James Hodge, Jr
Excerpted from: James Hodge, Jr., Bioterrorism Law and Policy: Critical Choices in Public Health, 30
Journal of Law, Medicine and Ethics 254 (Summer, 2002)
Given the nation's current level of preparedness for bioterrorism, a large- scale bioterrorist attack
would be unprecedented in its impact on morbidity and mortality in the U.S. population. The
limited, intentional spread of anthrax has shown that public health (and other) authorities are not
fully prepared to handle a large-scale bioterrorism event.
Preparing for a bioterrorism event
should become a central mission of federal, state, and local public health, law enforcement, and
emergency authorities. As part of this mission, the public health community, law- and
policymakers, and society in general must address a series of critical choices.
Understanding the duty of government to protect the public health
Perhaps the most important choice is also the most difficult to make: What is the government's
duty to protect the public health in response to a bioterrorism event? Few discount the
responsibility of government to respond to a bioterrorism event, but what is the extent of this
response? Consistent with the traditional police powers of state governments to protect the
health, safety, and general welfare, government's duty to protect the public's health may be viewed
as comprehensive and extensive.
This includes virtually any governmental action needed to
control the threat in the population. Thus, to fulfill its responsibility to ensure the public's health,
state public health authorities could (as they have in the past) temporarily constrain certain civil
liberties, require private sector participation in public health objectives, shut down potentially
harmful industries, destroy contaminated property, deport or prevent the entry of individuals who
may infect others, ration supplies, and control the flow of information.
Do governmental duties to protect the public's health allow public health authorities to go
further? Bioterrorism experts suggest that the intentional release of smallpox through just a few
outlets could quickly spread the disease and leave hundreds of thousands of unvaccinated
Americans dead in a few months.
At the apex of this type of human tragedy, can authorities
temporarily ignore constitutional principles that respect individual liberties (e.g., rights to due
process, travel, assembly, or privacy) or maintain the structure of government (e.g., federalism or
separation of powers)? Concerning the latter powers, for example, can federal health authorities,
who lack broad police powers, command state public health authorities to participate in a federal,
national response to a bioterrorism event that is limited to one state (and thus not seen as an
interstate matter or a threat to national security)? The federal government may lack the
constitutional power to do this under existing interpretations of federal commerce powers
consistent with principles of federalism.
Can we choose to ignore such legal interpretations to
accomplish public health objectives? In reality, it is unlikely that any bioterrorism event, even one
that it initially localized to one state, would be viewed solely as a state matter when it is highly
predictable that the bioterrorism agent will spread to other states.
Declaring a public health emergency
Responding to a bioterrorism event may require public health authorities to exercise broader
powers than they traditionally employ. Who should choose when to declare a public health
emergency and under what criteria? Many state legislatures presently fail to specify whether a
bioterrorism event may justify a state of emergency status, leaving this decision to executive
authorities. Though state executive authorities need some discretion, statutory laws must better
define the conditions for declaring public health emergencies. Otherwise, a state of emergency
may be called unjustifiably.
The Model State Emergency Health Powers Act gives public health authorities the ability to
exercise enhanced powers to protect individuals and manage property upon the declaration of a
public health emergency by the state governor. The Model Act broadly defines a "public health
an occurrence or imminent threat of an illness or health condition that: (1) is believed to be
caused by bioterrorism or the appearance of a novel or previously controlled or eradicated
infectious agent or biological toxin; and (2) poses a high probability of any of the following
harms: (a) a large number of deaths in the affected population; (b) a large number of incidents of
serious permanent or long-term disability in the affected population; or (c) widespread exposure
to an infectious or toxic agent that poses a significant risk of substantial future harm to a large
number of people in the affected population.
