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"It raises the classic public-health dilemma," says David Rosner, professor of public health and history at Columbia University. "Is a solution going to harm more people than it helps?"
In the wake of September 11, that dilemma is back with a few new twists. Two weeks ago, the federal government released a revised version of legislation the Bush administration hopes every state will pass, which would solidify government authority to enforce vaccination and isolate people exposed to infectious diseases. Though the law does not distinguish among contagious diseases that could set off the emergency powers, it seems designed to counter smallpoxthe deadly virus that bioweapons experts fear may have fallen into terrorist hands.
But while the bill lays out an emergency strategy, in which those exposed to a contagious disease are either inoculated or quarantined, the smallpox vaccine now being stockpiled by the government can endangerand even killpeople with suppressed immune systems. Under the proposed law, it's unclear how these peopleincluding an estimated 900,000 Americans infected with HIV and more than 200,000 living with transplants, as well as cancer patients and people with chronic diseaseswill be treated in the event of a true health emergency.
The Model State Emergency Health Powers Act, drafted by the Centers for Disease Control and Georgetown health policy professor Larry Gostin, would allow for forced isolation in the event of a public health emergency. Health officials would also have the power to seize hospitals and property (including cell phones, if they're jamming circuits), identify infected individuals, ration medication, and mandate testing, treatment, and vaccination. The act even allows health officials to call in the militia if they see the need.
But beyond specifying that authorities are not allowed to compel people to be vaccinated if it is "reasonably likely to lead to serious harm," the law doesn't outline protections for the growing number of immune-suppressed people who may be harmed by the vaccine. Because of advances in treating people with cancer, AIDS, and other serious diseases, "the number of [these people] is much greater than at any other time," says Joel Kuritsky, director of the National Immunization Program and Early Smallpox Response and Planning at the CDC.
Some emergency planners have focused on immune-suppressed people as threats to the general public during a possible outbreak, both because they are more vulnerable to infection and more likely to pass it on, since they emit more viral particles in their breath. Peter Jahrling, senior scientist at the U.S. Army Medical Research Insitute of Infectious Disease in Fort Detrick, Maryland, has said that "having a lot of immune-compromised people during a smallpox outbreak will be like pouring kerosene on the fire."
The situation can be even more frightening from vulnerable people's perspective. In the event of a smallpox outbreak, Kuritsky says, they and their doctors would have to decide "whether the risk [posed by the vaccine] outweighed the benefit." A June 22 issue of the CDC publication Morbidity and Mortality Weekly Report details some of these risks, citing the deaths of two HIV-infected people who participated in smallpox vaccine trials, as well as an HIV-positive military recruit who developed severe vaccinia, a life-threatening condition in which sores spread all over the body.
Because of the seriousness of these problems and their frequency (roughly 5.2 in 1000 people vaccinated report side effects ranging from rashes to encephalitis), health authorities say that even in the event of a serious outbreak they would likely inoculate only a few thousand peoplethose directly exposed to the virus and their contacts. But what might happen if some of those exposed were immune suppressed to begin with?
According to Gostin, who has also written extensively about quarantine, isolation would be a "rare but necessary" last resort. "If people were a risk to others, then they would be subject to isolation," he says. If such people were unable to be vaccinated, "we would provide care and treatment and a safe place. If they were exposed, we would place them in isolation but make sure they were given due process, food, and clothing."
But according to AIDS activists, this resurrection of quarantinea public-health relic that has fallen out of use with the taming of infectious diseases like measles, scarlet fever, and smallpoxraises serious concerns about civil liberties.
Many point to the past misuses of quarantine, which has not been used on a wide scale in the U.S. for more than 80 years. Before that, forced isolation was often applied unevenly. When a cholera outbreak was reported on a ship in New York Harbor in 1892, the Port Authority sequestered only poor immigrant passengers in unsanitary conditions below deck58 of whom diedwhile moneyed travelers were allowed to go free. In San Francisco, the quarantine set off by a bubonic-plague epidemic in 1900 applied only to Chinese businesses and homes.
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."