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Fighting H1N1: Why Laws are Not the Answer

JURIST Guest Columnist Ed Richards of Louisiana State University Law Center says that in the midst of current concerns about the spread of the H1N1 virus (popularly known as "swine flu"), passing more and stricter public health laws will neither strengthen the public health system nor effectively contain the spread of disease...


As this is being written, H1N1 is not a major threat, but this could change as the epidemic evolves. I want to look past the H1N1 outbreak and focus attention on what we will carry away from it, however it evolves. I am concerned because crisis-driven policy is easy to hijack, resulting in laws with horrible unintended consequences. Over the past four decades, public health crises have generated more than their share of bad laws. Some only create false expectations, but others have lead to great suffering and even death. I hope forewarned is forearmed for H1N1.

Do We Need More Law?

It is not law per se that I worry about. I am quite supportive of public health law as expressed through administrative regulations and the broad exercise of the police powers. While public health depends primarily on voluntary cooperation, state public health agencies and the federal government have tremendous powers to deal with a public health crisis. The United States entered the 1970s with a public health system that had nearly tripled life expectancy over the past 100 years through sanitation, which had nearly wiped out the worst of the communicable diseases in the U.S., and which was immunizing a sizable part of the population against seasonal flu. All this, including the quarantine of individuals and whole regions, had been managed through general grants of legislative power and administrative regulations. This framework has not been declared unconstitutional and as classic administrative law, there is no reason to think the United States Supreme Court would stop deferring to agency action in public health when it supports agency deference in all other areas of administrative law.

The Interest Groups

What I worry about are statutes, i.e., specific public health policies passed into statutes to please interest groups. From quarantining people who are coughing to taxing fat people, pushing for public health statutes has become the rage at the CDC, federal and state legislatures, and private foundations. These are driven by traditional interest groups, such as employers worried about health care costs, drug companies, military contractors who want to sell bioterrorism monitors, and federal officials in recent administrations who wanted to extend the national security state.

The last decade has seen a new interest group arise: contract researchers operating out of universities who live on grant funds to write new laws. No matter the problem, their solution is a new law, because they make no money if they admit that the problem is just that public health agencies do not have the staff to do a job because they are broke, or that there is no problem at all. Expect to see these groups calling for massive new public health powers to deal with H1N1, claiming that public health agencies and the federal government lack key powers. As noted below, public health emergencies are fully integrated into our national security laws, allowing the federal government essentially unlimited powers if it chooses to use them. Perhaps the only real limit is that since President Obama repudiated the torture memos, the torture of potential disease carriers is now off limits.

Untended Consequences - The Road to Hell

Concerns with the public health consequences of illegal drug use in the 1960s led to Nixon's war on drugs and Rockefeller's draconian drug laws, which spread across the United States. These laws have had profound unintended consequences and seem to slip the mind of public health law scholars who tout the value of new public health statutes. In the 1980s, civil libertarians lobbied state legislatures and Congress to protect persons with AIDS. The result was to make it nearly impossible to do public health screening and case finding for HIV infection. This exacerbated the AIDS epidemic and was only reversed as a matter of federal policy in 2006. Many states still have laws in place that limit disease control efforts for HIV. (In several states, the entire disease control code was revised, undermining the control of tuberculosis and other diseases. These laws had to be revised again as tuberculosis surged in the 1990s.)

Post 9/11 and the anthrax letters, fears of bioterrorism lead the CDC to develop the Model State Emergency Health Powers Act and push states to adopt it. This was criticized by many public law scholars for being a dangerous intrusion into civil liberties and probably also unworkable. More fundamentally, if you are versed in national security law, you know that the push for public health emergency powers laws at the state and federal level were derived from the Bush/Cheney vision of the seamless national security state. Taken with the Patriot Act and other national security laws, public health and safety emergencies have been recharacterized as national security threats, which creates paths for the use of the military in domestic policing and the overruling of state public health authority by the federal government.

The real problem with all of these laws is that the problems they address are not problems of legal authority. They do nothing to address the loss of resources and expertise from health departments, and the weakness of political leaders when facing difficult choices. We have created a system of Potemkin laws whose real purpose is to allow legislatures to claim to have done something about public health emergencies without spending the money or political capital to address the weakness in the public health and medical care system. Look how well these laws worked for Hurricane Katrina. Louisiana had passed stacks of emergency powers laws after 9/11, had done all the federal planning exercises, yet was completely unprepared for Hurricane Katrina because that would have required spending money and admitting that New Orleans could flood. Yet Katrina spawned another deluge of federal and state emergency powers laws, passed as states continued to cut their already inadequate health department budgets.

What We Did Not Learn From SARS

The most recent failure, and the one most on point with H1N1, was the reaction to the 2003 SARS outbreak. Canada appointed a royal commission to study and make recommendations about the lessons learned from SARS. The commission published an excellent set of reports on all aspects of the SARS epidemic and the government's response. The commission was clear: strategies such as social distancing, not going to work sick, and voluntary isolation can work only if the affected individuals are supported by the employers and the government. Individuals must have paid sick leave, worker's compensation must cover workplace acquired infection, there must be health insurance coverage for personally acquired illness, and employers and others institutions must workout the details of mandatory immunization programs with unions and workers before there is an outbreak.

The Canadians found little or no role for coercion, but a critical role for the government and employers to provide support to allow individuals to stay home without loss of income and with adequate medical care and food. The response in the United States was to pass even more quarantine laws, to provide bench books to judges on how to enforce those laws, and to encourage local law enforcement to think about their rules of engagement when enforcing quarantine - do you shoot the soccer mom fleeing with the minivan full of children?

