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Model Legislation: Balancing Civil Rights And Public Health

By Susan Muaddi Darraj

These days, Steve Teret can't get the novel Blindness out of his mind.

Teret, a director of the School's Center for Law and the Public's Health, finished reading the novel by Nobel prize winner Jose Saramago several months before Sept. 11. Blindness details a city's social collapse after an epidemic of contagious blindness. The unprepared government quarantines the infected in a mental asylum, and orders guards to shoot anyone who leaves, thus signifying how a public health crisis could potentially plunge humanity into chaos. 

"It was the most disturbing book I've ever read," says Teret, JD, MPH '79, a professor of Health Policy and Management. 

However, days after Sept. 11, Teret, Lawrence Gostin, JD, LLD, and their team were asked by the Centers for Disease Control and Prevention (CDC) to not only imagine a similar, real-life plot line occurring in the United States, but to bring order to it. Given two weeks, they worked 14 straight days to draft 35 pages of model legislation from scratch. 

A joint effort by the School and the Georgetown University Law Center, the Center for Law and the Public's Health has a unique mission to explore and enhance ways in which the law can become an effective tool for promoting the public's health. The CDC requested that the Center draft model legislation that could be adopted by states, granting them emergency powers to effectively handle bioterrorism threats. A bioterrorist attack using anthrax, smallpox, or other agents would force states to confront difficult questions. Could they quarantine whole buildings, communities, even cities? Could they forcibly separate families in an effort to isolate infected people? What if there were a shortage of hospital beds? What if drug supplies ran low? What if suicidal terrorists infected themselves to spread a disease?

Gostin, the principal investigator and also director of the Center, says that more than a dozen states have already expressed interest in implementing the legislation. 

"It's an important step for our nation, because we must be legally prepared for a major catastrophe," says Gostin, a professor of Health Policy and Management. He adds that his research shows that most state laws are "wholly inadequate" for dealing with issues of bioterrorism. 

In addition to professors Teret and Gostin, the core group who drafted the model legislation included: Julie Samia Mair, JD, MPH, assistant scientist; James Hodge Jr., JD, LLM, project director; Michael Mair, senior research assistant (Center for Civilian Biodefense Strategies); Jason Sapsin, JD, research associate; Jon Vernick, JD, MPH '94, associate professor; and several law students at Georgetown University.

"Perhaps the most striking feature of this legislation we've created is that it could essentially — in a worst-case scenario — require individuals to forgo certain fundamental, individual freedoms in the interests of public health," says Hodge. The state would be granted the right to seize property and drugs, as well as to isolate and quarantine people who have been infected with a disease. 

"Unfortunately, it would be necessary," Hodge adds, "because public health is really our front-line defense against bioterrorism." 

Teret offers another example: "What if everyone becomes infected, and the hospitals run out of beds? Where can we put ill patients?" The seizure of hotels and other buildings might become necessary.

Teret emphasizes the issue of balance: "The struggle we faced in drafting this — indeed, the motivation for creating this legislation — was to be sure we preserved the civil liberties of our citizens in a time of potential chaos, while still allowing states to effectively protect the public's health." 

The legislation also addresses another controversial issue: the handling of infected corpses following a bioterrorism attack. "You legally need the ability to cremate infected corpses within 24 hours, if it's deemed necessary for containing the disease," Julie Samia Mair says, "but what if you can't identify a body before it needs to be cremated? Those are the kinds of legal and ethical issues we had to anticipate." 

Like everyone else, Mair cites the difficulty of finding a just balance: "You need to protect the public's health, but you also want to ensure that civil liberties are not trampled upon." She shakes her head, adding, "You could really spend a year working on something of this magnitude."

The legislation is "polished and strong," Gostin says, "because we had a brain trust of the best public health minds at Hopkins and the best legal minds at Georgetown, thus ensuring the best dividends for our nation."