The Globalization of Infectious Diseases:
Questions Posed by the Behavioral, Social,
Economic and
Environmental Context of Emerging
Infections
Alfred DeMaria, Jr.*
I. INTRODUCTION
Emerging infections have received much attention over the past ten
years. These infections are often seen as a new phenomenon, a phenomenon of the infecting organism. In fact, emerging infections have occurred
in populations of humans since the emergence of the Homo sapiens species.1 Critical to the success of most emerging infectious diseases are human behavior, social organization, and alteration of the environment. The
nature of communicable diseases, and the behavioral, social, economic, and
environmental context in which they arise, pose a complex array of challenging social, political, ethical and legal questions.
This is a cursory examination of this topic, using selected emerged and
emerging infections which raise pertinent issues. There are a number of
* Chief Medical Officer, Director of Communicable Disease Control and State Epidemiologist in the Massachusetts Department of Public Health. The opinions expressed in this paper are solely those of the author and do not necessarily represent
any official positions of the Massachusetts Department of Public Health. I would
like to thank Priscilla B. Fox, Esq. and David E. Katz, M.D. for their review and
helpful comments.
1
The genetic relatedness of herpes viruses in humans and other animal species
mirror the genetic relatedness of the species they infect, suggesting that both the
host animal and the viruses evolved together. See Duncan J. McGeoch & Simon
Cook, Molecular Phylogeny of the Alphaherpesvirinae Subfamily and a Proposed
Evolutionary Timescale, 238 J. MOLECULAR BIOLOGY 9 (1994).
37
38
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
excellent, in-depth, accessible, and eminently readable books dealing with
emerging infections, public policy, and public health.2 This paper will not
deal with HIV/AIDS, which has been the preeminent emergent disease of
the last quarter of the twentieth century. The complex and intricate ethical,
legal, and policy issues posed by the world’s experience with HIV infection
are widely appreciated and have been extensively documented.3 Likewise,
sexually transmitted infections raise many issues that are beyond the scope
of the present discussion, but the reader can refer to readily accessible
sources of information.4 Finally, this paper is written from the perspective
of a public health practitioner with no legal training. Citations to biomedical and popular literature are made to provide background resources for
further exploration of particular topics.
II. EMERGING DISEASES
Most emergent human infectious diseases begin as animal diseases that
jump a “species barrier” to become a zoonosis.5 Such transmission may
occur on a sporadic basis, with limited potential for spread due to a lack of
human-to-human transmission. An example would be hantavirus pulmonary syndrome, a viral disease with a rodent source that was first recognized in 1993 in the desert Southwest. The zoonosis may become an infection sustainable in humans, as with the recent experience of severe acute
respiratory syndrome (SARS). SARS is caused by a virus of animal source
2
See generally RICHARD M. PRESTON, THE HOT ZONE (1994); LAURIE GARRETT,
THE COMING PLAGUE: NEWLY EMERGING DISEASES IN A WORLD OUT OF BALANCE
(1994); LAURIE GARRETT, BETRAYAL OF TRUST: THE COLLAPSE OF GLOBAL
PUBLIC HEALTH (2000); MADELINE DREXLER, SECRET AGENTS: THE MENACE OF
EMERGING INFECTIONS (2002); ELINOR LEVY AND MARK FISCHETTI, THE NEW
KILLER DISEASES: HOW THE ALARMING EVOLUTION OF MUTANT GERMS
THREATENS US ALL (2003).
3
See generally RANDY SHILTS, AND THE BAND PLAYED ON: POLITICS, PEOPLE
AND THE AIDS EPIDEMIC (1987); RONALD BAYER, PRIVATE ACTS, SOCIAL
CONSEQUENCES: AIDS AND THE POLITICS OF PUBLIC HEALTH (1991); LARRY O.
GOSTIN ET AL., HUMAN RIGHTS AND PUBLIC HEALTH IN THE AIDS PANDEMIC
(1997); LAWRENCE O. GOSTIN ET AL., THE AIDS PANDEMIC: COMPLACENCY,
INJUSTICE AND UNFULFILLED EXPECTATIONS (2004).
4
See genderally ALLAN BRANDT, NO MAGIC BULLET: A SOCIAL HISTORY OF
VENEREAL DISEASE IN THE UNITED STATES SINCE 1880 (Expanded edition 1987);
THOMAS R. ENG & WILLIAM T. BUTLER, INSTITUTE OF MEDICINE, THE HIDDEN
EPIDEMIC: CONFRONTING SEXUALLY TRANSMITTED DISEASES (1996); MELISSA
HOUGH & JULIE POPPE, Sexually Transmitted Diseases: A Policymaker's Guide
and Summary of State Laws, NAT’L CONF. OF ST. LEGIS. (1998).
5
Defined as an animal disease transmissible to humans.
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
39
capable of being transmitted to humans. Many human endemic6 and epidemic infectious diseases recognized throughout history have homologous
infections in other animals caused by closely related organisms. This
points to an evolutionary descent of the infectious agents from a common
ancestor.7
Infections derived from other species (from organisms that are normally
on or closely associated with humans) can arise in individual cases, but sustained transmission of infection (outbreak or epidemic) depends upon factors such as the infectiousness of the microorganism, the population density
of susceptible humans, and the degree of contact between infected and susceptible individuals.
Human beings once lived in small groups of hunter-gatherers and subsistence farmers. Potential for transmission of infection remained limited
by isolation of small populations. With civilization came fixed housing,
population growth, specialization of functions, armies, roads, etc., as well
as the potential for sustaining endemic diseases in larger populations.
Larger populations provided sufficient numbers of living and susceptible
people to allow ongoing transmission. Epidemics were fueled by increased
population density.
Today, we live in a “global village” where the likelihood of contact,
even at great distances, is enhanced by the efficiency of travel. We have
changed how we live: by moving to cities, working and living in climatecontrolled buildings, eating out more, embarking on exotic travel, etc. and
are changing our overall environment in new and dramatic ways. Thus,
conditions are in place to facilitate the emergence and spread of infections.
Technological sophistication and scientific advances have improved our
capacity to recognize new infections and communicate their existence. The
Institute of Medicine Report Emerging Threats to Health: Emergence, Detection, and Response8 highlights the superimposition of genetic/biological,
physical/environmental, ecological, and social/political/economic factors
6
Endemic implies ongoing occurrence/transmission of an infection in a population
at a relatively stable rate or in regular cycles, in contrast to epidemic disease that
occurs as a definite, often dramatic, increase in the number of infections.
7
Herpese virus is an example. See text in supra note 1. Likewise, human papillomaviruses , or wart viruses, appear to have evolved with human populations,
with their origin in prehuman primates. See Hans-Ulrich Bernard, Coevolution of
Papillomaviruses with Human Populations, 2 TRENDS MICROBIOLOGY 140.
(1994). Rinderpest, a viral disease of animals, is closely related to measles virus.
See Kristi M. Westover & Austin L. Hughes, Molecular Evolution of Viral Fusion
and Matrix Protein Genes and Phylogenetic Relationships Among the Paramyxoviridae, 21 MOLECULAR PHYLOGENETICS & EVOLUTION 128 (2001).
8
See MARK S. SMOLINSKI ET AL., INST. OF MED, MICROBIAL THREATS TO HEALTH:
EMERGENCE, DETECTION, AND RESPONSE (2003).