There have been no provisions for the nearly half of workers without paid sick leave, for workers with infected family members who will lose pay if they stay home, for health care for the uninsured. The huge population of undocumented aliens and the legal and illegal underground economy have been ignored, yet we know those who participate in the underground economy are not likely to honor snow days and other social distancing strategies because they do not eat if they do not work.

What Will We Not Learn From H1N1?

The best outcome for H1N1 is that we have relatively few cases and deaths, we will develop a vaccine over the summer, we will conduct an orderly vaccination program in the fall, and H1N1 will become just one virus on the list we consider for each seasonal flu vaccine. (For perspective, remember that yearly flu outbreak results in a few million cases and 10-20,000 deaths, with no great disruption in life and the economy.) We will look back and realize that it would have been nice to have more epidemiologists in the states with cases, and the states and the federal government will increase funding and job protections for expert staff at health departments.

More likely, whatever the outcome of H1N1, the result will be more laws benefiting more interest groups and politicians' reelection campaigns, and no long-term support for the public health system.


Edward P. Richards III is Harvey A. Peltier Professor of Law at the Louisiana State University and Director of the Program in Law, Science, and Public Health.

May 02, 2009


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Comments:

I find a good deal to agree with in Prof. Richards' column, but I fear that he paints with too broad a brush.

Prof. Richards is of course correct that crises, and associated panic (of the sort promoted by the nonstop cable news outlets competing for viewers, properly lambasted on the Daily Show), tend to result in ill-considered emergency legislation (think PATRIOT Act in another context), often with unforeseen negative consequences (or carefully plotted ones for which the emergency provides a pretext: think PATRIOT Act). Often proper enforcement of pre-existing laws and regulations, coupled with adequate resources, would be far more effective in preventing or mitigating crises than emergency legislation will do in reacting to them (think banking and securities laws and regulations in our current financial meltdown).
Finally,sensitive facilitation of desirable private actions can constitute far sounder public policy than punitive and coercive measures, as Prof. Richards' comparison of Canadian and American responses nicely illustrates. So far, so good.

But I am not so convinced by other aspects of Professor Richards' catalog. Did our punitive and self-defeating war on drugs really result from, and remain in place because of, classical public health concerns--or does this reflect certain puritanical tendencies deep in American culture (think Prohibition) and the interests of the law enforcement-prison-industrial state? For many years, public health authorities have promoted a harm minimization strategy that has thus far had minimal impact on deconstructing the war on drugs (even recreational drugs posing relatively minor risks to public health)--although perhaps a moment of at least minor reform may be approaching. To be sure, the picture is not entirely uniform; the hysteria in the early days of crack cocaine, and the rush to impose severe penalties disproportinate to penalties on powder, did result in part from public health concerns, and did result in starkly different law enforcement responses on users in minority communities than for the economic elites able to afford their drugs of choice.

The AIDS example is also more complex, involving challenging conflicting approaches and priorities between medical confidentiality and protection of civil rights for those known to be afflicted. From this distance, one can reasonably argue that we did not get the balance right in real time, and that a different balance might have don e a better job of reconciling civil rights with disease prevention. But the fact that laws were eventually modified is not in itself conclusive; as scientific knowledge improved, hysteria diminished, civil rights protections were solidified (at least in some respects), the disease became more treatable, and HIV-infected individuals became less isolated and stigmatized, circumstances changed and the appropriate legal adjustments could follow--not least because the problems sought to be addressed had changed.

This highlights what I hope may be another area of potential agreement. Crises makes it easier to rush legislative changes through--including those that are ill-considered. It is often--certainly sometimes-- the case that thoughtful and well-considered legislative or regulatory approaches have been prepared in calmer times, but cannot achieve the political support or momentum necessary for enactment in the absence of a crisis. Not all law is bad, although we can probably identify some of the circumstances conducive to better, or less well considered, legislative or regulatory proposals. We need to do better in that dimension, although I am not convinced we have figured out just how to accomplish that.

We have become in increasingly aware of the global nature of many emerging health threats, and of marked disparities in the capacities of different societies to respond in open, timely, and appropriately resourced fashion. For all the difficulties in the American system of federalism and divided control over health matters, the problems at the international level are far more formidable. Whether law is the best instrument here is yet to be determined. Perhaps Professor Richards will address that aspect of the issue in a future posting; I look forward to hearing his thoughts.

Alan Jay Weisbard
Associate Professor (retired) of Law and of Medical History and Bioethics, University of Wisconsin Schools of Law and of Medicine and Public Health, and former Executive Director, NJ Bioethics Commission

May 02, 2009  

Kudos on Professor Richards' Jurist piece, and agreement that additional laws are not (necessarily) the answer to fighting H1N1 ... although not so long ago, the Executive and Legislative branches were of a different mind on that!

The John M. Warner Defense Authorization Act (JMWDAA) of 2007 had amended Title 10, section 333 such that it added considerable Executive authority with respect to interference with State and Federal law: "(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES, reading as follows:.—
(1) The President may employ the armed forces, including the National Guard in Federal service, to—
(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition ..."

See, e.g., Govern, "Making Martial Law Easier" in the U.S. (c), The Homeland Security Review Vol. 1, No. 3 (Fall 2007), at 221-229.

Those changes in legal authority to deal with anticipated public health emergencies - amongst other contingencies - were repealed in their entirety by HR 4986: National Defense Authorization Act for Fiscal Year 2008 (full text available online or download as PDF at http://www.govtrack.us/congress/billtext.xpd?bill=h110-4986).

Very Respectfully,

Kevin H. Govern
Assistant Professor of Law
Ave Maria School of Law
and
Instructor, Law & Public Policy
California University of Pennsylvania

May 03, 2009  


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