Sometime during the summer of 1918, an influenza virus that had recently swept through the United States and Europe evolved into a far more virulent organism. World War I was still underway when the first case of the new flu was reported in America, at Camp Devens near Boston. Within days new victims had appeared in military bases up and down the Eastern seaboard. By the time the virus hit America's cities, public health officials knew they were dealing with no ordinary strain of influenza. Young, healthy adults could feel fine at breakfast, spike a fever of 104 degrees at dinnertime, and be dead by the next morning. Morgues overflowed and cities resorted to mass burials when they ran out of coffins. Public health officials instructed citizens to wear gauze masks, which did little to block contagion. More effective were orders to shut down public gatherings. Officials closed schools and theaters, then stores and bars, and finally even churches. With the sick and the well alike confined to their homes, the virus finally burned itself out, but not before it had killed more than 600,000 Americans.
Needless to say, medicine is better equipped to handle such epidemics now. In 1918 hospitals could do little more than keep influenza victims comfortable until they either recovered or died. Today there are vaccines, antibiotics, even antiviral drugs to treat most illnesses—not to mention all the technological wonders of the modern hospital. And yet if America is better equipped medically, it is less equipped legally. In the early twentieth century officials had the power to issue and enforce the strict edicts on behavior necessary to combat a plague. And back then Americans put up with the infringements on their civil liberties. Today citizens are more wary of government, and health officials have lost much of their authority. And that's more than a little worrying, because the possibility of an epidemic spread by bioterrorism—be it smallpox, plague, or something else—suddenly seems a lot more real than it did just a few weeks ago.
Since September 11 many observers have noted that if the United States were hit with a biological weapon, our public health infrastructure would have neither the resources nor the speed to adequately respond. Nurses are in short supply. As a result of managed care, most hospitals don't even have the beds to care for the surge of patients during normal flu season, much less in the event of an epidemic. State departments of public health still track cases of Rocky Mountain spotted fever—a potential biological weapon—by asking doctors to mail in green postcards. Only a handful have a telephone line that is manned 24/7.
In short, our public health infrastructure (as opposed to our medical knowledge) is scarcely better than it was in 1918. What is far worse, however—and has received far less attention—is our public health law. Lawrence Gostin, a professor of law at Georgetown University, has just completed a survey of the public health statutes in all 50 states. They are, he says, "hopelessly antiquated. They don't even come close to a modern, coherent, systematic approach to health powers. We would be lost in a bioterrorism emergency."
Ironically, one reason our public health law is weaker than it was a hundred years ago is that it's largely the same as it was a hundred years ago—but over time societal changes have rendered once-effective laws inadequate. In the late nineteenth and early twentieth centuries, each new disease—cholera, polio, syphilis, tuberculosis—triggered new legislation, granting public health officials specific powers to identify and test the sick, quarantine or treat them as necessary, and require the rest of the population to take preventive measures aimed at stopping the spread of infection. This disease-by-disease approach worked well enough, given the times and the crudeness of medical care, but it has bequeathed us a confusing patchwork of statutes ill-suited to modern threats. Anthrax, for example, can't be passed from person to person. As a result many states' communicable disease laws may not apply to it—which means commissioners might not be able to quickly shut down flights at an airport or stop trains from running if they suspect anthrax has been released. Similarly most state health commissioners can't automatically demand information about lab specimens sent out of state in part because the practice did not exist when the laws were written. Privacy laws enacted in the last two decades prevent public health commissioners from obtaining private medical records on an ongoing basis. They can't actively monitor an uptick in prescription medications, rates of absenteeism from work, or unexplained illnesses and, as a result, they can't always notice an uptick in certain infections. They often lack the power to obtain flight manifests and customer lists, which could be needed in order to track down citizens who have been exposed to an infectious organism. To be sure, state officials can always ask a judge for that authority. But by then it may be too late to prevent a small outbreak from becoming a raging epidemic.