40
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
upon the host parasite interaction. The complex interplay of factors not only contributes to the emergence of infections, but also allows for the recognition that such emergence is taking place. This type of recognition was
not very likely in a world of small localized and isolated populations living
under primitive circumstances.
As agriculture emerged approximately ten thousand years ago, settled
populations reached sufficient numbers of susceptible people to maintain
the emergence and spread of a number of infectious diseases.9 It is likely
that many of the endemic diseases we have taken for granted, and continue
to take for granted, emerged over the past seven-thousand to ten-thousand
years (measles, whooping cough, diphtheria, etc.). Throughout recorded
history, trends of population growth and concentration continued and opportunities for epidemic disease presented themselves, exemplified by the
plague of Athens in 430 BCE, the Justinian plague in 500 CE, the Black
Death of the fourteenth century, syphilis in the sixteenth century, and cholera in the nineteeth century.
In the 1870s, burgeoning urban populations and mandatory school attendance in Britain and the United States were associated with increased
incidence of childhood diseases, such as whooping cough, diphtheria, measles, and mumps.10 Through most of history polioviruses were ubiquitous.
Due to poor hygiene, babies were exposed to the virus in the first year of
life. Antibodies passed from the mother limited the disease to the children’s gastrointestinal tracts.11 In the twentieth century, population concentration and improved sanitation, counterintuitive to those observing polio epidemics, led to children not being exposed to poliovirus early in life
when they still had the maternal antibody to protect their nervous systems.
This led to more paralytic disease and larger, and more regular, polio epidemics.12 Most recently, global warming, which many scientists believe is
directly linked to human activity, has resulted in widespread increases of
malaria risk, due to increased mosquito populations at higher elevations
9
See generally JARED DIAMOND, GUNS, GERMS AND STEEL: THE FATES OF
HUMAN SOCIETIES (1997) (providing an in-depth discussion of the interaction of
human history, migration, civilization, food source and zoonoses).
10
See ANNE HARDY, THE EPIDEMIC STREETS. INFECTIOUS DISEASE AND THE RISE
OF PREVENTIVE MEDICINE, 1856-1900 50 (1993).
11
Poliomyelitis is caused by the three types of polioviruses which in most infected
individuals cause gastrointestinal disease, but which 1 in 100 to 1000 invade the
nervous system and cause paralysis.
12
See Neal Nathanson & John R. Martin, The Epidemiology of Poliomyelitis:
Enigmas Surrounding Its Appearance, Periodicity, and Disappearance, 110 AM. J.
EPIDEMIOLOGY 672, 675-8 (1979).
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
41
and latitudes, related to increasing temperature and rainfall.13
III. EXAMPLES OF EMERGING INFECTIONS
A. Tuberculosis
Tuberculosis may be viewed as an emerging infection over a long timeline. Although there may have been earlier emergences of tuberculosis in
various parts of the world in human history,14 the historical record suggests
that tuberculosis emerged as a larger threat over the past six hundred to
seven hundred years. The threat first emerged in Europe, and then across
the world, in line with changes in human living conditions and European
colonization. Evidence of tuberculosis also exists in ancient Egypt and
South America. However, it is unclear whether these cases represent true
human tuberculosis (due to Mycobacterium tuberculosis) or bovine tuberculosis in humans (caused by the closely related M. bovis). Identified ancient cases of tuberculosis are limited to evidence in mummies or bones
and the two strains of tuberculosis bacteria cannot be distinguished under
those circumstances. It may be that tuberculosis in ancient humans represented sporadic bovine tuberculosis, recognition of which was enhanced by
the fact that individuals whose remains were preserved were of higher socioeconomic status, more likely to benefit from cattle ownership, and therefore exposed to cattle-derived products, such as milk. Many of the remains
are of persons who had tuberculosis of the spine and resulting deformities
were prized in slaves by certain cultures. This may also indicate that these
cases may not be typical of the prevalence of tuberculosis in the general
population.15 The human tuberculosis organism may have evolved from
M. bovis or they may have had a common ancestor.
Tuberculosis became particularly notable in Europe as “consumption”
over the last seven hundred years, congruent with the gradual recovery
from the devastating demographic impact of plague and other events of the
fourteenth century, as well as in association with expanding urban populations and enhanced travel.16 By the nineteenth century, tuberculosis had
13
See Paul R. Epstein, Is Global Warming Harmful to Health? SCI. AM., Aug.
2000, at 52-55.
14
See THOMAS M. DANIEL, CAPTAIN OF DEATH: THE STORY OF TUBERCULOSIS 921 (1997).
15
See id. at 9-10.
16
Contemporaneous with this possible emergence was the relatively dramatic disappearance of leprosy and the closure of leprosaria across Europe. Infection with
M. tuberculosis provides a degree of immunity to the organism that causes leprosy
(M. leprae) and widespread tuberculosis infection may have resulted in the regression of leprosy. See WILLIAM H. MCNEILL, PLAGUES & PEOPLES 155-57 (1976).
A similar displacement by mycobacterial diseases may have also been occurring in
42
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
become the single most common cause of death in industrialized Europe
and the United States.
The emergence of human tuberculosis may have represented the emergence of an agent with the capacity to spread from person-to-person, rather
than from cow-to-person. This new capacity for the spread of disease was
superimposed upon the societal resurgence of Europe following the demographic and socioeconomic setback of the fourteenth century. The relatively high prevalence of tuberculosis in Asia, Africa, and among indigenous
people in North and South America in the past century almost certainly
represents more recent introduction of tuberculosis during the age of European colonial expansion. Tuberculosis can be a much more acute disease
in previously unexposed populations than in populations that have evolved
with tuberculosis infection and have a degree of resistance by natural selection. In the latter circumstance, a chronic form of pulmonary involvement
is characteristic.17 The possible emergence of tuberculosis in relatively recent history, and its introduction to previously unexposed populations, provides an example of the many factors coming into play as an infection
emerges and spreads.
In the late 1980s, the United States experienced an increase in the incidence of tuberculosis in certain cities and populations after decades of sustained decrease across the country. In some cities, M. tuberculosis was resistant to many drugs used in treatment and was causing outbreaks of
tuberculosis.18 The increase in tuberculosis was associated with a number
of factors, including increased homelessness, and the subsequent exposure
to congregate shelter environments, substance abuse, increased incarceration rates, increased HIV infection, and previous dismantling of public
health and disease control programs.19
Many interventions and resources were applied and tuberculosis rates
Africa and associated with urbanization. See J.M. Hunter & M.O. Thomas, Hypothesis of Leprosy, Tuberculosis and Urbanization in Africa, 19 SOC. SCI. MED.
27 (1984).
17
See J.H. Bates & W.M. Stead, The History of Tuberculosis as a Global Epidemic, 77 MED. CLINICS N. AM. 1205 (1993).
18
See Sonal S. Munsiff et al., Persistence of a Highly Resistant Strain of Tuberculosis in New York City During 1990-1999, 188 J. INFECTIOUS DISEASE 356 (2003).
