Bioterror: All the Rules Change

Fragile Freedoms / Part 3 of 3

Her real name was Mary Mallon, and as far as she knew, she had never contracted typhoid fever. But in 1907, when New York City health officials arrested her on charges of endangering the public health, she became forever known as "Typhoid Mary."

Mallon, an Irish immigrant cook, entered history as the first known healthy carrier of typhoid in the United States. Although she showed no signs of illness, investigators determined that she had unwittingly transmitted the disease to at least 22 people through her cooking.

She was confined on a tiny island in the East River. After three years, officials decided to release her, provided she no longer prepared food for a living. But in 1915, she was discovered working in the kitchen of a maternity hospital, where a new outbreak of typhoid fever had erupted. This time, she was sent back to isolation on North Brother Island - where she was held, under protest, for the remaining 23 years of her life.

Her story offers one of the most dramatic examples in US history of a dilemma now facing the nation: how to balance individual freedoms with the need to protect the public health.

While Sept. 11 promises many changes in civil liberties - from the use of military tribunals to facial scans at airports - some of the most profound effects on Americans may come from the government's need to protect against the spread of disease in the event of a biological attack.

Many states are already considering adopting powers that would allow them to quarantine entire cities, seize food supplies, and mandate the vaccination of large segments of the populace. At times in the past, some of these moves have ignited protest, even rioting.

For most Americans, of course, the threat posed by widespread disease is a distant memory. The last outbreak of smallpox in the United States, for example, came in 1949.

But now, the shadow of bioterrorism is forcing public-health officials to prepare, once again, for a possible deadly contagion. For the first time in a half-century, authorities are considering the legality and practicality of extreme measures, such as requiring the public to be tested for diseases or seizing property.

As a result, the balance between public health and civil liberties, which in recent decades had been tilting more toward individual freedom, may be about to swing back, in ways reminiscent of Mary Mallon's day.

Americans, many of whom have grown accustomed to challenging public-health measures - from farmers fighting state efforts to spray fields for mosquitoes, to soldiers refusing to be vaccinated against anthrax - could suddenly experience restrictions on such basic freedoms as movement.

These "are complicated issues," Jeffrey Koplan, director of the Centers for Disease Control and Prevention (CDC), acknowledged at a recent press conference. "Do we have an easy answer for them? No."

Under the Constitution, states have the primary responsibility for protecting public health. While the federal government no doubt would coordinate the response to a bioterror attack, state health officials would be at the fore.

So, in the wake of recent anthrax attacks, state officials across the country have been rushing to review public-health laws - and often concluding they lack adequate authority to combat a major bioterror event.

Some state public-health laws date back 100 years or more - and can seem almost absurd in today's context. In Massachusetts, the penalty for resisting quarantine is a $10 fine.

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.

States consider 'Model' law

"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."

authority overstepped?

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.

earning public trust

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.

Officials could have to deal, for example, with a public rush for vaccines - a phenomenon seen on a small scale during the anthrax scare, when many people hoarded the antibiotic Cipro, prompting fear of a shortage.

"What we're not talking about is how we'd deal with the raids on all the local health departments and hospitals," Mr. Richards says.

This is precisely what unfolded during a bioterrorism war game held last summer at Andrews Air Force Base. Called "Dark Winter," the exercise simulated the release of smallpox in Oklahoma City and included several government officials as participants (including Oklahoma Gov. Frank Keating). On Day 1 of the drill, state officials were confronted with 20 hypothetical cases of smallpox and began administering the vaccine on a prioritized basis. Six days later, 2,000 cases were reported in 15 states, and hospitals were overwhelmed. The scenario by Day 12: The disease was raging out of control, the nation's supply of vaccine had been depleted, and violence had broken out among people desperate to get it.

Participants concluded that maintaining public trust would be central to controlling any outbreak. Measures such as quarantining or rationing vaccines could be carried out only if people saw officials as behaving responsibly and were willing to cooperate.

Indeed, many experts say what matters most is not the powers state officials have, but how they exercise those powers. If they alienate the public by dramatically violating civil liberties, a backlash could result.

"There has to be, in all circumstances, a respect for the dignity of the individual," says Stephen Marks, a professor at the Harvard School of Public Health. If officials deemed a mass inoculation was needed, they shouldn't do it by "pounding on people's doors in the middle of the night."