It would be nice to think that in a real outbreak, the federal government could simply step in and take control. But the U.S. Constitution imposes strict boundaries between state and federal authority. That becomes a problem during an epidemic, especially one caused by bioterrorism. Under the Constitution, the federal government is responsible for protecting the nation from external threats, while states have primary responsibility for promulgating public health law and enforcing it. A bioterrorism attack, of course, straddles both jurisdictions. Thus the problem. "Let's say New York gets hit with anthrax, and ten thousand are infected," says Gordon Lederman, a lawyer in Arnold & Porter's national security law practice in Washington, D.C. "I can't see how it could not become a federal problem, because ten thousand casualties would tax a state government beyond its limits. But once that federal authority comes into conflict with other authorities, the question becomes who trumps whom, and in practical terms, who takes control."
THESE WORRIES AREN’T as hypothetical as they might seem. In May 2000 the Justice Department ran a simulated bioterrorism attack called the "topoff" (for "Top Officials") exercise. In the simulation, representatives from the federal government and the state of Colorado grappled with an outbreak of Yersinia pestis, the bacterium that causes pneumonic plague. On Day One of the exercise, public health systems seemed to work fairly well. Imaginary patients began flocking to hospitals with coughs and raging fevers. As they began to die, state and federal labs quickly identified the outbreak as plague, then located the source as a bioterrorism release of Yersinia in the city's performing arts center.
By Day Two, however, events began spinning out of control. Nearly 800 imaginary cases had been reported, along with 123 deaths. State health officials instructed Denver citizens to stay at home and to avoid public gatherings, while the federal Centers for Disease Control and Prevention (CDC) recommended that the state close its borders to limit the spread of the disease. But hospitals were legally unable to prevent contagious patients from leaving, even as they were swamped with the "worried well"—people who were not yet infected but thought they might be. Public health officials soon found themselves rationing scarce antibiotics. Representatives from the state and city police, as well as the National Guard, told health officials they did not have the manpower to keep one million people from leaving their homes. By Day Three gridlock reigned as panicked citizens ignored the travel advisory and tried to flee the state. By Day Four, when the drill ended, the state was running short on food and medicine, and citizens were rioting.
Most ominous of all, nobody could figure out who was in charge. The FBI, which came in to hunt down the perpetrators, believed the state's attorney general was the highest authority. Others said it was the state health department. State public health officials were unsure if they needed a judge's permission or the CDC's before rationing medicine or closing borders. CDC epidemiologists had no authority to enlist state law enforcement. Decisions were made—or, more often, not made—by conference call, with dozens of participants. In the absence of clear chains of command, politicians quickly resorted to quarantine, the most extreme response. When police could not—or would not—enforce the quarantine, the public lost faith in government authority, sparking civil unrest. When rioting begins, says David Fidler, a professor of law at Indiana University, "The likely response becomes martial law, and then you are really moving toward the edge of the abyss."
A second simulation, carried out this summer at Andrews Air Force Base, proved equally bleak. Dubbed "Dark Winter," the exercise simulated a release of the smallpox virus in Oklahoma City. As the epidemic spilled over into surrounding states, members of the National Security Council argued with the Oklahoma governor, played by actual Governor Frank Keating, over whether to federalize the National Guard. By Day Twelve of the exercise, cases were scattered around the globe, the epidemic was out of control, and the nation's vaccine supply was exhausted.
FORTUNATELY THESE EXERCISES have prompted some much-needed—if much belated—legal work. Chastened by the topoff experience, the Colorado state department of health retooled emergency plans that were already in the process of being updated. In Washington, Lawrence Gostin is working furiously to complete model public health legislation at the behest of the national Governors Association, which demanded it on an expedited basis after September 11. Gostin will include in his legislation a list of powers, formulated earlier this year by the CDC, that public health departments need to combat a bioterrorism attack. For example, health officials must have subpoena powers to obtain private records from hospitals, pharmacies, and airline companies, plus the authority to enlist law enforcement. Gostin's proposed bill also gives officials the power to track the ill, ration medicines, and seize property—including cell phones—in order to keep citizens from jamming lines of communication.
