bioterrorism and the law association for politics and the life sciences edward p. richards director,...
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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
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?
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?
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
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
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?
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