Bioterror and public resources

Another bioterrorism exercise, sponsored by the Justice Department in 2000, showed how ineffective quarantines can be in the absence of public support.

Called TOPOFF, for the "top officials" tested during the drill, it simulated a release of plague in the Denver performing arts center. On the second day, with nearly 800 imaginary cases reported, Colorado officials asked Denver residents to stay home, and closed the state's borders. But authorities soon realized they didn't have the manpower to forcibly keep that many people under quarantine - or to provide them with food and medicine. By Day 3, the scenario showed panicked citizens trying to flee the state. On Day 4, riots erupted.

As a result of the exercise, the Colorado legislature fine-tuned its public-health laws. Officials hadn't been sure if they needed a court order to close state borders, and didn't know the extent to which they could enlist law enforcement. Colorado's subsequent changes have, in turn, been a major influence on the model law other states are now considering.

But a more pertinent lesson was that the law wasn't really the issue. Limited resources were.

That challenge could at the same time serve as a protection for civil liberties.

"The ability of state health departments to engage in wholesale interference with civil rights is ... limited by the fact that they've got no troops and they've got no resources and they've got no beds," says Richards. "When you talk about quarantining people in their houses, you have to be prepared to bring them food, you have to be prepared to bring them medical care, and you have to be prepared to shoot them when they come out - or at least make them think you will."

Quarantine: a bumpy history

Quarantine has been practiced ever since the days of the Black Death, and has often been met with resistance and controversy. Through the 19th and early 20th centuries, city dwellers were routinely subjected to quarantines, but in the past 80 years, no large-scale quarantines have been implemented in the US.

In 1892, cholera is detected in a number of immigrants. The New York City Port Authority quarantines ships arriving from Europe. Poorer passengers are sequestered below deck on many ships in unsanitary conditions. On one ship, 58 die.

an 1893 smallpox outbreak in Muncie, Ind., turns violent as armed guards try to keep neighborhoods under quarantine. Several health officials are shot.

In 1900, Plague breaks out in San Francisco's Chinatown district. Officials impose a quarantine but are charged with ethnic bias after only Chinese homes and businesses are included. A federal court finds the quarantine unconstitutional.

As the aids epidemic emerges in the 1980s, health officials try to close down public bathhouses and are charged with discrimination by gay activists. Many states pass laws weakening quarantine powers after some AIDS patients are unnecessarily isolated.

A Rise in drug-resistant tuberculosis cases in the 1990s prompts New York to allow involuntary hospitalization. A number of individuals are quarantined. Cases decline by more than 90 percent.

Vaccines: shifting public response

The public view of vaccines has long fluctuated between suspicion and enthusiasm - a growing belief in their ability to curb epidemics, combined with some fears about the dangers they can pose to individuals. Below are some examples of both.

the First vaccinations in the US take place in Boston in 1721, for smallpox, after clergyman Cotton Mather learns of the procedure from a slave and convinces a local doctor to try it. Most townspeople react furiously, believing that it will simply spread the disease, and one man tries to burn down Mather's house.

antivaccination leagues spring up during the 1800s, charging that the procedure is dangerous and ineffective. When New York officials forcibly detain those refusing to be vaccinated during an 1893 smallpox outbreak, an antivaccination group sues Brooklyn's health department. The suit is overthrown on appeal.

During a smallpox outbreak in 1901, Henning Jacobson of Cambridge, Mass., refuses to be vaccinated, out of concern over possible side effects. The case eventually goes to the US Supreme Court, which rules that states can mandate vaccinations.

Jonas Salk in 1954 conducts a national trial of his new polio vaccine, and it is deemed largely effective. Some 1.8 million children are inoculated, and public confidence in vaccines soars. After about 200 children are paralyzed by a faulty batch, the government begins recommending that only infants and young children, not all Americans, get the vaccine.

In 1976, concern about "swine flu" (believed to be similar to the influenza that killed 600,000 Americans in 1918) leads the government to launch a nationwide vaccination campaign. The outbreak never materializes, but thousands of people suffer adverse effects from the vaccine, and lawsuits force the government to pay damages.

Smallpox is declared eradicated in 1980 after a worldwide vaccination campaign lasting more than a decade. The US government stopped inoculating Americans for the disease in 1972.

IN 1998, a scientific paper suggests a connection between one vaccine and autism. Congress holds hearings on the issue, which show a lack of scientific evidence supporting the theory. Still, the controversy gives rise to new concerns about the safety of vaccines.

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