19
See K. Brudney & J. Dobkin, Resurgent Tuberculosis in New York City. Human
Immunodeficiency Virus, Homelessness, and the Decline of Tuberculosis Control
Programs, 144 AM. REV. RESPIRATORY DISEASES 745 (1991); L.B. Reichman,
The U-shaped Curve of Concern, 144 AM. REV. RESPIRATORY DISEASES 741
(1991); A.S. Malin & K.P. McAdam, Escalating Threat from Tuberculosis: The
Third Epidemic, 50 THORAX (Supp. 37-42) (1995).
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
43
were back on a decreasing track in several years.20 One intervention in
New York City mandated directly observed therapy (DOT),21 regardless of
the likelihood of individuals adhering to a drug regimen.22 This stimulated
a vigorous and continuing debate regarding the intersection of measures to
prevent tuberculosis transmission and drug-resistance with human rights
concerns.23
B. Lyme disease
An excellent example of the interaction of human activity and behavior
with infection risk is presented by the emergence and spread of Lyme disease24 across the Northeast United States. There is evidence of Lyme disease in the Northeast from the 1940s and earlier, and certainly in Europe
20
See Approaches to Improving Adherence to Antituberculosis Therapy--South
Carolina and New York, 1986-1991, MORBIDITY AND MORTALITY WKLY. REP.
(Center for Disease Control, Atlanta, Ga.), Feb. 5, 1993, at 74-5, 81 [hereinafter
Approaches]; M. Rose Gasner et al., The Use of Legal Action in New York City to
Ensure Treatment of Tuberculosis, 340 NEW ENG. J. MED. 359 (1999); W.F. Paolo, Jr. & J.D. Nosanchuk, Tuberculosis in New York City: Recent Lessons and a
Look Ahead, 4 LANCET 287 (2004).
21
Therapy of tuberculosis might take up to a year or more. It is critical that
therapy be complete and uninterrupted to effectuate a cure and reduce the
likelihood of drug resistance. DOT is the observance, by a designee or
representative of the public health agency, of every dose being taken. See
Approaches, supra note 20.
22
See P.I. Fujiwara et al., Directly Observed Therapy in New York City. History,
Implementation, Results, and Challenges, 18 CLINICAL CHEST MED. 135 (1997).
23
See L.O. Gostin, Controlling the Resurgent Tuberculosis Epidemic: A 50-State
Survey of TB Statutes and Proposals for Reform, 269 JAMA 255 (1993); R. Bayer
et al., The Dual Epidemics of Tuberculosis and AIDS: Ethical and Policy Issues in
Screening and Treatment, 83 AM. J. PUB. HEALTH 649 (1993); M.D. Iseman, et al.,
Directly Observed Treatment of Tuberculosis-- We Can't Afford Not to Try It, 328
NEW ENG. J. MED. 576 (1993); R. Bayer & L. Dupuis, Tuberculosis, Public
Health, and Civil Liberties, 16 ANN. REV. PUB. HEALTH 307 (1995); R. Bayer et
al., Directly Observed Therapy and Treatment Completion for Tuberculosis in the
United States: Is Universal Supervised Therapy Necessary?, 88 AM. J. PUB.
HEALTH 1052 (1998); W. el-Sadr et al., Directly Observed Therapy for Tuberculosis: The Harlem Hospital Experience 1993, 86 AM. J. PUB. HEALTH 1146
(1997); P.I. Fujiwara, et al., supra note 22; S. J. Heymann et al., The Influence of
Program Acceptability on the Effectiveness of Public Health Policy: A Study of Directly Observed Therapy for Tuberculosis, 88 AM. J. PUB. HEALTH 442 (1998);
Barron H. Lerner, Catching Patients: Tuberculosis and Detention in the 1990s,
115 CHEST 236, 236-238, 240 (1999); R. Coker, Just Coercion? Detention of
Nonadherent Tuberculosis Patients, 953 ANNALS N.Y. ACAD. SCI. 216 (2001).
24
Other tick-borne diseases, such as babesiosis, the parasitic infection of red blood
cells, and ehrlichiosis, or, more correctly, anaplasmosis, a bacterial infection of
white blood cells are becoming increasingly common.
44
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
for at least one-hundred years.25 But it was not until the 1970s that clusters
arthritis cases in Lyme, Connecticut led to the recognition of this tick-borne
bacterial infection.26 Lyme disease continued to spread in intensity and
geographic extent since.
The spread of Lyme disease is directly related to ecological changes, as
well as to the reintroduction of deer and their explosive population growth,
in the Northeast.27 For most of the nineteenth century, the Northeast was
cleared agricultural land, with the virgin forest virtually eliminated. The
only deer that survived were located on islands off the coast. In the closing
years of the nineteenth century, as agriculture moved west and scrub forest
started to reclaim the land, the cleared land gave way to reforestation and
suburban yards. This was particularly true in the twentieth century, due to
the reduction of farming and increased suburbanization. Deer were reintroduced and protected, and therefore rebounded to unprecendented populations.28
Deer are hosts to the adult Ixodes ticks which transmit the Lyme diseasecausing organism. Ticks have a two-year life cycle that involves larval and
nymphal stages. They feed on the blood of deer mice, which may be teaming with Lyme disease bacteria. Larvae, nymphs, and the adult ticks feed
and breed on deer, and then may transmit infection to humans.29
The environment of the Northeast, created by the regression of farm land
and the expansion of suburban landscape, provides perfect conditions for
the deer to feed and multiply, thereby supporting larger populations of ticks
capable of transmitting infection. Mice, which are the reservoir for the
Lyme disease organism, prosper in leaf litter and are available to the ticks
for meals of infected blood. Given the increased human suburban and exurban population, the situation is ideal for humans to be bitten by infected
ticks and acquire Lyme disease. Had social and environmental conditions
25
See D.H. Persing et al., Detection of Borrelia burgdorferi DNA in Museum
Specimens of Ixodes Dammini Ticks, 249 SCIENCE 1420 (1990); W.F. Marshall et
al., Detection of Borrelia burgdorferi DNA in Museum Specimens of Peromyscus
leucopus, 170 J. INFECTIOUS DISEASES 1027 (1994).
26
See Allen C. Steere et al., Lyme Arthritis: An Epidemic of Oligoarticular Arthritis in
Children and Adults in Three Connecticut Communities, 20 ARTHRITIS RHEUM 7
(1977); B.W. Burgdorfer, et al., Lyme Disease – A Tick-borne Spirochetosis?, 216
SCIENCE 1317 (1982).
27
See A. Spielman, The Emergence of Lyme Disease and Human Babesiosis in a
Changing Environment, 740 ANNALS N.Y. ACAD. SCI. 146 (1994).
28
See id.; A.G. Barbour et al., The Biological and Social Phenomenon of Lyme
Disease, 260 SCIENCE 1610 (1993).
29
See Allen C. Steere et al., The Emergence of Lyme Disease, 113 J. CLINICAL
INVESTIGATION 1093 (2004).
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
45
remained unchanged, Lyme disease would be perhaps no more than an occasional clinical oddity.
C. Foodborne infections
The U.S. food supply is increasingly international, with produce and
meat supplied from all parts of the world, and new food products constantly
introduced to the American table.30 Fruits and vegetables from the southern hemisphere predominate supermarkets in the winter. Australia, New
Zealand and South America supply meat. Restaurants and homes serve exotic foods. In times when virtually all that Americans ate was grown within fifty miles of their homes, contamination by infectious agents usually
occurred in the supply or processing chain and outbreaks of foodborne disease were infrequent.
