David P. Fidler
excerpted from: David P. Fidler, Legal issues
surrounding public health emergencies, 116(2) Public Health Reports
S79(8) (March-April, 2001)
Dr. Evil has developed a nasty bioengineered microbe, but he wants to
make sure he uses the microbe against a very vulnerable society. He pays
a visit to the law offices of Rumpole the Malevolent to inquire about
what kind of legal system would be most vulnerable to a bioterrorist
attack. After commiserating with Dr. Evil about how bioterrorists and
lawyers are misunderstood by society, Rumpole's advice might go
something like this:
Your ideal legal target for a bioweapon attack is a country that,
first of all, has a fragmented legal system in that relevant legal
powers to resp ond to a public health emergency are divided among actors
at the national an d local levels. Federalism is, for instance, a
fragmented legal system. A federal legal system would be an attractive
target because the overlapping competencies of national and local actors
will create confli cts about who's in charge of a public health
emergency caused by a bioweapon .
While national and local authorities struggle to figure out who is i
n control, the epidemic spreads to other local areas, and the 'who's in
charge' comedy of errors begins all over again. In addition, a federal
legal structure will create cumbersome decision-making processes in
which national and local governmental entit ies and personnel need to
participate. Can you imagine, Dr. Evil, trying to control a public
health emergency through an ad hoc committee process operated by
conference calls among the relevant national and local actor s?
Second, your ideal legal target would be a federal system that has
place d public health powers predominantly at the local level. If local
governments possess the bulk of public health powers legally and
constitutionally, then the fragmentation of a federal system is exacerba
ted in the context of a public health emergency because the main
responsibil ity for protecting public health will be at the local, not
national, level. With public health powers vested primarily in local
governments, defense s against bioterrorism are only as strong as the
local governments' commitment to public health. In addition, with public
health powers at the local level, there is more room for diversity and
difference across the nation, which undermines a harmonized or
coordinated approach to a publi c health emergency. A chain is only as
strong as its weakest link.
Third, your ideal legal target should manifest a long, historical
neglec t of public health law concerning infectious diseases. Such
neglect wi ll signify that (a) local public health officials and their
legal advisers, if any, will lack familiarity and competence with the
powers that they have ; and (b) the laws on the books will not have kept
pace with the changes i n public health and legal principles, making
them difficult or even inappropriate to apply effectively in an
emergency situation.
Fourth, I would target a legal system that has not adapted the
emergency powers of local and national governments to the specific
challenges of a bioweapon attack. Local and national governments have
broad, emergency powers that would allow them to respond to a public
health emergency cau sed by a bioweapon attack. However, if the
governmental authorities have not adapted and refined such broad
emergency powers for the unique crises a bioweapon attack would create,
then the exercise of those emergency powe rs will work to your benefit,
Dr. Evil, by allowing ill-informed judgments and political panic to make
the government look inept. Faith in government collapses, and civil
chaos begins. Equally important is the fact that th e existence of broad
governmental emergency powers lulls officials into complacency that they
have sufficient legal authority to respond to a bioweapon attack.
Complacency then is the unwitting companion of chaos.
Fifth, you want to locate a legal system that has approached
emergency planning for a bioweapon attack by lumping bioweapons with
other weapons of mass destruction. Locate a legal system that has
appropriated money and personnel to train firefighters and police to be
the first-responders to a bioweapon attack.
Sixth, your ideal legal target would be a legal system that
emphasizes t he protection of individual rights and restricts
governmental powers to impinge on such rights. In such a system, the
citizenry is always wary a nd skeptical of governmental incursions on
its rights, creating a climate o f distrust that works against
governmental efforts to contain an epidemic. In this climate, citizens
may well ignore governmental orders concerning isolation, travel bans,
compulsory treatment, and quarantine. Such individual behavior will
force the government to escalate its efforts to contain the epidemic,
which might involve using military forces to implement and enforce
public health measures. Escalation of this kind wi ll fuel citizenry
distrust of the government even more, particularly if heavy-handed
governmental tactics fail to stem the spread of the epidemi c.
Seventh, I would find a legal and political system that has neglected
it s public health infrastructure and personnel for decades. Such
neglect works to your advantage, Dr. Evil, in two ways: (a) The public
health resources will be insufficient to handle the emergency created by
your microbe; and (b) when the local and national governments exercise
their broad emergency powers, they will realize to their chagrin that
they hav e insufficient resources to implement the legal authorities
they have. Imagine, for example, local and national governments
exercising their powers of quarantine only to discover they have
inadequate resources, personnel, training, and expertise to implement
the action. People forget that the 'rule of law' goes beyond, and must
go beyond, merely having legal powers on the books. The legal power to
act in the public g ood must be supported by resources, personnel,
training, and equipment to undertake effectively the legal authority
that exists.
When Rumpole finishes his monologue, Dr. Evil has only one question:
'Rumpole the Malevolent, can you identify a legal system in the world
today that has all the characteristics you describe?'
