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Last Updated

23 Apr 2003

Source: USA Today, April 23, 2003

Quarantine laws being updated

By Toni Locy, USA TODAY

Growing fears of biological or chemical attacks by terrorists have led 14 states and the District of Columbia to update antiquated quarantine laws that allow governments to confine people against their will during a health crisis.

In revising laws that in some cases are up to 200 years old, states are recognizing the litigious nature of modern America. They are creating ways to appeal quarantine orders and are granting legal immunity to local officials, doctors and others who could be pressed into government service in a crisis.

Similar proposals are pending in 12 other states as officials grapple with fear of retaliation against the USA over the war with Iraq and frequent warnings by the Bush administration that al-Qaeda terrorists could use smallpox, bubonic plague or radioactive "dirty bombs" to attack the nation.

State and local officials who would be on the front lines have had to consider scenarios that were unthinkable before Sept. 11, 2001: widespread panic, the spread of disease and disruption of governments.

"If (an attack) were to hit a state that had not done the planning, it's the population that will suffer," says James Hodge, deputy director of the Center for Law and the Public's Health at Johns Hopkins University in Baltimore.

Legislators from Hawaii to New Hampshire have revamped public health laws with little debate. That troubles civil libertarians and conservatives alike, who say the new quarantine laws give too much power to state and local health officials after a governor, in most cases, declares an emergency.

Even some proponents worry that a crisis requiring a quarantine could expose weaknesses in the public health system, which varies in quality not just from state to state but from county to county. Local health officials, particularly in rural areas, often are political appointees who may not be qualified to assess the health risks of a biological, chemical or radiological attack.

States are responsible for regulating public health, but the president can order a quarantine if there is danger that disease could spread across state lines. President Bush recently added severe acute respiratory syndrome (SARS), the mysterious illness that began in China, to the list of diseases for which a quarantine could be ordered by the U.S. government.

Many state and local officials assume that federal agencies such as the FBI and the Centers for Disease Control and Prevention would take charge after an attack or after an outbreak of an infectious disease such as SARS. But in the critical first hours, state and local officials probably would make key decisions on medical responses, quarantines and other matters.

Supporters of the new laws say that spelling out government powers and the public's rights should limit confusion in a crisis. "The real risk is not reforming these laws," says Lawrence Gostin, director of the Center for Law and the Public's Health at Georgetown University's law school in Washington, D.C.

'By the least restrictive means'

The new laws were based on suggestions that Gostin, Hodge and others at their schools made for the CDC to propose to states.

Under the laws, public health officials must notify the people they want to quarantine and seek a court order if there is time to do so. But if a delay could result in the spread of a disease, officials could confine people without prior approval. In such instances, public health officials would have to seek after-the-fact approval from a judge. Courts would conduct periodic reviews to determine whether quarantines were still necessary.

The laws' proponents say health officials likely would seek voluntary compliance and would defer to police if people refused to comply. People could be asked to stay home or go to another location.

Most of the new laws say that people under quarantine must receive food and proper medical care, and that their confinement must be "by the least restrictive means." Timely hearings would be required for people who challenged quarantine orders or conditions of their confinement. While their petitions were pending, they would remain under quarantine.

In some states, people could join their children or spouses in a quarantine after they agreed not to sue the government if they got sick. Quarantined people also would have access to lawyers appointed by courts. New Mexico would allow quarantined residents to have access to the media.

Quarantined areas could house people who didn't show signs of sickness but refused treatment. Minnesota is among the states that provide limited exceptions for Christian Scientists and others who would object to vaccinations based on religious, health or other reasons. As a precaution, they probably would be confined.

Critics say the provision is coercive because people likely would agree to take unwanted vaccines to avoid being quarantined and separated from family members.

During a crisis, proponents of the new laws say, public health officials need to be able to make decisions without fear of being sued. In several states, such officials would be immune from lawsuits unless they act with "gross negligence or willful misconduct."

"If you are doing the government's work, the government needs to protect you," says John Wheeler, chief counsel to New Mexico's public safety department.

But George Annas, chairman of the health law department at Boston University's School of Public Health, says the immunity provisions remove accountability. "If public health officials are forcing people to take vaccines they don't want to take and it kills them or they develop a health problem, they or their families should be able to sue," he says. "Under these statutes, you can't touch" officials.

Supporters say the laws reflect the long-established principle that during a crisis, the common good trumps individual rights. "Public health is one of those areas where we owe a little bit back from our individual liberties," Hodge says.

Quarantines rooted in history

"The Lord said to Moses and Aaron, 'If some of the people notice a swelling or a rash or a shiny patch on their skin ... Then he shall be brought unto Aaron ... And the priest shall look on him the seventh day... And if the priest sees that, behold, the scab spreadeth ... It is leprosy.' " Leviticus 13:1-8

References to quarantines appear throughout history, from the Old Testament's instructions on confining lepers to the Crusades from 1000 to the 1500s, when ships were isolated in European harbors for weeks before passengers could disembark because of fear of plague.

