old state statutes.
“What’s wrong with the current system is that most state laws are
highly antiquated, and predate most of the advances in publichealth sciences and constitutional law in America,” says
Georgetown’s Prof. Gostin. Some states, he says, retain one set
of rules for old diseases like smallpox and plague; another for
polio and tuberculosis; and still another for newer diseases like
West Nile virus.
Broad emergency health powers haven’t been invoked in
America since the hot summer of 1954, when polio put children
into iron lungs, and officials closed off summer camps and
swimming pools. In light of the opposition to the model law, some
CDC officials wonder if today’s Americans are so unused to limits
on their liberty that they won’t tolerate disease-induced
restrictions, even for the greater good.
That possibility worries doctors in the trenches. “The best
intelligence tells us that with bioterror, it’s not a matter of if, but
when,” says Poki Namkung, director of public health for Berkeley,
Calif. “Every drill that has been run has shown people are not
prepared.”
But in New York, Barry Steinhardt, director of the technology and
liberty program of the ACLU’s national office, is relieved most
states are refusing to rush the new bioterror act into law. “The
worst laws,” he warns, “are made in time of emergency.”
Bioterrorism: Civil Liberties Under Quarantine
Is the U.S. Legally Prepared for a Smallpox Epidemic?
/news/specials/response/index.html”>America
Responds
Listen to Daniel Zwerdling’s report on the risks of a
disorganized reponse to a potential smallpox outbreak.
/news/specials/response/”
class=”subnav”>Back to America Responds
main page
Smallpox lesions on a
victim in Bangladesh in
1973, one of last outbreaks
of the disease in the world.
Photo: CDC/James Hicks
Oct. 23, 2001 — As U.S. officials
confront the current anthrax threat,
they must also consider how they
would contain a terrorist-directed
outbreak of highly contagious and
fatal diseases such as smallpox or
the plague.
Public health officials say the
chances of an outbreak might be
small, but they warn that a
disorganized response could
overwhelm law enforcement
agencies and threaten civil liberties. On All Things Considered,
Daniel Zwerdling reports for NPR and American RadioWorks.
Health specialists are turning to history to try to learn how
communities could contain an outbreak of smallpox — one of the
most contagious diseases. Anyone walking within six to nine feet
of an infected person is likely to the contract the disease.
Timeline of an Epidemic
In February 1972, Yugoslavia
is hit with one of the world’s
last serious smallpox
epidemics. Here’s how it
unfolded:
Natural occurrence of
smallpox was eradicated
nearly 25 years ago in a
campaign led by the World
Health Organization. One of
the last major outbreaks hit
Yugoslavia in 1972, and
experts learned some of the
most dramatic lessons about
quarantine there.
• A Muslim pilgrim carries the
deadly virus back from Mecca Smallpox had been absent
— Yugoslavia’s first case since from Yugoslavia for four
1930.
decades when a single case
emerged in 1972. The virus
• Falling ill, the pilgrim is
quickly spread to infect more
rushed to a local hospital
than 150 people. Yugoslavia’s
where he infects a nurse and
authoritarian leader, Tito,
eight other patients.
imposed a sweeping
quarantine, walling off the
• He is transferred to a hospital victims from the rest of the
in Belgrade, where he infects population. Those infected
28 more people, including
were isolated in hospitals,
doctors and nurses.
while another 10,000 people
who had been in contact with
• They infect about 150 others. the victims were vaccinated
• In Tito’s Yugoslavia, the
army is mobilized and martial
law declared.
• Borders are sealed,
unauthorized travel is
forbidden.
• Hotels and apartment houses
are requisitioned and used to
quarantine more than 10,000
people.
• Within two weeks, two
million people are vaccinated;
approximately two months
after the first case, the
epidemic ends.
• By 1980, an effort led by the
World Health Organization
results in the worldwide
eradication of smallpox.
and isolated in hotels. Entire
blocks were cordoned off with
barbed wire and guarded by
police — essentially creating
health prison camps.
America’s leaders are in fact
considering such drastic steps
if an outbreak were to erupt.
Just two weeks before Sept.
11, officials at the Centers for
Disease Control and
Prevention drafted a blueprint
for fighting an outbreak: They
call it the Bioterrorism
Preparedness and Response
project. The CDC document
specifically warns government
leaders that in the event of
such an outbreak, they should
be prepared to take over
private property and impose
quarantines.
