Quarantine Revision and the Model State Emergency Health Powers Act: "Laws for the Common Good"
Matei, Lorena, Santa Clara Computer & High Technology Law Journal
In June 2001, The Johns Hopkins Center for Civilian Biodefense Studies hosted an indoor war game entitled DARK WINTER. (1) It was structured as a series of mock meetings of the National Security Council to evaluate the response of senior officials to a bioterrorist-induced national security crisis. (2) The participants were twelve former government officials, five representatives from the media, and fifty individuals with policy or operational responsibilities related to biological weapons. (3) The two-day exercise simulated a period of two weeks, during which an outbreak of smallpox in an American city spread to twenty-five states and fifteen other countries. (4) By the end of the simulated two weeks, the number of smallpox cases had risen to 16,000 in twenty-five states, with 1,000 deaths in the U.S. alone. (5) Key lessons learned from the DARK WINTER exercise included:
1. Leaders are unfamiliar with the character of bioterrorist attacks, available policy options and their consequences
2. Following a bioterrorist attack, leaders, key decisions would depend on data and expertise from medical and public health sectors
3. The lack of sufficient vaccine or drugs to prevent the spread of disease severely limited management options
4. The U.S. health care system lacks the surge capacity to deal with mass casualties
5. To end a disease outbreak after a bioterrorist attack, decision-makers will require ongoing expert advice from senior public health and medical leaders
6. Federal and state priorities may be unclear, differ or conflict, authorities may be uncertain, and constitutional issues may arise
7. The individual actions of US citizens will be critical in ending the spread of contagious disease--leaders must gain the trust and sustained cooperation of the American people. (6)
The DARK WINTER exercise was a hypothetical example of a public health emergency. It highlighted the precarious nature of an adequate emergency response. The United States government faces numerous deficiencies regarding national security. Those learning its lessons realize that current public health models must be reevaluated to establish concrete standards of efficient response to a medical health crisis. Furthermore, since the events of September 11, 2001, bioterrorism has been more than a hypothetical danger; it is a realistic threat, not only to the United States, but also to the entire world.
In response to growing fears of a bioterrorist attack, federal health officials and state legislatures across the country have proposed new laws. Taking the lead, the Centers for Disease Control and Prevention ("CDC") in Atlanta has drafted a model act, (7) premised on the idea that existing state laws are inadequate to confront a bioterrorism event, and should be supplemented with a more comprehensive plan that will avoid conflicts with state laws. That act, The Model State Emergency Health Powers Act ("MSEHPA" or the "Model Act"), (8) clarifies a government's responsibility to protect its citizens from the threat of bioterrorism.
Formulation of the MSEHPA has been a cooperative effort between the Center for Law and the Public's Health, at Georgetown and Johns Hopkins Universities, and the CDC. For assistance in the initial brainstorming effort, these organizations also turned to the National Governors Association, the National Conference of State Legislatures, the Association of State and Territorial Health Officials, the National Association of City and County Health Officials, and the National Association of Attorneys General.
The Model Act provides an inclusive plan that would concentrate power in state health officials, in cooperation with state governors. The Act seeks to deal with the issue of bioterrorism in the context of a public health emergency. It takes into account various dangers, "including emergent and resurgent infectious diseases and incidents of civilian mass casualties. …