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Swine flu could raise constitutional issues
Scripps Howard News Service


November 04, 2009

WASHINGTON - Civil liberties advocates caution that mandatory vaccinations, forced quarantines and restricted interstate travel would not only endanger individual rights but also would be unlikely to prevent disease in the event of a severe H1N1 outbreak.

"These raise the highest constitutional problems," said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland, at a recent panel discussion.

Sharon Bradford Franklin, senior counsel at the Constitution Project, an advocacy organization for civil rights, said it's important to consider the "potential impact of individual rights" and the "legitimate scope of government power" in the event of a flu pandemic.

Last month, an order that would have required all New York State health workers to get the H1N1 vaccine created a public outcry. The mandate was rescinded after state officials said the vaccine was in short supply, but the issue of mandatory vaccination raises serious legal and constitutional issues.

"You can't force someone to get a vaccine you don't have," said Wendy Mariner, author and professor of health law at Boston University.

Mariner said that new laws imposing mandates in the event of a national emergency, such as a severe flu pandemic, are unnecessary and often create public backlash.

In 1918, a global flu pandemic swept the world, killing more than 50 million people and infecting 500 million. A new strain of the H1N1 flu virus struck the United States in April, leading President Barack Obama to declare a national emergency.

"Today, we know a lot more," said Dr. Marita Mike, health director at the University of Maryland Center of Health and Homeland Security. "We have medical capacity that we didn't have then."

But Mike said that, even though medical advances have been made since the last flu pandemic, another outbreak could cripple the population much as it did in 1918.

The World Health Organization reported 441,661 cases of infection and 5,712 deaths as of Oct. 25.

Federal quarantine has rarely been used in public health emergencies. Large-scale isolation and quarantine was last enforced during the flu pandemic of 1918-19, according to the Centers for Disease Control and Prevention. Since then, the CDC has reported only two incidents of quarantine and isolation. In 1963, a federal quarantine order was given to a person with a suspected case of smallpox. In 2007, an airplane passenger with a rare, drug-resistant form of tuberculosis was put in isolation.

Greenberger said a severe outbreak of H1N1 isn't likely, but in the case of a pandemic, state and federal governments have extensive executive emergency powers. State laws give governors the authority to contravene any law that interferes with the governor's ability to deal with an emergency. Most governors have the power to take drastic measures such as quarantining people, seizing medications, overturning laws and using martial police power.

"Just because a governor has these extraordinary powers does not mean a governor will use those extraordinary powers," Greenberger said. In fact, a governor has never used such powers in a public health emergency -- but they have used them in floods and hurricanes.

Mariner said she doesn't think these types of measures or emergency preparedness laws can prevent disease, and she critiqued the post-9/11 mentality of coercive public health tools that threaten individual civil liberties. Instead, she said the best defense against a flu pandemic is a "healthy, resilient population."

Instead of relying on emergency laws, Mariner said the government should focus on education, vaccines and access to health care.


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