Bioterror: All the Rules Change

The potential for health officials to overreact - and violate civil liberties in the process - was evident during the recent anthrax scare.

The American Civil Liberties Union is currently looking into an incident involving female employees at Michigan State University who, after receiving a suspicious letter, were made to strip naked and stand in a plastic wading pool to be decontaminated with a chlorine-bleach solution. According to the president of the local ACLU, three women objected and were told by the hazardous-materials crew that their clothes would be forcibly removed. One of the women was pregnant. The letter turned out to be harmless.

"I'm really nervous, watching the actions of a few city health directors during the anthrax scare, of giving them a law that makes them think they can do anything they want," says Ed Richards, a public-health expert at the University of Missouri. "When you enact a law like that, it's very difficult to constrain it."

Even if new powers were used only in the most dire situations, such as a smallpox outbreak, measures such as mandatory vaccinations could prove to be controversial.

States have long had the power to require immunizations, going back to a 1905 case involving a man from Cambridge, Mass., who refused to be vaccinated for smallpox, out of concern over possible side effects. The US Supreme Court ruled against him, saying his rights were outstripped by the common good.

These days, states rely on this precedent to force tuberculosis patients to take certain drugs, and to require routine immunizations for students (though 48 states allow for religious exemptions). But mass vaccination - inoculating whole cities or states in a short period - has not been attempted in decades.

Currently, the CDC's plan for dealing with a smallpox outbreak does not call for widespread vaccination, but rather a "ring" system - inoculating only those people who may have come into contact with a person who doctors say is infected. One reason is the danger of the vaccine, which can occasionally cause severe illness and even death.

In the last major smallpox outbreak, in New York City in 1947, 6.5 million people were vaccinated in less than a month. It was considered a highly successful containment. Just 12 people contracted the disease, and only two died. But six others died from the vaccine.

Today, if cities were to vaccinate people for smallpox, experts predict the percentage of deaths would likely be far higher, because of the greater number of people with weak immune systems. They point to chemotherapy patients, for example, or people diagnosed with HIV, neither of which existed in 1947. Under the CDC plan, those people would still have to be vaccinated if exposed to the virus, even though they'd be at greater risk of suffering adverse effects.

A more obvious reason the CDC is not calling for mass vaccination is that the smallpox vaccine is in short supply. The government has ordered 300 million doses, but production will take at least a year. The US now has only 15 million doses, which would have to be rationed during any outbreak.

Professor Gostin's model law, in fact, would require states to set a hierarchy of vaccine recipients, giving priority, for example, to health officials and emergency workers.

This hints at how complex the intersection of civil liberties and public health can be. It's not just about small groups within the population who may object to a given action. To be effective, authorities must also maintain a wider public trust in their fairness.

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