Thus, under this definition, the declaration of a public health emergency may follow (1) the
occurrence or imminent threat of an illness or health condition, (2) caused by bioterrorism or the
appearance of novel or previously controlled diseases through any means, (3) that poses a high
probability of a significant number of current or future deaths or disabilities. These criteria serve
as guides, but may allow for the declaration of a public health emergency for bioterrorism events
that do not justify restrictive public health controls. Consider, for example, the definition of
"bioterrorism" used in the Model Act:
the intentional use of any microorganism, virus, infectious substance, or biological product that
may be engineered as a result of biotechnology, or any naturally occurring or bioengineered
component of any such microorganism, virus, infectious substance, or biological product, to cause
death, disease, or other biological malfunction in a human, an animal, a plant, or another living
organism in order to influence the conduct of government or to intimidate or coerce a civilian
On its face, this definition might include the actions of persons who have recently attempted to
infect others with anthrax through the mail. This may be unlikely, however, because their actions
may not pose "a high probability" of a large number of human deaths or incidents of serious
permanent or long-term disability, as defined under "public health emergency." From a public
health perspective, this limited interpretation of the criteria for declaring a public health
emergency may be preferable. It would be unwise to declare a public health emergency for an
event that involves an infectious agent, but does not otherwise pose a significant risk to the
Consider, for example, an individual with HIV who intentionally tries to spread the virus to
dozens of others through his own risky behavior (e.g., unprotected sex, unsafe sharing of needles
for injecting drugs). Numerous individuals have attempted to intentionally infect others with HIV
in documented cases across the United States.
Their activities probably were not motivated by
an intent to "influence the conduct of government." Yet, depending on how a governor, or a court
reviewing the governor's authority, may define what it means to "intimidate" or "coerce," or what
constitutes a "population" (is it the population of a state, a county, a city, or a neighborhood?),
the individual with HIV may be said to be engaging in bioterrorism. Depending on whether there
is a high probability of a large number of human deaths or disabilities as a result, a governor could
declare a state of public health emergency pursuant to the Model Act. This is problematic because
(1) public health and law enforcement authorities have not traditionally viewed such persons as
bioterrorists, but rather as mere criminals; and (2) declaring a public health emergency in these
cases is an extreme response to a limited public health threat.
Additional refinement of the criteria for responding to a bioterrorism event through the
declaration of a public health emergency is important where infringements of civil liberties and the
legitimacy of public health activities are at stake. The criteria may be strengthened by employing
more restrictive measures during a public health emergency depending on the severity of the
Defining the roles of federal, state, and local public health authorities
There is no central public health system in the United States. Instead, a collaborative workforce
of federal, state, and local authorities work in conjunction with other inter-level agencies (e.g.,
environmental protection agencies; departments of housing, labor, or civil rights) to accomplish
public health outcomes. In this system, public health roles and responsibilities of the federal, state,
and local levels of government are complex and unclear. As stated above, state public health
authorities act pursuant to broad police powers that authorize the government to act in the
interests of protecting or promoting the health, safety, or general welfare of the population. Some
public health functions are delegated by states to local governments. A federal agency's power to
act in the interest of public health is, comparably, more limited in the use of authorized powers. It
must rely on its delegated authority pursuant to Congress's powers to protect national security,
regulate interstate commerce, tax and spend, or promote the constitutional principles of the
Fourteenth Amendment (e.g., due process, equal protection).
A large-scale bioterrorism event will accentuate existing uncertainties in the distribution of
public health powers.
It may also prove to be a catalyst for redefining roles for the future. The
critical choice for public health authorities is not to decide where the power to protect the public
health lies or which level of government has the primary power to act, but rather where the
leadership to respond to a bioterrorism event will derive. If leadership capacity is properly
developed, public health authorities can use their respective powers to bring about desired goals.
Through agencies such as the Department of Health and Human Services (DHHS), its subsidiary
Centers for Disease Control and Prevention (CDC), and the newly created Office of Homeland
Security, the federal government has taken a leadership role in response to existing and future
There are many reasons state and local public health authorities might
defer to this leadership initiative. First, the federal government has greater financial resources at
its disposal to respond to a bioterrorism threat.
Second, it may be in a better position to
negotiate the price of needed vaccines, drugs, or supplies, or to suspend the patent rights of
high-demand medications. These techniques were recently used by President George Bush and
DHHS in negotiations with the German drug company Bayer, concerning the sale of Cipro, the
antibiotic used to treat anthrax.
Third, most significant bioterrorism threats will exceed the
boundaries of any single state, thus requiring a national, coordinated response. Fourth, the federal
government may be better able to rapidly develop personnel and institutional expertise in
monitoring and identifying the existence of new or emerging infectious pathogens. Fifth,
bioterrorism may also constitute a threat to national security (the protection of which is
specifically a federal responsibility).
