Legal News

Law in the Time of Swine Flu

By Ashby Jones

When a potentially deadly epidemic threatens a population, should the government be able to suspend individuals’ rights if it is deemed to be in the public’s interest?

That’s the question asked by the WSJ’s Amir Efrati in the paper’s Law Journal column today.

It’s a debate that began taking shape recently alongside the hundreds of A/H1N1 flu cases that emerged across the U.S. The outbreak prompted several states to invoke emergency measures, such as closing schools. And others are considering enacting new and controversial rules.

After the anthrax attacks of 2001, nearly half the states in the U.S. adopted provisions of a law that allows officials to order individuals to be quarantined and charge them with criminal misdemeanors for refusing the order, even if it isn’t clear that they are ill.

Another controversial provision passed by nearly half of U.S. states grants public-health workers immunity from lawsuits by individuals who are injured due to negligence of the workers during an outbreak, according to the center. Florida authorizes officials to forcibly vaccinate or treat individuals for a disease if the state cannot otherwise quarantine them.

Critics say these provisions take a law-enforcement approach to outbreaks and treat people, not the disease, as the enemy. The new laws “assume that people will not take care of themselves and . . . seems to assume the government should have power to force people to do whatever it wants them to do,” says Wendy Mariner, a professor of public health at Boston University.

But James G. Hodge, a public-health professor at Johns Hopkins University who helped draft the quarantine-related law that many states adopted, says the recently passed measures have built-in protections, including the ability to challenge forcible quarantine.

Still, he admits such laws can step on liberties. “The government does have an immediate responsibility to protect the public during times of emergency,” he says. “Some civil liberties may have to take a back step as we deal with these issues.”

Full post as published by Law Blog - WSJ.com on May 07, 2009 (boomark / email).