Bioterrorism and the Law
Association 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
The Face of Bioterrorism
Legal-Political Issues
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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?
Key Problems
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Managing an outbreak
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Investigating the attack if it is
bioterrorism
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The hard problem
Does not require any special laws
Demands effective public health
infrastructure
Preventing bioterrorism
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Laws on control of agents and personnel
Key Questions
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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?
Managing an Outbreak
Does it Matter if it is
Bioterrorism?
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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?
How Much Power do you
Need?
Minimal Threat
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Limited and non-communicable
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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
Significant Threat, Not
Destabilizing
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Broad and non-communicable
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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
Significant Threat, Potentially
Destabilizing
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Limited and communicable
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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
Imminent Threat of
Governmental Destabilization
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Broad and communicable
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Multiple cases of smallpox, multiple
locations
Would demand complete shutdown on
transportation
Would quickly require military
intervention
Local vaccination plans are mostly
unworkable
How Much Power is Available?
Traditional Public Health Powers
Public Health Authority
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Police power
Power to prevent future harm
Not the power to punish for past harm
Pre-Constitutional state powers
Wrapped into the Constitution
How Powerful is the Police
Power?
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Colonies were fever-ridden swamps
Yellow fever almost stopped the
Constitutional Convention
They used quarantine, zones of nonintercourse, seizure and destruction of
goods
Blackstone even talks of death to stop
people from breaking quarantine
What about the Constitution?
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These powers were carried into the
constitution
They have been used many times over
the past 200 years
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Stopping travel for polio
Mandatory vaccination laws
Health Hold Orders
Federal Police Power
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Police power is traditionally a state
power
Scholars debate whether the Federal
government has police power
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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
What about the Courts?
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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
Flexible Response
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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
Is the Threat Real?
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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
Who Decides?
Experts
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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?
Politicians
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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
Judges
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Should have very limited role
Adversarial system does not work well
in a hurry
Can only resolve disputes, not direct a
disaster response
Decline in Public Health
Authority
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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
The Privacy Revolution
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Abortion and Contraception Cases
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Do not affect public health authority
AIDS really undermined public health
power
AIDS and Public Authority
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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
State Law Problems
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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
Model State Emergency Health
Powers Act
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Funded by the Feds
Written by scholars whose career had
been attacking public health laws as
antiquated and unconstitutional
Misunderstands public health authority
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Long and detailed, tries to micromanage
Extensive judicial involvement
Conflicts with existing state laws
Emergency Preparedness
Laws
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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
What Should States Do?
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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
What are the Real Questions?
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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?
Law is Cheap
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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”