Just one week into the swine flu outbreak, health authorities in Baltimore detained 117 passengers on a flight from Cancun. And Texas, Maryland and New York officials closed schools. Although the flu strain isn't an official pandemic yet, state and local officials are already flexing legal muscles — many for the first time.
But escalation to the pandemic stage, say health law experts, could draw officials into truly novel legal situations, such as who can order isolation or quarantine to contain the disease.
A wider swine flu outbreak would test unproven legal frameworks — most less than a decade old — throughout the states and internationally. Government officials would confront a host of issues, ranging from whether negligent emergency health care providers should face civil liability to whether persons detained, even temporarily because of suspected infection, have any due process rights.
And there is still an uncertain relationship between state and federal legal authority. "Here you have swine flu that is a national problem but also a local problem," said health law scholar Peter Jacobson, director of the Center for Law, Ethics, and Health at the University of Michigan. "Can the federal government come in and declare an emergency in Michigan even if the Michigan state public health authorities don't believe the epidemic has spread sufficiently to declare an emergency? What authority does the CDC have in these matters? It's still ambiguous."
If the current outbreak escalates, "We will face every type of legal issue known to infectious disease control," said James G. Hodge Jr., executive director of the Centers for Law and the Public's Health: A Collaborative at Johns Hopkins and Georgetown Universities. "We've prepared very well as a nation since the 9-11 attacks, but nothing substitutes for actually doing it in real time," he said.
The international community already is facing "real time" tests under fledgling rules adopted by the World Health Assembly in 2005 and put into force in 2007, said international law scholar David Fidler, director of the Center on American and Global Security at Indiana University Maurer School of Law — Bloomington. "Because of lessons learned particularly from SARS and avian flu on the global level, people know what legal authorities exist," Fidler said. "But I don't want to paint a rosy picture. We're just at the beginning here. The real test of how national law and international law function in a serious influenza crisis may be yet to come."
NEW POWERS
Shortly after the Sept. 11, 2001, terrorist attacks, the federal government began urging states to update their public health laws. Those laws, said many experts at the time, were antiquated, inconsistent and unlikely to provide the tools that state and local health and law enforcement officials would need to respond to bioterrorism or a pandemic disease.
The Centers for Disease Control and Prevention (CDC) backed the creation of a model emergency health preparedness law which subsequently was drafted by the Centers for Law and the Public's Health in 2001. The model law triggered intense controversy over whether it gave too much power to government officials and too little respect to civil rights and liberties.
The drafters said the model law was designed to give officials the power to act decisively in the event of an attack or outbreak of new diseases. Officials could treat, vaccinate and quarantine individuals on a compulsory basis when there was a threat to the public health. States would have broad emergency powers to confiscate property and facilities, from subways to drug companies. They also insisted that the model law balanced the public health need with respect for individual liberties — a point of continuing dispute by civil liberties groups and some health law scholars.
Despite the controversy, the model law did serve as a catalyst for the states. Since 2001, the Centers' Hodge said, 44 states introduced legislation based on the act and 38 states adopted some parts of it.
"Back in 2001 when we looked at the model law, my advice to the states was, 'This is not really something you're going to use to replace what you have. See if there are things here that you want to include in your laws,'??" said John Thomasian, director of the National Governors Association's Center for Best Practices.
"I think a lot of states have done that," he said. "They reviewed their authorities and enriched them if they were not adequate."
QUARANTINE QUESTIONS
Even though most states have updated their laws, they vary widely on what power is given to state and local officials, particularly in the use of the most controversial tools to stop the spread of infectious diseases — isolation and quarantine, said Michigan's Jacobson. In an ongoing study of the roles of state and federal law in emergency preparedness, Jacobson said, "One state I visited was clearly uncertain about whether local officials could order quarantine and isolation or whether it required the governor declaring a state of emergency. That kind of confusion delays response."
Those states that have not updated their laws will have difficulty dealing with related legal questions about not only who can order isolation and quarantine, but when it can be ordered, where it can be done, and who will be responsible for surveillance, added Hodge. And what kind of due process, such as a hearing, should be provided?
"Due process can be very cumbersome if you have a widespread quarantine order," Jacobson said. "Most states haven't considered the extent to which they may need to provide due process for a group and that could be a problem."
There also are "huge" cross-border legal questions involving the states, according to scholars and practitioners. If Kentucky, for example, has a shortage of physicians during an emergency pandemic, could California doctors come to its aid? Some states have begun to enter agreements about sharing medical facilities and physicians, but there is much opposition in some corners because it opens licensure issues that could undermine a state's licensure system. And states are "all over the map" on rapid credentialing of health professionals in emergencies, said Peter M. Leibold, executive vice president of the American Health Lawyers Association.
Health care providers, he added, also will be concerned about liability and the standard of liability during an emergency. "These providers will be doing something in an emergency they normally don't do — triage," he said. "Is there an alternate standard of care in an emergency? I'm almost certain states have different standards and some haven't even addressed it. That's a crucial question."
MILITARY APPROACHPublic health is still primarily a state responsibility. But in 2006, Congress enacted the Pandemic and All-Hazards Preparedness Act, giving the U.S. Department of Health and Human Services responsibility for improving the nation's response to emergencies. "The Bush administration had a law enforcement-military involvement approach to these emergencies," said health law scholar George Annas of Boston University School of Law. "But the new administration so far is not following that playbook at all. They're not calling for police involvement, quarantine, and not even mentioning the military."
One of the problems with the Bush approach was "suspension of civil liberties was seen as a component of disease prevention rather than last resort," said Tania Simoncelli of the American Civil Liberties Union's Technology & Liberty Program. She said the ACLU was just now "getting back up to speed" on these issues and would be watching closely federal and state responses if swine flu escalates to a pandemic.
On the international front, legal questions already have arisen, said Indiana's Fidler, noting issues about recent bans on pork imports from parts of the United States as well as calls for restrictions on travel to this country. "International legal rules, international health regulations and [World Trade Organization] agreements require countries to base restrictions on scientific evidence, scientific principles and risk assessment," Fidler said. "There is no evidence pork products transmit this flu strain, and no justification for the travel restrictions."
Overall, Fidler said, "real progress" has been made in determining the role of law in these types of emergencies.
"People have a higher awareness of where the legal authorities are, what they mean and the triggering actions. But legally, there's the question of when you exercise those authorities, will you do so in a way that both protects health and respects as much as possible civil liberties. We're not there yet."
Marcia Coyle can be contacted at marcia.coyle@incisivemedia.com.
