Quarantine Law Revision:
A Danger to the Public Health
Edward P Richards, JD, MPH
Director, Program in Law Science and Public Health
Professor of Law
LSU Law Center
http://biotech.law.lsu.edu/cphl/slides/cdc-2005-quarantine.htm
The Legislature as Factory




The media, and too many legislators, see the
legislature as a factory
They measure their output in laws
They pass laws to deal with media or lobbyist
driven issues
Little regard to whether the issue is real or the law
will make things better
Reasons to Revise Emergency Quarantine
Laws





Not enough authority to take emergency action
Old laws are now unconstitutional
No coordination between state agencies
Civil libertarians want to limit the powers of the
health department
Plaintiff’s lawyers want to be able to sue in the
aftermath of a disaster
Not enough authority to take emergency
action


Every state had these powers at least as late as
1970
 Many used them into the 1950s, with polio
being the last example
 Almost all had used them earlier
Classic police powers, unless you gave them
away
Old laws are now unconstitutional



No court has declared
emergency public health
powers unconstitutional
This court is not going to
be the first
No judge will stand in the
way of emergency actions
under the police powers
No coordination between state agencies



This is more of a political issue than a legal issue
All states passed comprehensive emergency
preparedness laws in the 1990s to comply with
federal mandate
At most, a few technical additions to these laws
were all that was necessary to solve the agency
coordination issue
Civil libertarians want to limit the powers
of the health department



Since the 1980s, there has been a push by civil
libertarians of all stripes, not just AIDS activists,
to limit the power of the health departments
Since no one lobbies for public health powers,
some legislatures gutted their public health
powers in the 1980s because it was the path of
least resistance
Just like fluoridation in many states
Plaintiff’s lawyers want to be able to sue
in the aftermath of a disaster




Plaintiff’s lawyers are the enforcement arm of
public health law restrictions
Most public health law revisions create more
opportunities to sue the agency
The Model Act is loaded with litigation gotcha’s
This is called "Making the Agency More
Responsible"
What should an emergency powers law
look like?





DO WHATEVER YOU NEED TO DO TO PROTECT
THE PUBLIC HEALTH
THE GOVERNOR WILL MAKE SURE THE OTHER
AGENCIES HELP
USE YOUR DISCRETION
PASS ADMINISTRATIVE REGULATIONS IF
NEEDED
TELL US WHAT WE NEED TO DO AHEAD OF TIME
Anything Else Will Just Cause Trouble
What About Agency Responsibility?


You cannot cure incompetence with law, you have
to appoint better people
If you do not trust the governor, elect a new one
Bottom-Line



No law is a substitute for knowing what to do and
have the resources to do it
Public health law needs more imagination, not
more law
If you cannot convince the public that they need
to follow you, you cannot do it with a law or a gun
References

See: http://biotech.law.lsu.edu/cphl/slides/cdc-2005quarantine.htm