Bioterrorism and the Law Association for Politics and the Life Sciences

1. 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@lsu.edu http://biotech.law.lsu.edu

2. The Face of Bioterrorism

3. 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?

4. 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

5. 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?

6. Managing an Outbreak

7. 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?

8. How Much Power do you Need?

9. 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

10. 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

11. 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

12. 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

13. How Much Power is Available? Traditional Public Health Powers

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. Who Decides?

22. 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?

23. 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

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

25. 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

26. The Privacy Revolution • Abortion and Contraception Cases • Do not affect public health authority • AIDS really undermined public health power

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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?

33. 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”