APHA

Get Ready commentary: U.S. pandemic preparedness: Health protection or a violation of civil liberties?

This is a tie-in to an entry on APHA’s Get Ready for Flu blog, Feb. 29, 2008

Background: In January 2008, the American Civil Liberties Union released a report criticizing the U.S. federal government’s pandemic preparedness efforts for focusing too much on what it called a law enforcement and national security approach. While the ACLU report says the U.S. approach leads to a trade-off in civil liberties, others say that public health safety cannot always be reached through voluntary participation.

APHA’s Get Ready campaign invited experts on both sides of the issue to share their thoughts via the campaign’s blog. Below are their comments.

Civil liberties lay a foundation for public health

Guest commentary by Wendy E. Parmet, JD, Matthews distinguished university professor of law, Northeastern University School of Law. Parmet, an APHA member, is one of the authors of the ACLU report.

Communicable diseases such as influenza are, by their very nature, public harms. While individuals can do some things to reduce their risk of infection, no matter how ready they are, they cannot adequately protect either themselves or their family on their own. Effective protection requires a governmental response.

In the last several years, federal and state public health officials have begun planning for a pandemic. Many plans have been written, and some laws have been enacted. Unfortunately, federal planning efforts have frequently stressed the importance of legal restraints on the public — such as involuntary quarantine — and immunity for health officials. In effect, these plans presume that there is a trade-off between public health and civil liberties, as well as between public health and legal accountability.

These assumptions are mistaken and counterproductive. History shows that repressive and draconian public health measures do not work, especially when they are imposed on a mass scale. Mass restraints on movement cannot be imposed by force of law. But Americans overwhelmingly do not want to spread diseases and they are generally more than willing to abide by public health measures if health officials have earned their trust and if official advice can plausibly be followed. It’s tough to stay at home if you’ll lose your job because there are no legal protections for absences due to voluntary isolation. Thus to be effective, public health policies must nurture the public’s trust and help communities develop the capacity to reduce the spread of disease and care for the ill.

Of course, there will always be a few people who deliberately engage in behaviors that expose others to infection. Sufficient laws exist to deal with such cases. But focusing on such cases distracts attention from the critical and expensive steps — such as rebuilding the public health infrastructure and ensuring that individuals who voluntarily quarantine are provided with income support — that are necessary to prevent or mitigate a pandemic. It also threatens to undermine the trust in public health that is so vital to public health protection.

In a recent report, “Pandemic Preparedness: The Need for a Public Health — Not a Law Enforcement/National Security — Approach, the ACLU proposed four principles to guide pandemic planning:

Health: The goal of preparing for a pandemic is to protect the lives and health of all people in America, not law enforcement or national security.
Justice: Preparation for a potential pandemic — or any disaster — should ensure a fair distribution of the benefits and burdens of precautions and responses and equal respect for the dignity and autonomy of each individual.
Transparency: Pandemic preparedness requires transparent communication of accurate information among all levels of government and the public in order to warrant public trust.
Accountability: Everyone, including private individuals and organizations and government agencies and officials, should be accountable for their actions before, during and after an emergency.

A pandemic policy that incorporates these principles would emphasize community engagement and public accountability. It would assure that coercive measures are applied only as a last resort and only with full constitutional protections. It would focus on helping the public do what is necessary to reduce a community’s risk. It would show that civil liberties do not threaten our health, to the contrary, they lay the foundations for effective and democratic public health. Above all, it would make us all a lot safer from disease.

— Wendy E. Parmet

Public health powers serve as protection, not enforcement

Guest commentary by Lance Gable, JD, MPH, assistant professor of law at Wayne State University Law School and scholar with the Center for Law and the Public’s Health; and Benjamin Mason Meier, JD, LLM, MPhil, public health law project manager with Columbia University’s Center for Health Policy and Integrative Graduate Education and Research Traineeship-international development and globalization fellow with the Department of Sociomedical Sciences. The authors, who are APHA members, are affiliated with the Association’s Health Law Forum.