Researchers warn the United
States would face many more
hurdles if it tried to impose
such restrictions than Communist Yugoslavia did. When
smallpox hit Muncie, Ind., in 1893, officials tried to quarantine
individual houses. Guards were posted outside the front door of
each house to keep the family in and neighbors out. But the
townspeople refused to have their freedom restricted, and
neighbors simply used the back doors to visit.
Smallpox Fact Sheet
Smallpox first appeared in
epidemic form at least 3,000
years ago and is estimated to
have disfigured hundreds of
millions of people since.
Caused by the variola virus,
the disease is universally
feared as the most devastating
of all contagions. No proven
treatment exists. Most victims
survive, but are left with
visible scars. Nearly 30
percent of cases are fatal.
• Symptoms on average begin
appearing 12 days after
exposure.
As the epidemic spread,
officials set aside an entire
hospital. Some victims refused
to go, using guns to protect
themselves, while others had
their doors knocked in and
were dragged out.
More than 100 years have
passed, but law enforcement
specialists worry that they
would have just as much
trouble controlling panicky
citizens today. Law
enforcement agencies say most
police aren’t trained to deal
with such situations — treating
the sick as prisoners — and
neither are current laws
equipped to deal with the 21st
century war on germs.
• Initial symptoms include
high fever, fatigue, headaches
and backaches.
That’s one of the touchiest
issues: If terrorists did trigger
a contagious outbreak, could
• Two to three days later, a
federal and local officials
rash of flat, red lesions appears contain it and also protect civil
on the face and arms,
liberties? Larry Gostin, a
spreading to the trunk and
lawyer and public health
legs.
specialist at Georgetown
University, says government
• Lesions become pus-filled
officials could hurt America
and begin to crust. Scabs
by overreacting in a panic. But
develop and fall off after three he says it is possible to
to four weeks, leaving pitted
maintain tolerance, fairness
scars.
and due process of the law
during an epidemic.
• Smallpox is spread person to
person by infected saliva
Gostin has drafted a model law
droplets. Those infected are
that all the states could pass to
most contagious during the
help them contain an epidemic
first week of illness.
and protect rights. For
instance, if terrorists triggered
• In 1972, routine vaccination a smallpox outbreak tomorrow,
ended. By 1980, the WHO
officials in many states
declared smallpox eradicated. wouldn’t have the power to
seize private buildings to ease
crowding in hospitals. Under
Gostin’s proposed law, they
could seize private property, but they would have to compensate
the owners fairly.
Researchers do believe that if the government is really prepared
to handle a major outbreak, they might not need such a heavy
hand. Health officials say most people could live nearly normal
lives during an outbreak if the public was alerted to watch for
symptoms and then stay home the instant they saw them — and if
public health officials could keep on top of every potential case.
But, say researchers, most government officials have a lot of
planning to do before they’re ready to handle an epidemic.
In Depth
• Read NPR.org coverage of the anthrax threat.
Other Resources
• Read an assessment of local bioterrorism preparedness efforts,
from the National Association of County and City Health
Officials.
• Read an article on the legal challenges a large-scale
bioterrorism attack would present, from the journal Clinical
Infectious Diseases.
• Read a briefing memo for a July 2001 congressional hearing on
Dark Winter, an exercise designed to simulate a possible U.S.
reaction — including the use of quarantine — in the event of a
bioterrorism attack.
• Read Smallpox: Clinical and Epidemiologic Features, profile
by D.A. Henderson, director of the Johns Hopkins University
Center for Civilian Biodefense Studies.
• Visit the Web site for the Johns Hopkins University Center for
Civilian Biodefense Studies.
• Read the World Health Organization’s statement on the current
threat of smallpox as a bioterrorism weapon.
American RadioWorks is the documentary project of NPR News
and Minnesota Public Radio. Rebecca Davis produced the story.
PREPARE FOR THE WORST: PROTECTING CIVIL LIBERTIES IN
THE MODERN AGE OF BIOTERRORISM
*
Eleanor E. Mayer
I. INTRODUCTION
Americans began hoarding Cipro—a drug that can be used to
treat anthrax—within a month of the 9/11 attacks. As if to confirm
their fears, an anthrax scare gripped the nation in a matter of weeks.
The threat of a bioterrorist attack had been contemplated before, but
it was brought into sharp relief during the anthrax crisis. In part as a
result of the juxtaposition of 9/11 and the anthrax scare, bioterrorism response plans have become a central aspect of emergency preparedness.