As the food supply became increasingly centralized and industrial methods of production replaced local production, experts predicted that foodborne illness outbreaks, such as those caused by the Salmonella species of
bacteria, would become widespread and larger in scale.31 In the past twenty-five years, foodborne outbreaks have affected hundreds and thousands of
individuals in multiple states and countries.32 Highly publicized outbreaks
of E. coli O157:H7 infection have occurred in large numbers of individuals
who ate the same contaminated meat supply at chain restaurants, or drank
30
See Linda Calvin, Response to U.S. Foodborne Illness Outbreaks Associated
with Imported Produce, in INTERNATIONAL TRADE AND FOOD SAFETY: ECONOMIC
THEORY AND CASE STUDIES (J. Buzby ed., 2003). p. 74-96, available at
http://www.ers.usda.gov/publications/aer828/; C.W. Hedberg et al., Changing Epidemiology of Food-borne Disease: A Minnesota Perspective, 18 CLINICAL
INFECTIOUS DISEASES 671 (1994); Robert V. Tauxe & James M. Hughes, International Investigation of Outbreaks of Foodborne Disease, 313 BRIT. MED. J. 1093
(1996); P.S. Mead & E.D. Mintz, Ethnic Eating: Foodborne Disease in the Global Village, 5 INFECTIOUS DISEASE CLINIC PRACTICE 232 (1996).
31
See H. Bauer, Growing Problem of Salmonellosis in Modern Society, 52
MEDICINE 232 (1973).
32
See D. Killalea et al., International Epidemiological andMicrobiological Study
of Outbreak of Salmonella Agona Infection from a Ready to Eat Savoury Snack--I:
England and Wales and the United States, 313 BRIT. MED. J. 1105, 1105-7 (1996);
Barbara E. Mahon et al., An International Outbreak of Salmonella Infections
Caused by Alfalfa Sprouts Grown from Contaminated Seeds, 175 J. INFECTIOUS
DISEASES 876 (1997); T.S. Naimi et al., Concurrent Outbreaks of Shigella Sonnei
and Enterotoxigenic Escherichia Coli Infections Associated with Parsley: Implications for Surveillance and Control of Foodborne Illness, 66 J. FOOD PROTOCOL
535 (2003); Sumathi Sivapalasingam et al., A Multistate Outbreak of Salmonella
Enterica Serotype Newport Infection Linked to Mango Consumption: Impact of
Water-dip Disinfestation Technology, 37 CLINICAL INFECTIOUS DISEASES 1585
(2003).
46
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
juice distributed over a wide area.33 In more recent years, international
transport of food has resulted in widespread, sometimes international, outbreaks of foodborne illness, with contamination occurring at the source: in
the fields where produce was harvested.34 For example, the emergence of
infection due to Cyclospora cayetensis35 was caused by contamination of
raspberries in the fields of Central America.36 Other examples are outbreaks of bacterial dysentery, salmonellosis and E. coli O157:H7, which
were associated with parsley harvested in Mexico and shipped around the
world.37
When food supply is local and few consumers eat it, tracking the source
of an outbreak of foodbore illness may be relatively easy. For example, if a
church supper or wedding meal served locally produced food that caused
illness, within one to two days in enough attendees, the common source
would be obvious. When food is produced in one place, contaminated at
the source and shipped so that millions may be exposed, even an infection
with a low attack rate can cause thousands of cases of illness spread across
a large population. Each case, or handful of cases, may be isolated in separate jurisdictions of surveillance. Such outbreaks may only be recognized
by modern techniques of molecular epidemiology, where similarities in the
microorganisms from isolated cases point to a common source. This pattern of food-borne illness has become a major challenge across state and
international boundaries. The current situation raises a number of issues
concerning food safety regulation, legal authority for surveillance, sharing
of information, and international trade.
33
Sara H. Cody et al., An Outbreak of Escherichia Coli O157:H7 Infection from
Unpasteurized Commercial Apple Juice. 130 ANNALS INTERNAL MED. 202 (1999);
Beth P. Bell et al., A Multistate Outbreak of Escherichia Coli O157:H7-Associated
Bloody Diarrhea and Hemolytic Uremic Syndrome from Hamburgers: The Washington Experience. 272 JAMA 1349 (1994); Michele T. Jay et al., A Multistate
Outbreak of Escherichia Coli O157:H7 Infection Linked to Consumption of Beef
Tacos at a Fast-food Restaurant Chain, 39 CLINICAL INFECTIOUS DISEASES 1
(2004).
34
See Mahon, et al., supra note 32; Naimi, et al., supra note 32.
35
Cyclospora cayetensis is a parasite that causes diarrhea. The parasite is excreted in the stool and becomes infectious after a period of time. If it contaminates
something that people subsequently ingest it can cause diarrheal illness. Prior to
the mid-1990s, it was infrequently recognized as a cause of illness in travelers to
the developing world. In the mid- to late 1990s, it caused several outbreaks in the
United States which were epidemiologically linked to raspberries from Guatemala.
36
Barbara L. Herwaldt & M.L. Ackers, An Outbreak in 1996 of Cyclosporiasis
Associated withImported Raspberries: The Cyclospora Working Group. 336 NEW
ENG. J. MED. 1548 (1997).
37
See Mahon, et al., supra note 32; Naimi, et al., supra note 32.
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
47
D. Healthcare-associated infections
Hospital-associated infections were often thought of as an institutional
problem, but have developed a broader, international dimension. Methicillin-resistant Staphylococcus aureus, or MRSA, is a major cause of difficult-to-treat, healthcare-acquired infection in the United States.38 Recently,
with the application of molecular epidemiologic techniques similar to those
noted above, it has become apparent that there is international trade in hospital-acquired bacteria. Healthcare workers providing services in foreign
places can bring organisms of concern along with them. 39 For example, a
prolonged and extensive outbreak of S. aureus infections affected many patients in a New York City burn treatment center. The strain found in the
outbreak (the “Iberian strain”) was widely circulating in Europe. It was
apparently introduced to the treatment center from Europe, perhaps through
an infected patient, a non-infected patient, or a healthcare worker carrier.40
A potentially more dramatic threat is raised by the Ebola virus, which
causes a usually fatal, overwhelming, and communicable disease in West
Africa. Ebola virus infection has no effective treatment. Many secondary
cases of Ebola occur in care-givers exposed to blood and body fluids of patients in homes and health care facilities with primitive levels of infection
control and limited resources.41 It is possible that a health care provider
from the developed world working in such a facility could have unrecognized contact with Ebola and return to their home country before the onset
of symptoms. Delay in proper diagnosis could lead to more health care
workers being exposed and a subsequent healthcare-related outbreak of
Ebola, which then could potentially spread to community contacts of the
38
And now, separate strains of MRSA have been appearing in infections in the
community, not firmly associated with health care facility exposure. These strains
are turning up worldwide, often with remarkable degrees of genetic relatedness
which is, as yet, unexplained. See H.F. Chambers, The Changing Epidemiology of
Staphylococcus Aureus?, 6 EMERGING INFECTIOUS DISEASES 178 (2001).
