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Law and H1N1 - July 2, 2009 #201
By Dr Dave McIntyre, Director Integrative Center for Homeland Security, 02 July 2009
Because the recent Swine Flu outbreak was a real pandemic, but with relatively mild effects, it gave us a chance to test our preparations for a more deadly strain. In our last two commentaries, we have learned that our plans are generally adequate, our resources are not, and the Department of Defense will be unable to take up the slack. This week we will review major legal issues. I will tell you more if you will give me Just a Minute for Homeland Security.
I’m Dave McIntyre, Director of the Integrative Center for Homeland Security at Texas A&M
Once again the Congressional Research Service has provided an excellent overview of an important topic in a report called: “The 2009 Influenza A Outbreak: Selected Legal Issues.” The report groups legal issues into four areas.
The first is emergency measures, to include quarantine, isolation and “social distancing” – that’s closing social gatherings, like schools and businesses. Most such powers belong to the states, with federal authority restricted to border and interstate issues. But different states interpret this differently, so policies are not uniform across the country. And other agencies have authorities as well, like airlines who can insure safety and security on flights.
The second area of concern is civil rights. While the government can curtail individual liberties when the safety of the larger community demands it, the application of that legal principle to the real world of rapidly spreading pandemics is not clear. If people who are exposed but not sick are isolated, can they sue?
Legal liability may also conflict with plans and policies. There are a number of laws now on the books that will encourage medical professionals to participate by limiting liability in time of crisis. And volunteers who provide medical and other aid may be protected to some extent. But those protections are provided in a “legal patchwork” that is quite different from state to state. The result can be confusing.
And finally, employment laws would seem to protect those who stay home from work when sick or directed by the government. But again, case law is suggestive, not crystal clear.
Of course the details of these legal issues can’t be captured in a short radio commentary. But the bottom line is that a pandemic that generates major government actions directing citizens’ lives, constraining civil liberties and impacting American business is likely to generate a wave of litigation that may itself constrain our response to the emergency. We need to foresee these challenges now, and answer them before they arise through clear legal interpretations, and if necessary, new laws and authorities. If a deadly pandemic arrives, our first call should be to the doctors, not the lawyers.
This is Dave McIntyre, Director of the Integrative Center for Homeland Security at Texas A&M, inviting you to join us again next week on Just a Minute . . . for Homeland Security.