Quarantine Law Revision: A Danger to the Public Health

1. Quarantine Law Revision: A Danger to the Public Health Edward P Richards, JD, MPH Director, Program in Law Science and Public Health Professor of Law LSU Law Center http://biotech.law.lsu.edu/cphl/slides/cdc-2005-quarantine.htm

2. The Legislature as Factory • The media, and too many legislators, see the legislature as a factory • They measure their output in laws • They pass laws to deal with media or lobbyist driven issues • Little regard to whether the issue is real or the law will make things better

3. Reasons to Revise Emergency Quarantine Laws • Not enough authority to take emergency action • Old laws are now unconstitutional • No coordination between state agencies • Civil libertarians want to limit the powers of the health department • Plaintiff’s lawyers want to be able to sue in the aftermath of a disaster

4. Not enough authority to take emergency action • Every state had these powers at least as late as 1970 • Many used them into the 1950s, with polio being the last example • Almost all had used them earlier • Classic police powers, unless you gave them away

5. No court has declared emergency public health powers unconstitutional This court is not going to be the first No judge will stand in the way of emergency actions under the police powers Old laws are now unconstitutional

6. No coordination between state agencies • This is more of a political issue than a legal issue • All states passed comprehensive emergency preparedness laws in the 1990s to comply with federal mandate • At most, a few technical additions to these laws were all that was necessary to solve the agency coordination issue

7. Civil libertarians want to limit the powers of the health department • Since the 1980s, there has been a push by civil libertarians of all stripes, not just AIDS activists, to limit the power of the health departments • Since no one lobbies for public health powers, some legislatures gutted their public health powers in the 1980s because it was the path of least resistance • Just like fluoridation in many states

8. Plaintiff’s lawyers want to be able to sue in the aftermath of a disaster • Plaintiff’s lawyers are the enforcement arm of public health law restrictions • Most public health law revisions create more opportunities to sue the agency • The Model Act is loaded with litigation gotcha’s • This is called "Making the Agency More Responsible"

9. What should an emergency powers law look like? • DO WHATEVER YOU NEED TO DO TO PROTECT THE PUBLIC HEALTH • THE GOVERNOR WILL MAKE SURE THE OTHER AGENCIES HELP • USE YOUR DISCRETION • PASS ADMINISTRATIVE REGULATIONS IF NEEDED • TELL US WHAT WE NEED TO DO AHEAD OF TIME

10. Anything Else Will Just Cause Trouble

11. What About Agency Responsibility? • You cannot cure incompetence with law, you have to appoint better people • If you do not trust the governor, elect a new one

12. Bottom-Line • No law is a substitute for knowing what to do and have the resources to do it • Public health law needs more imagination, not more law • If you cannot convince the public that they need to follow you, you cannot do it with a law or a gun

13. References • See: http://biotech.law.lsu.edu/cphl/slides/cdc-2005-quarantine.htm