Bioterror: All the Rules Change

Other statutes have been amended over the years, layer upon layer, with the effect of muddling state powers. After many states revised their health laws during the 1980s to protect the rights of AIDS patients, health officials could no longer share individuals' medical records with law enforcement. Health officials say such privacy protections could impede rapid efforts to contain a disease such as smallpox. Likewise, many states now require a court order before an individual can be placed in quarantine.

"The law is, first, very old and antiquated," says Lawrence Gostin, a law professor at Georgetown University. "Second, it's hopelessly inconsistent within the states and among the states. Third, it doesn't provide the powers you'd need in a modern bioterrorist attack. And fourth, it actually thwarts public-health response."

At the CDC's request, Mr. Gostin has written a model law designed to give states specific powers in a bioterrorist attack. Under the model, state officials would be able to place entire cities under quarantine. They could take charge of food and drug supplies and condemn private property, such as contaminated buildings. They could force people diagnosed as carriers of a contagious disease to move to hospitals or stadiums. They could require tests and vaccinations.

Massachusetts, Illinois, and Nevada are among the states already considering versions of this law. Many others are expected to take up the issue in January.

One of the law's main advantages, say supporters, is that it clearly spells out all the state's powers in one section, so officials wouldn't waste time figuring out what they could and couldn't do.

"I kind of like the cleanness of that," says Nevada state Sen. Ray Rawson, who has introduced a version of the law in his committee. Nevada law now lets officials quarantine individuals, but the power may not extend to large groups.

Gostin says his law "tries to balance these very difficult issues of public health and civil liberties" by providing certain safeguards for individuals, such as ensuring they can challenge measures like quarantine in court (though only after the fact) and demand compensation for any seized property. And officials can exercise the law's special powers only in emergencies.

Still, he also implies that the nation may be entering an era in which individual liberties are no longer the top priority. "For the last two or three decades in America, we've been so concerned about what rights do I have as an autonomous person that we forgot another, equally important tradition: What duties do we all have as citizens to ensure our mutual health, safety, and security?" he says.

Yet other experts see a danger in giving state health officials such sweeping powers. They say it's unnecessary, because officials generally take steps they believe are needed, without opposition from judges, during major emergencies. If officials are handed such broad authority ahead of time, they might feel free to use some of it in noncrisis situations.

"Public-health departments have always had, at least since the 19th century, quite extensive authority," says Judith Walzer Leavitt, a University of Wisconsin medical historian and author of "Typhoid Mary: Captive to the Public's Health." "I have a lot of worries about [expanding the authority]."

What made Mallon's case so egregious, Ms. Leavitt says, is that less-severe steps - such as training her for a job other than cooking, or helping with living expenses - weren't tried before resorting to incarceration. "Using this kind of power as a last resort makes sense. But I worry about it as a first resort."

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