And yet there remains one nagging question: Just how willing would Americans be to abide by such laws? As the government simulations made clear, responding to bioterrorism almost always means sacrificing some civil liberties because containing an epidemic requires gaining access to private information, seizing property, and, in the most extreme cases, using force to restrict movement and activity. And yet public health is an area in which Americans have, in recent years, forgotten that the public good sometimes comes before individual rights during times of crisis. Consider what happened in 1984 in Minnesota when the state department of health suspected an outbreak of western equine encephalitis. Carried by mosquitoes, the disease can cause lasting neurological damage in human beings; it can even be fatal. At the state's behest the Air Force dispatched planes loaded with the insecticide malathion, ready to spray the affected counties. But farmers and beekeepers objected that the spray would also kill their bees and got a judge to issue an injunction against the spraying.
Eventually the Minnesota Supreme Court overturned the order. But public health hasn't always triumphed, as anybody familiar with the ongoing fights over fluoridation of public water and compulsory childhood immunization can tell you. Aids is another battlefield: Gay activists and public health officials clashed early in the epidemic, when authorities moved to close public bathhouses amid accusations that the measures weren't about blocking the spread of the virus but about shutting down gay sex. In the end the bathhouses were closed, but only after several years and thousands more infected. Meanwhile 20 years of court battles, over everything from notification of HIV status to compulsory testing, have left America's already antiquated public health laws considerably weakened and public health authorities deeply wary of ever infringing on civil liberties, even in a crisis.
Some of the so-called "super-confidentiality" laws surrounding HIV make little sense from a public health standpoint. In most states, for instance, citizens can refuse to be tested for HIV, even if knowing their status would help someone else, such as a spouse who has been potentially exposed through sex or a doctor who has been stuck by a needle. Only two states, New York and Connecticut, routinely test newborn infants for antibodies to the aids virus. The test gives doctors a chance to save the infants' lives, since early treatment with an antiviral drug may be able to knock out the virus. But most states do not routinely test babies for HIV for fear it would violate the mother's right to privacy (since only an HIV-positive mother can give birth to an HIV-positive child). Each year between 200 and 300 babies are born infected with HIV; routine testing could prevent at least some of them from contracting the virus.
In the case of aids there are reasonable arguments about the balance between privacy and public health. But in the case of an epidemic transmitted not by intercourse but by breathing, laws fashioned in response to HIV could prove disastrous. Most state health departments are barred from sharing data about an individual's HIV status with other states or with state law enforcement. And yet such information could be crucial if, say, there were an outbreak of smallpox, the most frightening weapon in the bioterrorism arsenal. The smallpox virus no longer exists except in two official repositories and in clandestine laboratories in at least three nations. The virus spreads through the air. You can catch it simply by standing close enough to an infected person to carry on a conversation. The sicker the infected person, the more contagious he or she is. People with compromised immune systems would be acutely vulnerable to both smallpox and the smallpox vaccine, the only means currently available to thwart the disease. They would also spread smallpox far more efficiently than most victims, because they would emit more viral particles with every breath, says Peter Jahrling, chief scientific adviser to the U.S. Army Medical Research Institute for Infectious Diseases at Ft. Detrick, Maryland. "Having a lot of immune-compromised people during a smallpox outbreak will be like pouring kerosene on the fire," he says. And yet thanks to HIV privacy laws and civil liberties statutes, quarantining such people—both for their own protection and everybody else's—would be almost impossible without cumbersome court orders or a declaration of martial law.
This isn't to say we should repeal all HIV privacy laws, which, after all, reflect a genuine concern about discrimination. But it does mean that the law should give public health officials authority to exercise extraordinary powers during times of crisis—and that officials at all levels should know what authority they have and when to use it. If we don't, says Terry O'Brien, former assistant state's attorney general of Minnesota, America may well experience real-life versions of the horrifying simulations in Colorado and Oklahoma City. "Either everyone will be frozen with fear and [be] unable to act," he says, "or we are going to overreact and start shooting people on the basis of mere suspicions." Most of us have no memory of a time when epidemics like the 1918 influenza outbreak killed indiscriminately. Here's hoping we don't have to experience a real outbreak before we realize that when it comes to public health, temporarily sacrificing a little liberty may be the price for staying alive.
This article originally ran in the October 29, 2001 issue of the magazine.