From the 1600s to the 1900s, quarantines were imposed across America, as some towns were wiped out by smallpox and other diseases. Smallpox killed thousands of Native Americans in the 1800s; 500,000 people died from influenza in 1918-19.

Reflecting the fears of the day, the U.S. Supreme Court allowed local governments to fine people who refused treatment, ruling in 1905 that "society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy."

Advances in science and sanitation cleansed the nation of such diseases; today most Americans have never seen a government response to an outbreak of a deadly disease.

"We've forgotten a very important tradition in America of community health and safety," Gostin says. "We have reverted to a rigid, inflexible idea of personal autonomy at any cost."

Quarantines have led to violence when people believed that authorities acted unfairly. In 1893, several public health officials were shot in Muncie, Ind., during a quarantine after a smallpox outbreak.

In 1900, San Francisco officials randomly quarantined 15,000 people in Chinatown, saying they suspected an outbreak of bubonic plague. A California court ended the quarantine, saying it was discriminatory and based on false information.

Supporters say the new laws are designed to avoid similar episodes in the future. But critics worry that local officials won't be able to resist using such broad powers.

"Under the laws that we've passed, we can throw people in quarantine without (their) seeing a judge or a doctor," says Colin Bonini, a Republican state senator in Delaware, which revised its public health laws last year. "Are those things going to happen? Probably not. But we should not codify our ability to do so. It sets a very dangerous precedent."

States began updating their public health laws after the anthrax attacks on the East Coast during the fall of 2001 killed five people and prompted thousands of postal workers and Capitol Hill staffers to line up for antibiotics.

"There was enormous pressure to pass something," says John Hawkins, a Republican state senator in South Carolina, which updated its public health laws last year. "Everybody in the General Assembly was saying, 'We need to do something.' "

But Annas says the changes are unnecessary because people will cooperate with government in a crisis. "The problem is not going to be forcing them to take medication ... (it's) going to be making sure there's an adequate drug supply."

Civil libertarians and conservative groups such as the Eagle Forum have opposed the new laws because of the emergency powers given to little-known state and local officials. They worry that politically appointed public health officials who often are not doctors could be swayed into ordering mass quarantines or vaccinations with unproven medicines.

"Some public health officials are of varying levels of competence, to put it charitably," says Jane Orient, head of the Association of American Physicians and Surgeons.

Annas says that's why the U.S. government, not the states, should take charge in a crisis. "Bioterrorism is a federal issue," he says. "The FBI, CDC and other federal agencies will be making the decisions."

Orient is concerned that local officials might not distinguish between those who should be placed in "isolation" and those who should be quarantined.

Isolation areas are for people who show signs of infection. Quarantines are for those who might have been exposed to see whether they show symptoms. If the groups are mixed, Orient says, disease could spread to the uninfected.

Gostin agrees that the nation's public health system is "a mess." It "has antiquated laboratories, antiquated (disease) surveillance systems, antiquated data systems and an insufficiently trained workforce," he says.

But state and federal officials realize that, Gostin says. Last year, states and hospitals received about $1 billion in federal bioterrorism grants that did not exist before the Sept. 11 attacks.

Florida: 'Trust us'

When Bob Stevens (case 5), 63, a photo editor in Boca Raton, died of inhalation anthrax in October 2001, Florida became the site of the nation's first biological attack.

As the FBI and CDC searched for clues, there was little opposition in Tallahassee to revising state public health laws. Critics say the result is the harshest such law in the nation, appearing to allow forced vaccinations regardless of religious, medical or other objections.

To try to ease concerns, state officials have adopted a "trust us" attitude, promising to use the broad powers only in a crisis, says Larry Spalding, the ACLU legislative staff counsel in Tallahassee. "I hope ... they mean what they say."

Florida's law could pose a problem for Christian Scientists, who believe in the power of prayer to heal. In some states, they could refuse treatment. But they likely would wind up in a quarantine.

The new laws' success depends heavily on courts to maintain order. But after an attack, Annas says, "where are you going to get not just a lawyer but a judge?"

Hodge says states have been slow to plan for situations in which judges and lawyers could not leave their homes or would have fled. He says states should explore the use of video-conferencing if courthouses are destroyed or uninhabitable. Or, he says, they should arrange to borrow judges from nearby counties or states to oversee quarantine orders.

Pennsylvania state Sen. Jane Orie, a Pittsburgh Republican, worries that her state hasn't acted more quickly to revise its public health laws.

"If something does hit," she says, "you are not going to have time to plan."