This Comment will examine the practical effects of recent developments in bioterrorism response plans. I will argue that states that
have not engaged in a thoughtful modernization of their bioterrorism response laws have left their citizens vulnerable to unconstitutional infringement of their civil liberties in the event of a bioterrorist
attack, and that modernization is long overdue. The bioterrorism response legislation of three states (Minnesota, Mississippi, and Delaware) illuminates the varying relationship of these plans to citizens’
constitutional rights. I examine Delaware and Minnesota law because
the statutes enacted in those states demonstrate different approaches
to modernizing public health emergency laws; I analyze Mississippi
law because it is one of the states that has not updated its laws that authorize public health emergency response. Delaware has largely enacted the Model State Emergency Health Powers Act (“MSEHPA” or
1
“Model Act”), which is discussed below. Minnesota has been noted
*
1
J.D. Candidate, University of Pennsylvania Law School, 2009. I would like to thank Professors Serena Mayeri and Theodore Ruger for their guidance and comments, and the
members of the Journal of Constitutional Law for their editorial assistance. I also wish to
thank my family for their support and encouragement.
MODEL STATE EMERGENCY HEALTH POWERS ACT (2001); CTR. FOR LAW AND THE PUBLIC’S
HEALTH, THE MODEL STATE EMERGENCY HEALTH POWERS ACT (MSEHPA) STATE
LEGISLATIVE ACTIVITY (2006), http://www.publichealthlaw.net/MSEHPA/MSEHPA%20L
eg%20Activity.pdf.
1051
1052
JOURNAL OF CONSTITUTIONAL LAW
[Vol. 11:4
by one of the chief academic critics of the MSEHPA as an example of
how the MSEHPA can be amended to conform with constitutional
2
requirements for the protection of civil liberties. These three states
provide a sample of the forms that such legislation can take and the
impact that public health emergency legislation can have on constitutional rights. My analysis demonstrates that old public health laws
that resemble those of Mississippi are insufficient to protect individuals from governmental encroachment upon their civil liberties in the
event of a public health emergency. The MSEHPA is not ideal, however, and if states enact comprehensive bioterrorism response legislation, they should use the MSEHPA as a template and add provisions
designed to preserve the constitutional rights of the citizenry in the
event of an attack of bioterrorism.
Part II examines the MSEHPA, its implications, and the legal academic response to the Model Act. Parts III and IV examine the right
to procedural due process and the right to personal autonomy in
three different states in terms of the kind of protection afforded (and
not afforded) by bioterrorism response plans with respect to two public health tools: quarantine and mass vaccination. The analysis of
these rights sheds light on the debate regarding the balance between
civil liberties and terrorism response because they are flashpoints—
rights guaranteed by the Constitution that are likely to be threatened
by a poorly executed response to an act of bioterrorism. The effects
of quarantine on procedural due process rights and the effects of the
use of mass vaccination on the right to personal autonomy are key
because quarantine and vaccination are public health tools that are
either currently in use or have been widely used throughout American history to prevent the spread of infectious disease. In addition,
examining the rights within the context of quarantine and vaccination provides an example of the implications of each of the plans.
States that have not taken steps to modernize their laws regarding
state police power with respect to such matters should recognize that
the constitutional rights of their citizens are in jeopardy. While Delaware could adopt more protective measures that would still allow
for effective responses to bioterrorism, the differences between the
Delaware and Minnesota plans are dwarfed by the differences between the two modern plans and Mississippi’s statutory framework
that provides for bioterrorism response. Mississippi lacks nearly all of
2
George J. Annas, Bioterrorism, Public Health, and Human Rights, 21 HEALTH AFF. 94, 96
(2002).
Apr. 2009]
PROTECTING CIVIL LIBERTIES
1053
the protective measures present in the Minnesota or the Delaware
plans. Using the MSEHPA to modernize bioterrorism response law is
a useful starting point, but it can be amended to provide additional
protection for the rights of the citizenry. In the case of public health
measures like quarantine, the likelihood is that no realistic plan is going to be particularly palatable from the perspective of preserving
civil liberties, but if states do implement quarantine, modern statutes
are more likely to hold officials accountable for actions that infringe
upon the civil rights of individuals and to provide protection for citizens’ constitutional rights.
II. THE MODEL STATE EMERGENCY HEALTH POWERS ACT …
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