39
See M.Aires de Sousa et al., Similarity of Antibiotic Resistance Patterns and
Molecular Typing Properties of Methicillin-resistant Staphylococcus aureus Isolates Widely Spread in Hospitals in New York City and in a Hospital in Tokyo, Japan, 6 MICROBIAL DRUG RESISTANCE 253 (2000).
40
See R.B. Roberts et al., Outbreak in a New York City Teaching Hospital Burn
Center Caused by the Iberian Epidemic Clone of MRSA, 4 MICROBIAL DRUG
RESISTANCE 175 (1998).
41
See S.F. Dowell et al., Transmission of Ebola Hemorrhagic Fever: A Study of
Risk Factors in Family Members, Kikwit, Democratic Republic of the Congo,
1995. Commission de Lutte contre les Epidemies a Kikwit, 179 J. INFECTIOUS
DISEASE 87 (Supp. 1999); P. Francesconi et al., Ebola Hemorrhagic Fever Transmission and Risk Factors of Contacts, Uganda, 9 EMERGING INFECTIOUS DISEASE
1430 (2003).
48
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
infected health care workers.
E. Severe Acute Respiratory Syndrome (SARS)
In 2003, world attention was captured by the emergence of severe acute
respiratory syndrome (SARS) in widespread parts of the world.42 The
coronavirus that causes SARS is a virus that made the jump from animals
to humans and then developed the capacity to pass from person-toperson.43 Although there are well-known human coronaviruses that cause
common colds, there are many animal coronaviruses causing diverse diseases, such as kennel cough in dogs, diarrhea in pigs and turkeys, bronchitis in birds, and hepatitis in mice.44 It appears that the SARS-associated
coronavirus that emerged in China in 2002 had a wild animal source, with
the masked palm civet cat45 being the leading candidate.46 Prized as an exotic meat, the live masked palm civet cat has close contact with humans
through wet markets and butchering activities.47 The novel virus caused an
epidemic of pneumonia in Guangdong province for months before the appearance of cases. Outbreaks in health care facilities outside of mainland
China brought it to world attention in March 2003.
The spread of SARS to places outside of China, Taiwan, and Hong Kong
was almost entirely the result of spread from an ill Guangdong physician
who spent one day in February, in room 911 of the Hotel Metropole, in
Kowloon, Hong Kong. Other hotel guests were exposed and brought the
infection to Hanoi, Singapore, Montreal, Vancouver, Frankfort and other
cities around the world, with healthcare-associated outbreaks resulting in
some cases and some spreading to the larger community.48
42
See Kenneth W. Tsang et al., A Cluster of Cases of Severe Acute Respiratory
Syndrome in Hong Kong, 348 NEW ENG. J. MED. 1977 (2003); Susan M. Poutanen
et al., Identification of Severe Acute Respiratory Syndrome in Canada, 348 NEW
ENG. J. MED. 1995 (2003).
43
See Y. Guan et al., Isolation and Characterization of Viruses Related to the
SARS Coronavirus from Animals in Southern China, 302 SCIENCE 276 (2003); T.
Kuiken et al., Newly Discovered Coronavirus as the Primary Cause of Severe
Acute Respiratory Syndrome, 362 LANCET 263 (2003).
44
See STUART G. SIDDELL, THE CORONAVIRIDAE (VIRUS) (1995).
45
The masked palm civet cat is not actually a cat, but a raccoon-like animal.
46
See Guan et al., supra note 43.
47
See Robert G. Webster, Wet Markets--A Continuing Source of Severe Acute
Respiratory Syndrome and Influenza?, 363 LANCET 234 (2004).
48
See Update: Outbreak of Severe Acute Respiratory Syndrome--Worldwide,
2003, MORBIDITY & MORTALITY WKLY. REP. (Center for Disease Control, Atlanta,
GA), March 28, 2003, at 248.; Y.J. Ruan et al., Comparative Full-length Genome
Sequence Analysis of 14 SARS Coronavirus Isolates and Common Mutations Associated with Putative Origins of Infection, 361 LANCET 1779 (2003).
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
49
SARS is exemplary of many of the factors and challenges associated
with emerging infection. It is a zoonosis. It emerged in a setting of high
human population density and resulted from close contact to otherwise wild
animals. The virus has the capacity for human-to-human spread. It
demonstrated the potential for the global spread of disease via rapid international travel. Finally, transmission among healthcare workers was intensified by modern health care techniques and the associated invasive nature
of intensive care.49
F. Monkeypox
Another zoonosis that came to public attention in 2003 was monkeypox.
There are many pox viruses, the most famous being smallpox: the pox virus
of humans and the cause of much human misery and death prior to its eradication from the world in the late 1970s. However, there is a pox virus in
Africa that is probably a pox virus of rodents, which can be transmitted to
humans and other primates, including monkeys. The virus was therefore
referred to as “monkeypox,” as it was recognized in this presumed incidental host. Cases and outbreaks of human monkeypox have been recognized in Africa since 1970, but while human-to-human transmission does
occur, it is not very efficient, at least not in respect to strains of the virus
encountered so far.50
In May and June of 2003, monkeypox surprisingly occurred in the United States in Wisconsin, Illinois, Indiana, Missouri, and Kansas in individuals exposed to sick prairie dogs acquired as pets from animal distributors.51
These prairie dogs had been exposed to exotic animals imported from Africa for pet trade. It was almost immediately apparent that some of these exotic animals, including giant Gambian rats, rope squirrels, tree squirrels,
49
See L.C. McDonald et al., SARS in Healthcare Facilities, Toronto and Taiwan,
10 EMERGING INFECTIOUS DISEASE 777 (2004); T. Svoboda et al., Public Health
Measures to Control the Spread of the Severe Acute Respiratory Syndrome During
the Outbreak in Toronto, 350 NEW ENG. J. MED. 2352 (2004); G. Gopalakrishna et
al., SARS Transmission and Hospital Containment, 10 EMERGING INFECTIOUS
DISEASE 395 (2004); R.A. Fowler et al., Transmission of Severe Acute Respiratory
Syndrome During Intubation and Mechanical Ventilation, 169 AM. J.
RESPIRATORY CRITICAL CARE MED. 1198 (2004); M. Varia et al., Investigation of
a Nosocomial Outbreak of Severe Acute Respiratory Syndrome (SARS) in Toronto,
Canada, 169 CAN. MED. ASS’N. J. 285 (2003).
50
See D.B. Di Giulio & P.B. Eckburg, Human Monkeypox: An Emerging Zoonosis, 4 LANCET 15 (2004).
51
See Update: Multistate Outbreak of Monkeypox--Illinois, Indiana, Kansas, Missouri, Ohio, and Wisconsin, 2003, MORBIDITY & MORTALITY WKLY REP. (Center
for Disease Control, Atlanta, GA) June 20, 2003, at 561; K.D. Reed et al., The Detection of Monkeypox in Humans in the Western Hemisphere, 350 NEW ENG. J.
MED. 342 (2004).
50
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
brush-tailed porcupines, striped mice, and dormice, had potentially been
exposed to the monkeypox virus. These animals became ill when they
stayed in the same facilities as the American prairie dogs. The exposure
alerted public health officials to the risk associated with the import of wild
animals for pets and the potential introduction of monkeypox to North
America.
