For days, 5-year-old Edgar Hernandez’s face was one of the most visible images in the press, although he is not the child of a famous family and is not a child actor. Young Hernandez’s notoriety came from being one of the first confirmed cases of the Influenza A H1N1 (“swine flu”) virus.
It began with a helicopter ride and an unexpected visit from a governor, who told Hernandez’s family the news. At his La Gloria home in Mexico’s Veracruz state, Hernandez quickly became the face of a public health emergency.
In recent years, the world has seen a number of public health emergencies surface, ranging from Severe Acute Respiratory Syndrome (SARS) to the Influenza A H5N1 (“avian flu”) virus. In each case, the governments of the affected countries have taken action attempting to protect the public. But the efforts to protect the people and advance the public good have sometimes led governments to curtail the rights of their citizens. These actions have raised many legal concerns about civil rights, privacy of individuals like Hernandez, property rights and the role of the legal system during public health emergencies.
U.S. courts interpret the Constitution to provide broad, general authority to the government to control the spread of communicable diseases. The courts have sanctioned detentions, involuntary vaccinations, treatment of suspected venereal disease carriers and isolating tuberculosis carriers. According to the Supreme Court, the enforcement of public health laws must have some “real or substantial relation to the protection of the public health or public safety” and confinements have to be examined with care so as not to violate a person’s constitutional rights. But what do such violations look like in today’s global climate?
With the news of swine flu spreading, and the belief that eating and handling pork and pigs could spread the disease, the Egyptian government decided to kill more than 250,000 pigs raised by farmers. Despite assurances by the World Health Organization and international scientists that animals do not spread the disease to humans, Egypt continued its efforts to eradicate the country’s pig population. Although the government provided compensation to farmers for the loss of their property, the amount of compensation was less than half the pigs’ market value.
The Egyptian Christian community, to which many of the farmers belong, believe that the largely Muslim government’s decision to kill their pigs was fueled by religion and not science. The relation between the actions and public safety are attenuated because of the poor science behind the action and the implications of improper motivation.
In the U.S., quarantine procedures have previously raised equal protection issues because in some situations socially disfavored groups or certain ethnic groups are the focus of restrictive practices. In the early 1900s, Chinese immigrants were subject to a number of resolutions that required them to be quarantined for various diseases simply because they were thought more likely to be infected than other groups. The courts struck those resolutions as violations of the Equal Protection Clause. But the issue still remains as to how far the government must go to show that the general public’s interest is truly being protected.
Earlier this year, as Chinese authorities were quarantining Mexican businessmen and travelers in the country, other countries suspended flights from Mexico and cancelled sporting events with Mexican teams. In an article published in The New York Times on May 4, the paper quoted Dr. Andrew T. Pavia, a University of Utah professor who is chairman of the pandemic influenza task force of the Infectious Diseases Society of America. He had stated, “Quarantine is a concept that dates back to when you could enter a country only at a few ports, and there is almost no country in the world where that is true anymore.”
He, along with others, thought these actions were unjustified. At the time, there were reported cases in 20 other countries. According to the Centers for Disease Control, as of June 3 all 50 states, the District of Columbia and Puerto Rico were reporting cases of swine flu infection.
Following the anthrax attacks in 2001, many states adopted laws allowing officials to quarantine individuals at the risk of criminal charges for refusing, even if there is inconclusive evidence of their illness. Some states also passed laws giving immunity from liability in negligence cases to public workers helping to contain outbreaks.
In the past decade, the media has focused on SARS, avian flu and swine flu as pandemics that may occur in the near future; however, currently the world also faces the potential for an extensively drug-resistant strain of tuberculosis (“XDR-TB”), as well as current AIDS and malaria pandemics. All of the pandemics and potential pandemics mentioned have garnered responses by world health officials and local governments in different fashions, ranging from no response to forced quarantines.
Privacy and AIDS has been an issue that local governments have struggled with. In 2003, a Cincinnati man was arrested for prostitution and charged with more serious charges because of his HIV status. The criminal case was not sealed and all details of the arrest were public. AIDS activists fought this procedure, seeking to have the records sealed because the strictest privacy should be afforded to AIDS patients. The prosecutor and other officials argued strenuously that the right to privacy is lost when a citizen puts someone else’s life in danger.
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For more information on public health law and public health emergencies, The American Society of Law, Medicine & Ethics published a national action agenda for public health legal preparedness in October 2008 (available at http://www.aslme.org/cdc). Also, last October, the University of Washington School of Law launched its new graduate degree program. The Health Law LL.M. program curriculum includes courses in medical, public health and legal ethics; research law and policy; genomics and biotechnology; global health and justice; and specific areas of health law and policy (e.g., disability law, mental health, chronic illness).
Jamila Johnson is a litigation associate in the Seattle office of Schwabe, Williamson & Wyatt. She can be contacted at 206-407-1555 or at jajohnson@schwabe.com. Assistance was provided by Jon Liou, a third-year law student at the University of Oregon and a summer associate in the firm’s Portland office. He can be reached at 503-796-7442 or at jliou@schwabe.com.
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