Health Threats, and the
Bio-Terror Defense and Civil Liberties
The ‘War on Terror’ in the aftermath of Sept. 11th 2001has resulted in a number of government actions that are controversial for their perceived threat to civil liberties. In the Health arena, the most controversial is the Model State Emergency Health Powers Act (MEHPA), a model law (currently under consideration in a number of states) that is designed to facilitate response to a bio-terror attack. The preamble of the Model Act states “…in the event of the exercise of emergency powers, the civil rights, liberties, and needs of infected or exposed persons will be protected to the fullest extent possible consistent with the primary goal of controlling serious health threats.” Nonetheless, the Model Act has been criticized both by conservatives and liberals for potential violation of civil liberties. In this paper, I propose to examine both the need for emergency health powers legislation, and criticisms of the MEHPA as a model for such legislation.
The key provisions of the Act that are perceived as a threat to civil liberties are these: in circumstances of a health emergency, the Act authorizes the official collection and sharing of an individual’s health information; gives state officials the authority to appropriate and use property (including health care facilities) as necessary for the care and treatment of patients, or for the destruction of contaminated materials; gives state officials the authority to appropriate necessary vaccines and medications to treat infected or exposed individuals; allows forced vaccination, treatment or quarantine of individuals deemed to pose a public health threat; and allows the state to require participation of health care professionals in the treatment and monitoring of infected individuals. All of this is necessary, it is argued, because existing public health laws are obsolete, and inadequate for addressing public health crises that might arise from a bio-terror attack.
Criticism of the MEHPA focus on the violation of civil liberties themselves, as well as on the specific system to be employed in the event of a public health emergency as recommended by the Model Act, as I will discuss below. There can be no question that the powers granted under the Model Act, if adopted, pose a threat to many civil liberties we have come to regard as “rights” in our daily social lives. The issue debated concerns the advisability of legislation that would allow violation of these rights in the event of a public health emergency such as a bio-terror attack. It is my opinion that such legislation is advisable, for two related reasons: First, our political system has long recognized the need to restrict civil liberties when such restriction is necessary to prevent significant harm to the public at large; second, how these liberties should and should not be restricted for the purposes just mentioned should not be left for consideration at the time a public health emergency arises. An outline for restriction of civil liberties should be publicly debated, then recognized through the official sanction of the legislative process. In this context, I believe the restriction of specific civil liberties themselves is justified in circumstances of public health emergencies such as a bio-terror attack.
The Justification of MEHPA
The most basic
justification for restriction of civil liberties in
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
The prominence of this principle can be seen in the way the court struggles to base review of legislation on it. Even legislation that seems straightforwardly paternalistic, such as laws requiring motorcycle helmets or seat belt laws, have been upheld by courts on grounds that Ken Wing describes as “tortured judicial logic.” Describing the numerous decisions concerning both mandatory helmet legislation and seat belt laws (which he describes as generally adopting the same principles and judicial postures), Wing states:
Note, in particular, that with the exception of the Fries decision overturning early helmet legislation, all of these decisions have attempted to characterize this type of legislation as an attempt to protect the public’s – not the affected individual’s – health or welfare.
basic formulation of the Harm Principle illustrates the tension between public
health good and the exercise of individual freedom. This principle holds that individual freedoms
should not be restricted unless the exercise of a person’s freedom poses
a threat of significant harm to other people.
One example of the application of this principle can be seen in the
restrictions that might be placed on the exercise of free speech: this right does not allow one to, for
example, shout “Fire!” in a crowded theater in order to cause a stampede. Application of this idea to public health has
been recognized in several U.S. Supreme Court decisions, most notably the case
should only be employed, however, when necessary to prevent significant public
harm. The health dangers posed by a
bio-terror attack pose such a harm, as I will discuss below. In the context of the Harm Principle, it is
important to recognize that the dangers imposed by refusal of public health
services are not wholly individual.