The monkeypox virus, which can be introduced into rodent or other animal populations, may develop into a persistent zoonosis in the Western
hemisphere. A new, human-adapted pox virus could become an endemic
human infection, essentially replacing smallpox. It is likely that the emergence of monkeypox in humans and the eradication of smallpox are linked.
Until thirty years ago, widespread vaccination against smallpox in Africa
provided significant protection against monkeypox in vaccinated humans.
Now, with the elimination of the smallpox vaccination, a growing number
of human monkeypox cases have been identified in endemic regions of
West Africa.52
Although there is currently a small potential for transmission among
humans, the population of susceptible individuals is increasing due to the
elimination of the smallpox vaccination. The capability of rapid global
transport of exotic animals, which may be infected with the monkeypox virus and a variety of other microbial threats, points to the need to examine
the international pet trade and consider safeguards to prevent disease introduction. Fortunately, the connection between the pox illness in humans
and sick prairie dogs was detected early, as monkeypox is a disease that
can be confused with smallpox, especially on the basis of laboratory testing. The introduction of monkeypox could have been easily mistaken for a
bioterrorist smallpox attack.
G. Pandemic influenza
Many virologists and public health officials are concerned about pandemic influenza, especially with the recent influx of avian influenza in Asia
and the capacity of the H5N1 avian influenza A virus53 to cause severe in52
See D.L. Heymann et al., Re-emergence of Monkeypox in Africa: A Review of
the Past Six Years, 54 BRIT. MED. BULL. 693 (1998).
53
Influenza viruses are classified by type: A and B are major epidemic strains,
with A being associated with pandemic influenza as well (vide infra). C is a virus
which causes a common cold syndrome. Influenza A viruses are further typed by
their surface proteins, hemagglutinin (H) and neuraminidase (N), as H#N# types.
There are fifteen different H types and nine N types. Viruses causing pandemic
disease in humans for the past one hundred years are H1N1, H2N2 and H3N2. Influenza viruses are also characterized by where they are isolated, as in influenza
A/Pananma/H3N2.
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
51
fection in people.54, 55
Pandemic influenza occurs every twenty to forty years, worldwide and
over the course of one to two influenza seasons.56 Between 1918 and 1919,
pandemic influenza caused the largest loss of human life in recorded history, with upwards of forty to fifty million deaths, accounting for approximately two percent of the population. In fact, the number of fatalities were
larger than those who died as a result of World War I.57 The last two pandemics occurred in 1957 (“Asian flu”) and in 1968 (“Hong Kong flu”), but
the mortality rate was less as compared to the 1918 strain of the virus. The
world population is overdue for another pandemic; it is a matter of when,
not if.
The Type A influenza virus is extremely variable genetically. Each
year, genetic “drift” changes the virus, requiring frequent reformulation of
the influenza vaccine. However, it is genetic “shift” that leads to pandemic
influenza. Genetic “shift” is the rearrangement, or reassortment, of the genetic make-up of the virus. The “shift” leads to a virus that differs from
any earlier influenza virus to which the population has been exposed. This
54
See Taisuke Horimoto & Yoshihiro Kawaoka, Pandemic Threat Posed by Avian
Influenza A Viruses, 14 CLINICAL MICROBIOLOGY REV. 129, 142 (2001); K.S. Li
et al., Genesis of a Highly Pathogenic and Potentially Pandemic H5N1 Influenza
Virus in Eastern Asia, 430 NATURE 209 (2004). Perhaps a heightened level of
concern should also be expressed about the Nipah virus. Nipah is a virus distantly
related to measles virus that resides in flying foxes in Southeast Asia and South
Asia. Human cases, with a mortality rate of forty percent, occurred in Malaysia
and Singapore in the mid-1990s related to spread of the virus to domestic pigs and
then to people. A related virus of flying foxes, the Hendra virus, caused three infections and two deaths in Australia earlier. Recently, two outbreaks of the Nipah
virus infection have occurred in Bangladesh, with over fifty cases and a sixty-six
percent fatality rate. While direct contact with flying foxes has been implicated,
no domestic animal intermediates have been identified and there is the possibility
that human-to-human transmission occurred.
55
See Weekly Epidemiological Record, WHO (World Health Organization, Geneva), April 23, 2004, at 79, 168-171.
56
Richard J. Webby & Robert G. Webster, Are We Ready for Pandemic Influenza?, 302 SCIENCE 1519 (2003).
57
See generally ALFRED W. CROSBY, AMERICA’S FORGOTTEN PANDEMIC: THE
INFLUENZA OF 1918 (1989); GINA B. KOLATA, FLU: THE STORY OF THE GREAT
INFLUENZA PANDEMIC OF 1918 AND THE SEARCH FOR THE VIRUS THAT CAUSED IT
(1999); JOHN M. BARRY, THE GREAT INFLUENZA: THE EPIC STORY OF THE
DEADLIEST PLAGUE IN HISTORY (2004). For a recent academic work which has
begun to elucidate the origins of the 1918 virus, see generally Ann H. Reid & Jeffery K. Taubenberger, The Origin of the 1918 Pandemic Influenza Virus: A Continuing Enigma, 84 J. GEN. VIROLOGY 2285 (2003).
52
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
virus is now virulent for the vast majority of the population. With an incubation period as short as two days and a high degree of infectiousness,
spread can be extremely rapid.
One likely scenario for the emergence of pandemic influenza is close
contact between domestic birds, such as ducks and chickens, pigs, and humans. Pigs are particularly susceptible to both bird and human influenza.
Should a pig be simultaneously infected by viruses from both human and
avian sources, the genetic material of the virus could re-assort, creating a
new virus with human infectious capacity coupled with a novel challenge
to immune system recognition.58 However, it has recently been appreciated that avian virus strains might be able make the direct leap.
For the first time, in 1997, avian influenza A of the H5N1 type carried
by birds spread to eighteen people in Hong Kong, resulting in six deaths.59
The virus originated from prior outbreaks in market fowl.60 In three days,
millions of birds were slaughtered, and then either buried or burned in an
attempt to control the bird flu. This episode essentially was limited to
Hong Kong. In 2004, H5N1 emerged in birds once again, but was evidenced across Asia and to an unprecedented extent, resulting in human cases and deaths in Vietnam and Thailand.
Although no human-to-human transmissions were identified, there was
evidence that the virus was mutating and becoming more effective in causing illness in humans.61 Thus, the stage may be set for emergence of a virulent strain of influenza A virus having the potential to acquire the capacity
to pass person-to-person, resulting in a pandemic. This may be the direct
result of emergent virus in large domestic bird populations, in close proximity to large populations of people, in a world closely joined by rapid international travel. The potential of a pandemic influenza is the most feared
impending mass epidemic.
IV. ISSUES AND QUESTIONS
The examples above convey the complexity related to emerging infec58
Robert G. Webster, Influenza: An Emerging Disease, 4 EMERGING INFECTIOUS
DISEASE 436 (1998).
59
E.C. Claas et al., Human Influenza A H5N1 Virus Related to a Highly Pathogenic Avian Influenza Virus, 351 LANCET 472 (1998); K.F. To et al., Pathology of Fatal Human Infection Associated with Avian Influenza A H5N1 Virus, 63 J. MED.
VIROLOGY 242 (2001).
60
See K.F. Shortridge et al., Characterization of Avian H5N1 Influenza Viruses
from Poultry in Hong Kong, 252 VIROLOGY 331 (1998).
