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

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

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

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

Old laws are now unconstitutional 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

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

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

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"

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

Anything Else Will Just Cause Trouble

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

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

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