Bioterrorism and the Law Association for Politics and the Life Sciences

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Bioterrorism and the LawAssociation for Politics
and the Life Sciences

• Edward P. Richards
• Director, Program in Law, Science, and Public
  Health
• Harvey A. Peltier Professor of Law
• Paul M. Hebert Law Center
• Louisiana State University
• Baton Rouge, LA 70803-1000
• richards_at_lsu.edu
• http//biotech.law.lsu.edu

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The Face of Bioterrorism
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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?

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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

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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?

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Managing an Outbreak
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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?

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How Much Power do you Need?
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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

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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

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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

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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

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How Much Power is Available?

• Traditional Public Health Powers

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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

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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

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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

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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

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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

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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

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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

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Who Decides?
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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?

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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

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Judges

• Should have very limited role
• Adversarial system does not work well in a hurry
• Can only resolve disputes, not direct a disaster
  response

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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 its
  citizens
• The Court has even eroded criminal due process
  rights
• It is state law that has weakened

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The Privacy Revolution

• Abortion and Contraception Cases
• Do not affect public health authority
• AIDS really undermined public health power

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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

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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

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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

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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

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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

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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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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