61
See H. Chen et al., The Evolution of H5N1Influenza Viruses in Ducks in Southern China, 101 PROC. NAT’L ACAD. SCI. 10452 (2004); K.S. Li et al., supra note
54.
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
53
tions and the multiplicity of interacting factors beyond the straightforward
interaction of host and parasite. Much concern has been generated as to
preparedness in dealing with bioterrorist threats (intentional epidemics) and
how to balance responses, human rights, and civil liberties.62 Emerging
infections (unintentional epidemics) similarly present a number of challenges to public policy and raise questions regarding the adequacy and application of existing laws and global strategies.63 State law governs surveillance and response to infectious diseases in the United States, and deal
with communicable diseases in general, including regulation of sexually
transmitted diseases specifically, tuberculosis specifically, and immunization and certain other diseases (HIV/AIDS, Lyme disease, meningitis, etc.)
individually. In many states, questions remain regarding the consistency
and coherency of existing laws, considering the modern challenges of infectious diseases, and modern ideas of human rights,64 as most laws date
back to the nineteeth century.
Whether it is urbanization, in the case of tuberculosis, or suburbanization, in the case of Lyme disease, the way people live and interact with the
environment has much to do with the successful transmission of an infectious disease. Rapid travel enables people, animals, and infectious agents
to be transferred and exposed to new populations of susceptible people. Increasingly, commerce provides an effective mechanism for the transfer of
infectious agents, as in the case of the international food supply and commercial pet trade.
The United States imports much of its food supply from all parts of the
world.65 While this enhances the American diet, numerous examples of international food-borne illness outbreaks have occurred as a result of this in62
See Lawrence O. Gostin et al., The Model State Emergency Health Powers Act:
Planning for and Response to Bioterrorism and Naturally Occurring Infectious
Diseases, 288 JAMA 622 (2002); R. Bayer & J. Colgrove, Bioterrorism, Public
Health, and the Law, 21 HEALTH AFF. 98 (2002); Gene W. Matthews et al., Legal
Preparedness for Bioterrorism, 30 J. L. MED. ETHICS 52 (2002).
63
See generally D.P. Fidler, Globalization, International Law, and Emerging Infectious Diseases, 2 EMERGING INFECTIOUS DISEASE 77 (1996); LAWRENCE O.
GOSTIN ET AL., IMPROVING STATE LAW TO PREVENT AND TREAT INFECTIOUS
DISEASE (1998); James J. Misrahi et al., HHS/CDC Legal Response to SARS Outbreak, 10 EMERGING INFECTIOUS DISEASES 353 (2004); Lawrence O. Gostin, International Infectious Disease Law: Revision of the World Health Organization's
International Health Regulations, 291 JAMA 2623 (2004).
64
See generally Lawrence O. Gostin et al., The Law and the Public's Health: A
Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59
(1999).
65
Fruits and vegetables from South America and South Africa and shellfish from
aquaculture operations in Asia are two examples of common foods obtained internationally by the United States.
54
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
ternational trade.66 Several questions then arise: How does the law address
the way people live in respect to the risk of infectious diseases? Should the
risk of foodborne disease prevent people from accessing certain types of
food? What rights do people have with respect to ownership of certain
pets? Short of banning certain foods and pets, how should government
regulate the safety of items originating in foreign parts of the world?
The threat of infectious disease is not usually evident in the food product
or animals at the time of import, and the importing country has limited surveillance capacity or authority at the scene of contamination or exposure.
The United States has used economic pressure to change agricultural policy
in other nations. For example, in 1997, the Food and Drug Administration
(FDA) banned imports of Guatemalan raspberries due to concerns about
cyclospora infection. Two years later, the U.S. allowed importation of
raspberries from those Guatemalan farms using measures to reduce the risk
of contamination (Model Plan of Excellence), thus using economic pressure to change agricultural policy in another country.67 Since the threat
posed by the Guatemalan raspberries was based upon epidemiologic evidence of association with cyclosporiasis, and not direct identification of the
infectious agent, these measures strained relations between the countries
and raised questions within the context of World Trade Organization
(WTO) agreements.
In the case of animal commerce, the Convention on International Trade
in Endangered Species of Wild Fauna and Flora banned international trade
of endangered animals, but allowed the trade of all other animals not considered endangered or threatened. 68 Following the monkeypox experience
in 2003, the FDA issued an interim final rule restricting the import, capture,
transport, sale, barter, exchange, distribution, and release of African rodents, prairie dogs, and certain other animals.69
Emerging infections pose many questions that are answered within traditional public health laws regarding disease control, isolation and quarantine, and immunization. However, emerging diseases are arising in a modern world with a better understanding of epidemiology and the transmission
of infection, coupled with a refined appreciation for human and civil rights.
Legal, social, and public policy considerations involving life style, personal
behavior, land use, property rights, agriculture, interstate and international
66
See sources cited supra note 32.
See supra text in note 35. See also Linda Calvin et al., Food Safety in Food Security and Food Trade. Case Study: Guatemalan Raspberries and Cyclospora, 10
INT’L FOOD POL’Y RES. INST. 7 (2003).
68 Convention on International Trade in Endangered Species of Wild Fauna and
Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.
69
21 C.F.R. § 1240.63 (2004); 42 C.F.R. § 71.56 (2004).
67
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
55
commerce, and travel must be addressed. For instance, the HIV/AIDS epidemic led to a reexamination of, and substantial changes to, traditional notions of privacy and confidentiality within health care regulations.
Healthcare providers have acquired increased sensitivity with respect to
privacy and confidentiality issues, which may inhibit willingness to report
evidence of emerging disease if the disease or syndrome is not legally reportable. Implementation of the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) raises concerns among
practitioners regarding potential limitations the Act would impose.70 The
Act may be thought to limit a practitioner’s capacity to report personal
health information about certain conditions and diseases, despite the specific exemption of routine public health surveillance and disease control activities from the rule.71 Syndromic surveillance, defined as the monitoring of
conditions or complaints that may be the earliest indication of disease
caused by a bioterrorist attack or a naturally occurring epidemic, illustrates
reporting limitations faced by health care professionals due to privacy laws.
Concerns regarding the reporting of personal health information before a
diagnosis is confirmed must be addressed in the development of mechanisms for syndromic surveillance.72 However, public health authority is
necessarily broad, as new diseases can, and do, emerge.73
There are many preventive measures individuals can adopt to protect
themselves from infectious diseases. Because local environmental conditions play such a large part in the risk of becoming infected with tick-borne
diseases, the maintainace of neighboring properties, community zoning,
and land use regulations may have an impact upon the health of each individual in the community.
The inter-dependence of community actions or inactions and individual
health applies to standing water and mosquito-borne diseases, such as West
Nile virus infection. Traditionally, public health authorities have maintained broad authority to abate threats and nuisances. Should such authority extend to regulate a citizen’s choice of landscaping design, water features in a garden, or management of wildlife? How should society balance
the desire to reduce deer populations as a measure for Lyme disease control
with the concerns of those who wish to protect and preserve the natural
70
45 C.F.R. § 164.512(b) (2004). See also HIPAA Privacy Rule and Public
Health Guidance from CDC and the U.S. Department of Health and Human Services, MORBIDITY & MORTALITY WKLY. REP. (Center for Disease Control, Atlanta,
GA), Apr. 11, 2003, at 1.