Finally, imminent warnings of bioterrorism activity may
come through national intelligence or federal law enforcement agencies that can coordinate public
health responses through federal agencies.
Choosing to assign a primary leadership role to the federal government for responding to
bioterrorism threats does have its drawbacks. Federal public health authorities may be slowed by
inter-organizational or bureaucratic problems.
As well, they are not well-positioned to serve on
the frontline of defense to a bioterrorist attack. State and local public health authorities, in
conjunction with private sector health-care workers, will in most cases be the first to detect
potential bioterrorism activity through effective surveillance. Federal authorities may facilitate
detection by sharing resources or intelligence data. However, detection of a potential bioterrorism
threat through state and local public health authorities is distinct from the response functions of
the federal government. Clarifying these roles will improve response capabilities and public
accountability over time.
Investigating bioterrorism from the public health or criminal perspectives
Beyond setting roles and responsibilities among the various levels of government is the need for
public health authorities to choose how to coordinate with law enforcement and national security
authorities. Unlike the spread of naturally occurring diseases that can be monitored and controlled
exclusively through public health authorities, a bioterrorism event always features an unlawful
element. Bioterrorism, by definition, is the product of criminal activity. Existing and newly passed
federal antiterrorism laws, for example, criminalize the mere possession of certain biological
Every bioterrorism event thus involves a criminal investigation that is outside the
purview of public health authorities. How should public health and criminal authorities choose to
collaborate? Should they collaborate at all?
From either side's perspective, clearly they should collaborate. Public health and criminal
authorities need to know of potential or actual health threats to the population in order to take
steps to prevent or mitigate threats. Each can learn from the other about these threats without
jeopardizing their differing central missions, provided that the exchange of information is
confidential, accomplished through high-ranking personnel, and consistent with existing federal
intelligence laws and federal or state privacy laws that may limit the sharing of some data.
Second, after a bioterrorism event has materialized, should public health authorities assist
criminal investigators at the federal, state, or local level? Prevailing public health practice suggests
they should not. Public health authorities resist participating in criminal investigations primarily
because there is the potential that public health authorities could be seen by community members
as health police. Yet, prevailing public health practice does not typically involve the spread of
disease through criminal activity. In some cases where criminal activity has been at the source of
potential infection (e.g., intentional spread of HIV, intentional contamination or pollution of air or
water), public health authorities have worked with criminal investigators in limited ways to stymie
a public health threat.
Bioterrorism events may justify a greater working relationship between
criminal and public health authorities that the public may not only understand, but support.
If public health and criminal authorities must work in collaboration to control a bioterrorism
event, who takes primary jurisdiction over an investigation, given an outbreak? In many of the
places where anthrax exposures recently occurred, criminal authorities quickly asserted their
jurisdiction over exposure sites to gather evidence and any other facts needed for their
investigations. The potential for public health and criminal authorities to clash in executing their
responsibilities is evident, especially where the primary criminal or intelligence authorities may be
federal (e.g., the FBI, the Central Intelligence Agency), and the responding public health officials
are primarily state or local. The only choice for public health officials in these circumstances may
be to defer to law enforcement or intelligence authorities for a period of time as the investigation
proceeds, but to encourage collaborative sharing of data to allow both sets of authorities to
accomplish their respective goals.
Restricting individuals for the sake of public health
During a bioterrorism attack that involves the potential for mass casualties or disabilities, public
health authorities may need to employ powers that restrict individual activities and behaviors. The
Model Act, for example, allows public health authorities to quarantine or isolate persons believed
to be exposed to or infected with a contagious disease during a public health emergency.
addition, authorities can encourage persons to be vaccinated or treated where necessary to
prevent the spread of a contagious disease. Persons who refuse to be vaccinated or treated may, if
needed, be quarantined or isolated.
Such measures have traditionally been used by public health authorities to control the spread of
contagious disease. Few question their potential value in accomplishing the same, despite their
potential to infringe on human rights. The critical choice for public health authorities during a
bioterrorism emergency is how to balance these restrictive measures with civil liberties.
may be strong legislative and public support for the use of highly restrictive powers during a
bioterrorism crisis. Yet, constitutional principles and public health practices emphasizing an ethic
of voluntarism intimate that not every restrictive measure can be taken. Professor Lawrence O.
