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The modern-day quarantine laid out in the new law is likely to be similarly abused, according to civil libertarians. "It's a recipe for discriminatory application," says Donna Lieberman, executive director of the New York Civil Liberties Union. Lieberman points to a section of the law that grants the power to isolate and quarantine a broad swath of "individuals or groups" who have not been vaccinated, treated, or tested. "We are concerned that emergency powers will be used to target minority groups, whether they be gays or people of color or those perceived to be most at risk of infection."
Advocates contend the rounding up of certain groups, were it to happen, would be doubly unfair. "This isn't a situation in which people are unwilling to comply with a requirement," says Tanya Ehrmann, director of public policy at AIDS Action in Washington, D.C. "It's that the vaccine would kill us. What are we supposed to do?"
Perhaps the most cutting criticism of quarantine comes from the author of the emergency health powers bill himself. "It is probable that a population exposed to a biological weapon will have dispersed well beyond any easily definable geographic boundaries before the infection becomes manifest and any disease containment measures can be initiated" is how Gostin and his colleagues summed up the dubious effectiveness of quarantine against bioterrorism in a recent issue of the Journal of the American Medical Association.
Nevertheless, emergency health bills seem destined for passage across the country. In New York, Richard Gottfried, chair of the State Assembly's health committee, is planning to hold public-comment sessions on the proposed legislation next month. Criticism of the bill already has sparked revisions. A first versionwhich actually made it to the Assembly floor in Octoberleft open the possibility that existing health problems such as AIDS and hepatitis could be considered medical emergencies, giving states the authority to mandate testing and reporting, regardless of existing law. Gottfried is confident that this version of the bill will not pass and that a more measured one ultimately will. Calling Gostin's draft "an excellent starting point," Gottfried maintains that it is necessary to update the state public-health code, sections of which are more than 50 years old.
That law already gives health commissioners the power to quarantine entire buildings and even whole towns. As recently as 1992, when drug-resistant tuberculosis was on the rise, the state health commissioner invoked this power, routinely filling locked wards at Bellevue with patients who were unwilling or unable to take their TB medications. What's more, state law still includes a version of the provision that allowed Typhoid Mary, a turn-of-the-century food preparer who refused to wash her hands, to be exiled to an island near what is now La Guardia Airport.
Given these already vast powers, some question the necessity of the emergency bill. When asked whether he wanted more power to deal with the anthrax threat and other unprecedented health concerns that have come up since September 11, Wilfredo Lopez, general counsel of the city health department, replied, "No. The health authorities have always had the authority to isolate and quarantine. We don't need new legislation to provide that authority."
George Annas, chair of the health law department at the Boston University School of Public Health, agrees. Annas says September 11 should have convinced lawmakers that health care workers and patients need not be forced to act in the public's interest. "Now we know how people react, and they react really well on their own," says Annas. "In a bioterrorism event, the American public is not the enemy."
Yet, as with the federal anti-terrorism legislation drafted since the country entered its security panic, the Emergency Health Powers Act is harnessing legitimate fears to fuel restrictive measures. Ultimately this reflex can backfire, according to Catherine Hanssens, staff attorney of the Lambda Legal Defense and Education Fund. "The only way for a public-health system to work is through the trust of the public," she warns. "You need people to feel safe accessing medical facilities where infectious diseases will be detected. You can't just lock everybody up."