71
See sources cited infra note 74.
72
Kenneth D. Mandl et al., Implementing Syndromic Surveillance: A Practical
Guide Informed by the Early Experience, 11 J. AM. MED. INFO. ASS’N. 141 (2004).
73
Claire V. Broome et al., Statutory Basis for Public Health Reporting Beyond
Specific Diseases, 80 J. URBAN HEALTH 4 (2003).
56
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
habitat of animals? If pesticides are used to reduce ticks, how is the population warned about potential toxicity of the agents, and how are fears of
infection balanced against fears of pesticides? Societal values that may be
placed at a higher priority than the desire to prevent infectious diseases carry increasing weight, making traditional public health practice substantially
more nuanced in modern society than it was in its inception in the nineteenth century.
The recent experience of SARS stimulated a reconsideration of laws and
policies regarding isolation and quarantine to an extent that potential bioterrorist threats had failed to do. The result was the re-examination of policies and procedures, as well as consideration of legislation to modernize
isolation and quarantine powers.74 In considering a mechanism for applying a quarantine in twenty-first century America, whether it is prompted by
SARS or a bioterrorist assault with smallpox virus, efforts are complicated
in the form of mutiple forms, letters, and pleadings templates.75
The very limited use of isolation and quarantine over the past fifty years
has meant that public health practitioners have as little experience with the
practical aspects of applying restrictions on citizens as the citizens have in
living with such restrictions.76
A quarantined individual has been exposed to a potentially communicable disease and is not usually infectious or sick. Once an individual is infectious and/or sick, they are put in isolation. This situation raises unique
questions: How are income, sustenance, and health care provided to a person in quarantine? Who cares for children of those in quarantine?
In Toronto in 2003, healthcare workers who had been exposed to SARS,
but remained healthy, were put on home/work quarantine. They were permitted to come to work for regular shifts, but could not otherwise leave
their homes, have company, shop, or drive in cars with others. These
measures were necessary to maintain the healthcare workforce during the
SARS challenge. But, we must consider: How would a stricter quarantine
be applied to those not working in healthcare? How is the different level of
74
See Lawrence O. Gostin et al., Ethical and Legal Challenges Posed by Severe
Acute Respiratory Syndrome: Implications for the Control of Severe Infectious
Disease Threats, 290 JAMA 3229 (2003); Lawrence O. Gostin & James G. Hodge,
Public Health Emergencies and Legal Reform: Implications for Public Health Policy and Practice, 118 PUB. HEALTH. REP. 477 (2003).
75
See New Legal Documents for Use in Voluntary and Mandatory Isolation of a
SARS Patient, Massachusetts Department of Public Health, available at
http://www.mass.gov/dph/cdc/epii/broadcast/attendee_material.htm (last visited
Nov. 22, 2003).
76
See Joseph J. Barbera et al., Large-scale Quarantine Following Biological Terrorism in the United States: Scientific Examination, Logistic and Legal Limits, and
Possible Consequences, 286 JAMA 2711 (2001).
2004]
QUESTIONS POSED BY EMERGING INFECTIONS
57
comfort public health officials have regarding exposed individuals working
in hospitals versus shopping in a supermarket or working in an office explained to the public?
The potential for a widespread quarantine existed before SARS, but it
was the experience of an actual quarantine that raised many issues and
challenges to usual ideas about this most traditional public health intervention.77 The experience of SARS and the threats posed by emerging infections, such as Ebola, multi-drug resistant tuberculosis, and monkeypox, as
well as bioterrorist agents, have increased awareness of the need to deal
with fears that healthcare workers may experience and how such fears may
affect their willingness to continue working, and thereby risking increased
exposure to disease.78 Planning for such eventualities is premised on the
assumptions that staff will be ready, willing, and able to work, and in fact,
work extra hours in response to an emergency. The quarantine of
healthcare workers in response to SARS also raised questions regarding the
provision of psychosocial support to those affected by emerging infections
and public health emergencies, and who may experience stigma and frustration, in addition to fear.79
It has been one hundred years since the United States Supreme Court
handed down its landmark decision in Jacobson v. Massachusetts.80 The
Court held that mandatory immunization was a legitimate and reasonable
exercise of the state’s police power to protect the public’s health and safety,
and that certain fundamental rights may not be absolute.81 The decision,
and the conclusion that there are legitimate limitations to personal and
property rights in the face of threats to public health and safety, has been
used as a guiding principle for government action in respect to coping with
communicable diseases and has been further extended to bioterrorism pre77
See M.L. Lee et al., Use of Quarantine to Prevent Transmission of Severe Acute
Respiratory Syndrome --- Taiwan, 2003, MORBIDITY & MORTALITY WKLY. REP.
(Center for Disease Control, Atlanta, GA), July 25, 2003, at 680. See also sources
cited supra note 49.
78
See Matthew K. Wynia & Lawrence O. Gostin, Ethical Challenges in Preparing
for Bioterrorism: Barriers within the Health Care System, 94 AM. J. PUB. HEALTH
1096 (2004); C.C. Clark, In Harm’s Way: Service in the Face of SARS, 33
HASTINGS CENTER REP. 49 (May/June 2003); Henry Masur et al., Severe Acute
Respiratory Syndrome: Providing Care in the Face of Uncertainty, 289 JAMA 10
(2003).
79
See Siew E. Chua et al., Psychological Effects of the SARS Outbreak in Hong
Kong on High-risk Health Care Workers, 49 CAN. J. PSYCHIATRY 391 (2004);
Emma Robertson et al., The Psychosocial Effects of Being Quarantined Following
Exposure to SARS: A Qualitative Study of Toronto Health Care Workers, 49 CAN.
J. PSYCHIATRY 403 (2004).
80
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
81
See id. at 25, 37-39.
58
NEW ENG. J. INT’L & COMP. L.
[Vol. 11:1
paredness and response.82 However, challenges have been raised precisely
due to changes in the past one hundred years, necessitating the reexamination of the balance of personal rights versus public health and safety needs.83
Emerging infections are by no means a new phenomenon, but the context in which they occur changes over time.84 The context depends on the
demography and the organization of society. Response to emerging infections depends upon scientific evidence, but just as importantly, upon the
values societies hold: how people live, how society is viewed, the balance
of liberty, property, privacy rights, and individual autonomy with safety,
security, and public health. Thus, the understanding of, planning for and
responding to, emerging infections must be considered within behavioral,
social, economic, and environmental contexts.
The full appreciation of such considerations is an evolving process, periodically stimulated by the very events in question. The questions posed are
myriad. Experience suggests that while answers proposed address some of
the issues raised, they also give rise to more social, political, ethical, and
legal questions, that raise challenges at local, state, national, and international levels. The globalization of infectious diseases requires a globalization of the understanding of infectious diseases: not only of their biology
and epidemiology, but also of the contexts in which they occur.
82
See GOSTIN ET AL., supra note 63.
George J. Annas, Bioterrorism, Public Health, and Civil Liberties, 346 NEW
ENG. J. MED. 1337 (2002).
84
See Claire V. Broome et al., Statutory Basis for Public Health Reporting Beyond
Specific Diseases, 80 J. URBAN HEALTH 14 (Suppl. I 2003).
83