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Thomas B. Cole, MD, MPH

JAMA. 2000;284:944-948.

If a biological weapon were released somewhere in the United States tomorrow, the public health emergency response would be swift and effective. Or would it?

In an ongoing series of articles published in JAMA, the Working Group for Civilian Biodefense, a group of experts representing research, government, military, public health, and emergency management institutions and agencies, has made recommendations for medical and public health measures to be taken following an attack with biological agents such as anthrax (JAMA. 1999;281:1735-1745), smallpox (JAMA. 1999;281:2127-2137), or plague (JAMA. 2000;283:2281-2290). Recommendations for vaccination, treatment, isolation, and hospital infection control are included.

Unfortunately, said Lawrence O. Gostin, JD, LLD, of the Georgetown University Law Center, in a recent interview, the authority for carrying out these recommendations is not clear.

Until recently, said Gostin, lawmakers never examined the legal authority for a response to bioterrorism. When the authors of the US Constitution were reserving public health powers to the states, all epidemics were local. Today, he said, "laws are so antiquated and unclear that no one even knows what our powers and duties are." For example, said Gostin, it isn't clear whether any legal authority has the power to force people to be vaccinated, treated, quarantined, or isolated. It isn't clear whether hospitals can be confiscated, or doctors can be compelled to triage and treat patients.

UNDIVIDED RESPONSIBILITY

These powers will almost certainly be needed in the event of a bioterrorist attack, said Michael T. Osterholm, PhD, MPH, a member of the Working Group for Civilian Biodefense. Osterholm, who is chief executive officer of ican, Inc (Infection Control Advisory Network) and former state epidemiologist for the Minnesota Department of Health, agreed with Gostin that the governmental authority for an effective response to bioterrorism is not clear. Citing the 1995 Presidential Decision Directive 39 of the US Policy on Counterterrorism, Osterholm warned that the Federal Bureau of Investigation and the Federal Emergency Management Agency have been given overlapping responsibilities for investigating terrorist actions and managing the consequences of bioterrorist strikes (JAMA. 1997;278:362-368).

Source: Federal Emergency Management Agency. Federal Response Plan, Terrorism Incident Annex. Washington, DC: Government Printing Office; 1999:TI-2. Available at: http://www.fema.gov. Accessed July 9, 2000.

In practice, said Osterholm, it will be impossible to divide these responsibilities. "Whoever is trying to figure out who did it is going to be right in the middle of trying to respond to it," he said. "No one really knows who the hell is going to be in charge."

Calling out the troops won't work either, said Osterholm, who has researched these issues for an upcoming book entitled Living Terrors: What America Needs to Know to Survive the Coming Bioterrorist Catastrophe (Delacorte Press; in press). Opinions of Pentagon lawyers, federal statutes, and recent experience with the use of federal troops to control civil disorder suggest that the military, including the National Guard, lacks the authority and expertise to police civilian populations in the event of a bioterrorist attack, he said. At the state level, health directors may have the authority and expertise to act in public health emergencies, but they have no enforcement authority, added Osterholm. Even governors typically have authority over only small numbers of law enforcement officers, such as highway patrol officers, he pointed out.

Public health emergency authority at the state and local levels is blurry, agreed Jill D. Moore, JD, MPH, assistant professor of public law and government at the University of North Carolina Institute of Government in Chapel Hill. Recalling that state and local governments had to coordinate their efforts to respond to public health problems associated with inland flooding after Hurricane Floyd in 1999, she said, "Crossing county lines can be tricky." At the state level in North Carolina, the health director has the authority to compel vaccination and abate imminent hazards, said Moore, but she said she is unaware of any authority to confiscate hospitals.

CDC COLLABORATIVE FORMED

Jurisdictional issues often take time to work out, but in the event of a bioterrorist attack, said Osterholm, there is no time. Fortunately, experts in public health law are mobilizing to work out these issues in advance, explained Richard A. Goodman, MD, a senior advisor for science and policy at the Centers for Disease Control and Prevention (CDC). Responding to a 1988 report of the Institute of Medicine that questioned the legal foundation for effective public health practice, the CDC has organized a Collaborative in Public Health Law to enlist the expertise of public health practitioners, researchers, legal advisors, and policymakers. The impetus for this, said Goodman, was the CDC's awareness that existing legal authority may be insufficient to respond to an emergency resulting from terrorist use of biological or chemical agents.

However, the goals of the collaborative are even broader than bioterrorism response. The collaborative, along with CDC's internal Public Health Law Program, will attempt to ensure "public health preparedness through effective legal authorities, expertise, and competencies, and information for public health professionals, public officials, and the legal community," said Tony D. Moulton, PhD, associate director for policy with the Public Health Practice Program Office at the CDC. The idea of a collaborative recognizes the interest of many groups in studying the use of laws as tools of public health practice, he said. "We thought these efforts should be linked in some fashion."

In effect, said Goodman, this linkage may create a new legal foundation for public health practice. Imagine, he said, practicing medicine without a course in physiology or pathology, and yet public health practitioners are expected to face policy challenges without any more background than a college political science course. To help remedy this lack of basic training, he said, the Public Health Law Program at the CDC plans to offer training and fund extramural research in public health law.

Gostin said the efforts of the CDC and the Public Health Law Collaborative reflect a new historical perspective on law and health. For decades, he said, health care services have dominated the agenda in medicine, law, and ethics, but now the emphasis is shifting to public health law. Gostin noted that when the public health infrastructure in the United States is working well, it is seemingly invisible: "Public health is never on the radar screen unless something goes wrong." Unfortunately, unless the legal authority for a public health response to bioterrorism can be sorted out before bioterrorists strike, something is likely to go wrong in a big way.

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