Vaccination provides a good example: Vaccines are not 100%
effective. The effectiveness of
vaccination programs relies on a concept of “herd immunity,” which holds that
if a high enough percentage of people are immune to a given disease,
even those who do not achieve immunity from vaccination gain protection because
they are unlikely to be exposed to the disease.
Without a very high rate of participation in the program, however, there
will be a percentage of people who have been vaccinated that remain susceptible
to vaccine-preventable diseases in cases of an outbreak. For example, during a measles outbreak in
The relevance of these facts can be clearly seen in the justification of the MEHPA in the context of a bio-terror emergency whose containment or control requires the participation of a large segment of the population. According to MSEHPA author Lawrence Gostin, et al, the justification of the Act relates to the fact that there “may be a need to exercise powers over individuals to avert a significant threat to the public’s health . . . Although the vast majority of people probably will comply willingly (because it is in their interests and/or desirable for the common welfare), some compulsory powers are necessary for those who will not comply. Provided those powers are bounded by legal safeguards, individuals should be required to yield some of their autonomy, liberty, or property to protect the health and security of the community.” Gostin continues: “Compulsory power has always been a part of public health law, because it is sometimes necessary to prevent or ameliorate unacceptable threats to the common good.”
Despite this strong justification clearly grounded in the widely accepted “harm Principle,” criticisms that the MEHPA is too broadly defined may well be correct. As it stands, for example, implementation of the MEHPA is justified if a governor believes that any of the following harms are posed: (i) a large number of deaths in the population; (ii) a large number of serious or long-term disabilities in the affected population; or (iii) widespread exposure to an infectious or toxic agent that poses a significant risk of future harm to a large number of people in the affected population. The third condition, in particular, leaves a lot of latitude for interpretation. Consider one example raised by critics: although the Act is intended to apply in circumstances of immediate urgency like a bio-terror attack, the wording of the third condition (widespread exposure to an infectious agent that poses significant risk of future harm to a large number of people) could be interpreted as allowing implementation of the Act to appropriate and use medical facilities and medications, force treatment, and quarantine individuals to address HIV infection, or even the annual flu epidemics.
The primary concern, here, is that the powers granted under the Act may be abused through the implementation of the Act as an over-reaction to “crises” that do not warrant significant violation of civil liberties. In response to these concerns, Jurist Richard Posner argues:
It will be argued that the lesson of history is that officials habitually exaggerate dangers to the nation’s security. But the lesson of history is the opposite. It is because officials have repeatedly and disastrously underestimated these dangers that our history is as violent as it is.”
points to examples including the Civil War, the Japanese attack on
best estimates of the dangers posed stem from several exercises designed to
simulate how a bio-terror attack would play out. One of these exercises, dubbed “Dark Winter,”
simulated a smallpox attack in
exercise, dubbed “TOPOFF,” simulated a bio-terror attack using plague in
The result of both exercises dramatically underscored the difficulties of containing a bio-terror attack without strong political leadership back by significant legislative powers. Our best estimates, then, call for recognition of a need for strong legislatively recognized authority in times of a bio-terror emergency. The MEHPA is informed by the needs identified in these exercises. It is important that the lessons learned from these exercises not be overlooked.
It is true that when we were surprised and hurt, we tend to overreact – but only with the benefit of hindsight can a reaction be separated into its proper and excess layers. In hindsight we know that interning Japanese-Americans did not shorten World war II. But was this known at the time?