The recent ACLU report, “Pandemic Preparedness: The Need for a Public Health — Not a Law Enforcement/National Security — Approach,” makes several important recommendations related to the role of law in preparing for and responding to an influenza pandemic. In general, we agree with the report’s findings and cautionary warnings regarding the protection of health and civil liberties during the response to a pandemic. However, several of the criticisms raised by the authors of the report deserve further scrutiny.

The report first criticizes the public health approach by conflating the use of public health legal powers with presumptively discriminatory law enforcement. Public health powers, even coercive powers like quarantine and isolation orders, are not law enforcement tools. Rather, these powers are designed to protect the public’s health and reduce morbidity and mortality, not to exert punishment or maintain order. Coercive powers only should be used under rare circumstances, and they should be accompanied by strong due process protections. Nevertheless, public health authority may legitimately be used to help attain a scientifically-indicated public health goal that cannot be achieved through voluntary cooperation alone. Such legitimate uses of public health powers are not law enforcement.

Even where there has been restrictive and discriminatory exploitation of public health powers in the past — examples of which are laid bare in the ACLU report — these historical instances of nativist prejudice have often been rectified through subsequent judicial processes. (In the more recent case of Daniels v. Robert England, the ACLU provided important support to assist a patient in challenging a questionable quarantine order.) Through these evolving experiences with civil liberties in various social and political contexts, our judicial system has proven time and again to supply valuable constitutional checks to any overzealous application of quarantine and isolation powers.

In highlighting the safeguards built into law to balance individual liberties and collective security, the Model State Emergency Health Powers Act that the report severely criticizes — “the act used fear to justify methods better suited to quelling public riots than protecting public health” — includes almost all of the liberty protections recommended by the ACLU. Rather than acknowledge this, the authors rely on a preliminary draft of the model act that was subsequently amended after a round of widespread comments — including those of the ACLU — to limit the powers granted to public health officials and to include additional due process protections. The version of the model act that was distributed publicly has garnered widespread support from both the law and public health communities, and it has since been codified in whole or part by a large number of state legislatures to protect the public’s health in time of a declared public health emergency.

A second criticism in the report — albeit one outside the purview of law — is that public health actions would be “ineffective in stopping the spread of disease and saving lives.” Since the dawn of our understanding of disease transmission, public health authorities have toiled to find methods to eradicate disease, and it has become clear that many of their methods of social distancing are effective in abating outbreak severity. The current “all-hazards” approach, condemned in the ACLU report for its broad and general application to multiple potential public health emergencies, does not, however, commit public health officials to a specific, inflexible course of action. With pandemic planning coordinated through the U.S. Department of Health and Human Services, public health officials are empowered under the all-hazards approach to use their professional discretion within this framework to mitigate the harm caused by a pandemic in coordination with other professionals.

While there continues to be great need to improve transparency, communication and community engagement in federal and state pandemic preparedness programs, these tactical obstacles do not provide sufficient justification to neglect proven methods in the battle against disease. The ACLU report suggests that many valuable efforts to improve pandemic planning — such as reinforcing the public health infrastructure — have been neglected to develop coercive pandemic plans instead, which is a legitimate criticism given that public health infrastructure has long been under-funded and under-recognized. But the authors present an unnecessary choice here. The need to improve public health infrastructure does not obviate the need for emergency planning, but rather the two initiatives should proceed simultaneously and in a coordinated way.

It is not without deep humility that public health authorities — the sentinels against what disease may come — exercise their coercive authorities based upon scientific principles and preventive best practices. Given the vital importance of freedom from disease that is implicit in the all hazards approach, it is essential for authorities to apply all constitutional means necessary to protect the common good while taking steps to protect individual rights.

— Lance Gable and Benjamin Mason Meier

Visit APHA's Get Ready for Flu blog to weigh in on the issue and post your comments.

Photo caption and credit: Negative stained transmission electron micrograph showing recreated 1918 influenza virions. The 1918-1919 flu pandemic is estimated to have killed as many as 50 million people worldwide. Photo by Cynthia Goldsmith, courtesy CDC PHIL.