Gostin has summarized the modern constitutional criteria for exercising confining public health
A compelling state interest in confinement. Public health authorities must have a compelling
interest that is substantially furthered by civil confinement. Only persons who are truly dangerous
(i.e., pose a significant risk of transmission) can be confined.
A "well-targeted" intervention. Interventions that confine individuals must be well-targeted to
accomplishing public health objectives. Thus, interventions that are over- or underinclusive may
be constitutionally impermissible if they deprive individuals of liberty or equal protection without
justification. For example, the quarantine of every person within a geographic area is
overinclusive if some members would not transmit infection. Underinclusive interventions would
restrain some, but not all, potentially contagious persons, and thus be open to criticisms of being
arbitrary or purposefully discriminatory.
The least restrictive alternative. Public health authorities should not resort to civil confinement
if they can achieve their objectives through less drastic means (although it is not likely that they
have to use extreme or unduly expensive means to avoid confinement).
Procedural due process. Persons subject to confinement for public health purposes are entitled
to some form of procedural due process depending on the nature and duration of the restraint.
The Model Act requires a court order prior to the isolation or quarantine of any individual, unless
emergency circumstances demand otherwise. In all cases, individuals have the right to a hearing
and counsel to contest their confinement.
Allocating scarce resources
In virtually any widespread and rapidly developing bioterrorism event, available public health
resources will quickly be taxed. Scarce resources may include physical goods (e.g., vaccines,
medical treatments and supplies, hospital beds, isolation or quarantine facilities), personnel (e.g.,
physicians, nurses, other health-care workers, epidemiologists, lab technicians), and services (e.g.,
laboratory testing, mental health counseling). Attempts to hoard existing supplies or personnel by
competing governmental units or private sector groups may be expected. The private sector may
be disinclined to donate its facilities for public health goals, or participate in the vaccination,
treatment, or confinement of exposed or infected individuals. Concerning these issues, the Model
Act allows state executive authorities to confiscate hoarded supplies, take possession of facilities
or other property for public health purposes, and seek the assistance of medical personnel during a
public health emergency.
A critical and unresolved choice for public health authorities is how to allocate scarce resources.
There is no uniform, central proposal governing the distribution of limited resources during a
public health emergency. In fact, such a proposal may be ill-advised. Public health authorities may
need the discretion, depending on the circumstances of the specific bioterrorism event, to decide
how best to allocate limited resources. Ad hoc allocation decisions, of course, leave open the
possibility of egregious, unfair, or discriminatory distributions of limited resources. Is it
predictable that: (1) wealthier individuals (or nations) will have access to potentially life-saving
treatments over persons of lesser wealth; (2) persons in the military will be vaccinated before
civilians; or (3) public health investigators will attend to health threats to legislators over other
Each of these choices, which are based on actual decisions made during
the recent anthrax exposures in the United States, may be supported or contested on various
legal, political, and ethical grounds.
Public health and other governmental authorities must be guided by a fair set of principles in
making their allocation decisions. These principles include:
Promoting the public's health. Any decision relating to allocating scarce resources during a
public health emergency should be principally motivated by the need to promote the public's
health to the highest extent possible, and not by outside political or social pressures.
Providing incentives to help. To provide incentives to individuals to participate in public
health efforts, certain resources may be allocated to protect the health of public health personnel
or health-care workers (and their families) working to control the spread of disease or treat
. Respecting each
individual. Distribution of limited resources may naturally tend to favor
persons in government or those with sufficient wealth or stature in the community. Public health
authorities need to determine a method of distributing resources evenly across at-risk populations
to protect the public's health. Specific care should be taken to avoid making decisions that
discriminate against equally situated individuals.
Prioritizing immediacy over potential. The distribution of limited vaccines or treatments
should be made with consideration of the immediate health consequences to affected populations
rather than the potential impact on unaffected groups. Thus, for example, if a particular group of
individuals living in one county of a state is presently susceptible to smallpox infection due to a
localized outbreak, those persons should be vaccinated to the exclusion of other state residents
who may be vulnerable in the future, provided such vaccinations are consistent with controlling
These principles will not resolve every difficult question, but they may provide some guidance as
public health authorities struggle to decide how to allocate dwindling resources during an