Waiting until a
crisis occurs to outline how civil liberties are restricted in times of
emergency poses a greater danger to civil liberties than any proposed
legislation. Off-the-cuff reaction (and
over-reaction) seldom result in good public policy strategy. One important historical illustration that
decision-making in the context of (perceived or real) crisis is the “Swine Flu
Affair” of 1976. In February 1976, public health officials
discovered at an Army base in
Avoiding reactive decision-making requires that circumstances of “emergency” are clearly outlined, and that clear lines of authority are identified and recognized. The May, 2000 TOPOFF exercise conducted by the Department of Justice is perhaps the clearest to establish a need for advance bio-terror planning in this regard. Chief among the factors identified as obstructing public health efforts was a lack of clarity in lines of authority and questions about decision making authority to impose curfews on the general public and quarantine infected individuals, close city and state borders, triage medical resources, and maintain security at, and access to, healthcare facilities. For example, some individuals and agencies treated state public health agencies as the highest authority, others looked to CDC personnel, while the FBI was perceived as looking to the state Attorney General’s office as the highest authority. The result was a lack of coordination and consistency in approach. Stated one participant: “Decisions made on Saturday were reversed on Sunday, then reversed again on Sunday afternoon,” and another: “Reversing decisions back and forth is the antithesis of crisis management and efficient decision making.”
The MEHPA is designed, above all else, to establish clear lines of authority in times of bio-terror emergencies. The Act outlines procedures for implementation, areas of enforceable powers and the scope of required participation among health professionals, health-related organizations, and the public at large. While the concerns of civil libertarians should be considered in refining the Model Act for use in practice, these concerns should not inhibit the adoption of legislation based on the Model Act. Such legislation is necessary if we are to avoid reactive decision-making in times of crisis, and develop effective procedures for controlling disease outbreak in the event of a bio-terror attack.
 See, generally, THOMAS MAY, BIOETHICS IN A LIBERAL SOCIETY: THE POLITICAL FRAMEWORK OF BIOETHICS DECISION MAKING (Johns Hopkins University Press, 2002).
STUART MILL, ON
 See KENNETH R. WING, THE LAW AND THE PUBLIC’S HEALTH, 3RD EDITION 28 (Health Administration Press, 1990).
 Wing, The Law and the Public’s Health. The majority of courts, according to Wing, have relied on the argument that serious injuries resulting from the failure to wear helmets result in economic burden to the public. In reviewing mandatory motorcycle helmet legislation, however, courts have used other “logic,” including arguments that a failure to wear helmets affects third parties because: a serious motorcycle accident will cause a traffic hazard; society has an interest in maintaining a strong and productive citizenry; and the “well known fact” that cyclists ride near the center of the road and may therefore cross into oncoming traffic if injured.
v. Fries, 42
 Wing, supra note __ at 36, note 3. It should be noted that Fries itself was subsequently overruled by a decision employing the
rationale Wing describes. People v. Kohrig, 113
 Daniel A. Salmon, et al., Health Consequences of Religious and Philosophical Exemptions from Immunization Laws, Individual and Societal Risk of Measles, 282 JAMA 47 (1999).
LO, Sapsin JW, Teret SP, Burris S, Mair JS, Hodge JG Jr, Vernick JS. The
George Annas, “Bioterrorism, Public Health, and Civil Liberties,”
 Posner, Richard A., “Security versus Civil Liberties,” The Atlantic Monthly December, 2001.
 Tara O’Toole, Michael Mair, and Thomas Inglesby, “Shining Light on Dark Winter,” Clinical Infectious Diseases vol. 34 (April, 2002).
 Thomas Inglesby, Rita Grossman, and Tara O’Toole, “A Plague on Your City: Observations from TOPOFF,” Clinical Infectious Diseases, vol. 32 (2001), pp. 436-445.
 Posner, Richard A., “Security versus Civil Liberties.”
 See Richard E. Neustadt and Harvey V. Feinberg, The Swine Flu Affair: Decision-Making on a Slippery Slope (U.S. Department of Health, Education and Welfare, 1978); and Arthur M. Silverstein, Pure and Impure Science: The Swine Flu Affair (Johns Hopkins University Press, 1981).
 See Arthur M. Silverstein, Pure Politics and Impure Science: The Swine Flu Affair (Johns Hopkins University press, 1981); Robin M. Henig, The People’s Health: A Memoir of Public Health and Its Evolution at Harvard (Joseph Henry press, 1996).
 Inglesby, Grossman, and O’Toole, p.443.