Bioterrorism and the LawAssociation for Politics and the Life Sciences

Edward P. RichardsDirector, Program in Law, Science, and Public

HealthHarvey A. Peltier Professor of Law

Paul M. Hebert Law CenterLouisiana State University

Baton Rouge, LA 70803-1000richards@lsu.edu

http://biotech.law.lsu.edu

The Face of Bioterrorism

Legal-Political Issues Does bioterrorism demand new laws? Can bioterrorism be managed within

the existing legal framework? Which protects public health and

individual rights more effectively? Has law been used as a subterfuge for

really addressing bioterrorism preparedness?

Key Problems Managing an outbreak

The hard problem Investigating the attack if it is

bioterrorism Does not require any special laws Demands effective public health

infrastructure Preventing bioterrorism

Laws on control of agents and personnel

Key Questions Do you have enough power to

manage outbreaks? Do you have enough power to

investigate incidents? Do you have enough power to

prevent incidents? Do you have too much power for

your own good?

Managing an Outbreak

Does it Matter if it is Bioterrorism? Is it a conventional agent? How does it effect the epidemiology? With allowances for these factors, the

public health issues are the same for natural outbreaks and bioterrorism

The law enforcement involvement will be very different

Is this the right approach?

How Much Power do you Need?

Minimal Threat Limited and non-communicable

Anthrax Letters Scary, but very small risk to a

small number of people Gross Overreaction in Government

Office Buildings Huge Costs dealing with copycats No special legal problems

Significant Threat, Not Destabilizing Broad and non-communicable

Anthrax from a crop duster over a major city

Could be managed with massive, immediate antibiotic administration and management of causalities

Panic will quickly become the core problem

Significant Threat, Potentially Destabilizing Limited and communicable

A few cases of smallpox in one place Demands fast action If it spreads it can undermine

public order Probably controllable, but with

significant vaccine related causalities

Imminent Threat of Governmental Destabilization Broad and communicable

Multiple cases of smallpox, multiple locations

Would demand complete shutdown on transportation

Would quickly require military intervention

Local vaccination plans are mostly unworkable

How Much Power is Available?

Traditional Public Health Powers

Public Health Authority

Police power Power to prevent future harm Not the power to punish for past

harm Pre-Constitutional state powers Wrapped into the Constitution

How Powerful is the Police Power? Colonies were fever-ridden swamps Yellow fever almost stopped the

Constitutional Convention They used quarantine, zones of non-

intercourse, seizure and destruction of goods

Blackstone even talks of death to stop people from breaking quarantine

What about the Constitution?

These powers were carried into the constitution

They have been used many times over the past 200 years Stopping travel for polio Mandatory vaccination laws Health Hold Orders

Federal Police Power Police power is traditionally a state

power Scholars debate whether the

Federal government has police power Not an issue if foreign attacks or

interstate commerce is an issue CDC does not come in without a state

invitation Irrelevant in an emergency

What about the Courts?

Treated as administrative law As long as the statute is

sufficiently broad, the courts will defer to the agency's authority if necessary to protect the public health

The greater the risk, the greater the deference and flexibility

Flexible Response

Courts have never stood in the way of actions to manage imminent health threats

Individual rights give way to community rights when the threat is serious and imminent

Courts are political institutions and do not want to be seen as harming society

Is the Threat Real?

The real question is how to determine how serious and imminent the threat

Korematsu is Still Good Law Korematsu is and was a bad

political decision

Who Decides?

Experts

Are there experts? Is there enough information? What is the uncertainty? Do the experts have the authority? Do they have the courage? Are they too worried about legal

and political consequences?

Politicians

Ultimately responsible Must act in the face of uncertainty Should appoint proper experts to

assure they have good advice Usually confuse political

expediency with expertise

Judges

Should have very limited role Adversarial system does not work

well in a hurry Can only resolve disputes, not

direct a disaster response

Decline in Public Health Authority The United States Supreme Court

has never wavered Earliest cases to the most recent

cases uphold the right of the state to protect itself and it’s citizens

The Court has even eroded criminal due process rights

It is state law that has weakened

The Privacy Revolution

Abortion and Contraception Cases Do not affect public health authority

AIDS really undermined public health power

AIDS and Public Authority Pressure to allow people to hide

communicable disease status Communicable disease control shifted

from the state to the individual Fine for educated, empowered white

men Deadly for minorities and poor women HIV rates in cities look like Africa

State Law Problems

Many states weakened their traditional public health laws

Makes it more difficult to respond to emergencies

Can force judges to rule against disease control measures that are valid under the Constitution

Model State Emergency Health Powers Act Funded by the Feds Written by scholars whose career had

been attacking public health laws as antiquated and unconstitutional

Misunderstands public health authority Long and detailed, tries to micromanage Extensive judicial involvement

Conflicts with existing state laws

Emergency Preparedness Laws All states responded to a federal

mandate in the 1990s to pass comprehensive emergency preparedness laws

Allowed NY to handle 9/11 with no legal problems

Could be used for bioterrorism with a little tuning of weakened public health laws

What Should States Do?

Recognize that the problem is not legal

Fix weakened public health laws Leave the government flexibility in

crises Address tort law fears that limit

private actions

What are the Real Questions?

Do you have enough people with the right expertise?

Do you have enough supplies? Do you have working relationships

with all the necessary agencies? Do you have leaders with courage

and knowledge?

Law is Cheap

Congress and the states have addressed bioterrorism by passing laws

Critical public health and even public safety agencies have seen their budgets cut

Federal moneys go for “whistles and sirens”