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Last Updated

04 Nov 2002

Source: Wall Street Journal, May 17, 2002.


Civil-Liberties Issues Check Plans to Fight Bioterrorism


What would happen if another bioterrorist struck the U.S.?

Probably the same confusion, fear and uncoordinated response that happened during last fall's anthrax attacks. Federal and state plans to respond to bioterrorism have run up against civil libertarians and a host of others who worry their rights will be trampled. Even some hospital groups have fought against plans for bioterror attacks because they don't want contagious patients in their facilities.

Just seven months ago, when anthrax was killing people and closing parts of the U.S. Postal Service and Washington D.C., nothing seemed more important than preparing for bioterror. A model law, drafted at the request of the Centers for Disease Control and Prevention, was rushed to state governments last fall to help their governors and public-health departments strengthen their quarantine powers to deal with a newer, larger and more dangerous bioterror attack with a contagious disease such as smallpox.

But proposed legislation based on the model law was struck down in states including Idaho, Nebraska, Wyoming and Wisconsin and died in committee in Mississippi and Washington state. Groups ranging from the liberal American Civil Liberties Union to the conservative American Legislative Exchange Council decried what they saw as sweeping infringements of personal liberties. Although 11 states have passed some version of the act, it appears in many states the laws will be delayed or significantly diluted in scope, if implemented at all.

In the meantime, the nation remains vulnerable to bioterror, public-health officials and bill supporters say ruefully. Lawrence Gostin, a law professor at Georgetown University in Washington and one of the authors of the model law, calls opponents "ostriches with their heads in the sand."

The Model Emergency Health Powers Act, was intended to be a template for state laws around the country. It allowed state governors 30 days of emergency power, with the right to quarantine, isolate, test, treat and vaccinate people. People refusing to be treated or vaccinated could be put into quarantine. It also allowed officials to take over hospitals and pharmacies during an emergency, allocate drugs and vaccines, and even ration food and fuel. It further permitted the state to close, evacuate and, when necessary, destroy contaminated property. People seeking release from quarantine were provided court hearings, as well as compensation for property seized under the law.

The latest setback for the law's proponents came in California, where a sweeping Emergency Health Powers Act was gutted in a legislative committee and sent back for study. According to a glum Keith Richman, a physician and the Republican state legislator who introduced the legislation, "My bill is dead."

An autopsy of the California bill illustrates how far apart the two sides are.

The American Civil Liberties Union of California blasted the model act for having too broad a definition of bioterror emergency, and too narrow a set of safeguards for due process, medical privacy, and religious objections to procedures like cremation, spokeswoman Valerie Small Navarro says.

Also opposing the bill was the American Legislative Exchange Council, a free-market advocacy group. Sandy Liddy Bourne, a council official, said the proposed bill "puts a stranglehold on our civil liberties." She charged the act constituted an unwarranted expansion of state public-health powers and warned it would lead to declarations of quarantine "on the vague definition of a biological threat."

Some groups, including the Association of American Physicians and Surgeons, a conservative medical lobby, objected to the law's provisions for compulsory shots in an emergency. "Our group is against forcing vaccination on people," says Jane Orient, a Tucson doctor and executive director of the group, which lobbied statehouses from Albany to Sacramento conjuring images of forced treatment at gunpoint.

Measures to limit the spread of deadly contagious disease by temporary isolation of the sick also provoked opposition. The Capitol Resource Institute, a nonprofit family-advocacy group based in Sacramento, rejects any bill that might separate families.

Hospital quarantine of people with a disease such as smallpox is another flashpoint. "At a hospital, unless you empty out quickly, you risk exposing a lot of innocent people," says Jan Emerson, spokeswoman for the California Healthcare Association, which opposes the model act. The association, a lobby for 470 acute-care hospitals, proposes that patients check into a motel, gym, or "MASH"-style field infirmary.

Supporters say laws based on the model act would protect individual liberties better than existing laws. For instance, it provides court hearings for people improperly quarantined, rather than relying on writs of habeas corpus or laws against illegal imprisonment, as do some old state statutes.

"What's wrong with the current system is that most state laws are highly antiquated, and predate most of the advances in public-health sciences and constitutional law in America," says Georgetown's Prof. Gostin. Some states, he says, retain one set of rules for old diseases like smallpox and plague; another for polio and tuberculosis; and still another for newer diseases like West Nile virus.

Broad emergency health powers haven't been invoked in America since the hot summer of 1954, when polio put children into iron lungs, and officials closed off summer camps and swimming pools. In light of the opposition to the model law, some CDC officials wonder if today's Americans are so unused to limits on their liberty that they won't tolerate disease-induced restrictions, even for the greater good.

That possibility worries doctors in the trenches. "The best intelligence tells us that with bioterror, it's not a matter of if, but when," says Poki Namkung, director of public health for Berkeley, Calif. "Every drill that has been run has shown people are not prepared."

But in New York, Barry Steinhardt, director of the technology and liberty program of the ACLU's national office, is relieved most states are refusing to rush the new bioterror act into law. "The worst laws," he warns, "are made in time of emergency."