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The “war” against
terrorism is fraught with inescapable legal and ethical dimensions
that evoke heated debate among constitutional lawyers, ethicists,
civil libertarians, and the ordinary public. Strong differences
of opinion regarding constitutionality of antiterrorism efforts
exist as evidenced by the multiple legal challenges being brought
against selected elements of the Patriot Act. These conflicts have
and will continue to be played out in the area of bioterrorism,
particularly the tension between protecting civil liberties and
the public’s health. This conflict has a long and fascinating
history that has attracted the interest of historians of medicine
and public health, as well as legal scholars, novelists, and health
policy makers. In Colonial America, for example, medical, religious,
and political leaders fought over variolation as a means of stemming
smallpox epidemics. Echoes of this debate are evident in the more
recent national smallpox vaccination campaign.
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Many of these same issues remain today. During the TOPOFF 1 trial
(described in Chapter 1), many participants called for imposition
of a quarantine when the “plague” breached established perimeters
of defense. Post-hoc analyses of TOPOFF 1 found that decision-makers
made this recommendation without fully realizing the enormous logistical,
ethical, and political dimensions of that decision. Further, it
was not at all clear just who had the authority in these circumstances
to implement or maintain such a quarantine. How contemporary societies
would respond to public health measures (used with far greater frequency
historically) is uncertain. For one thing, our experience with quarantine—arguably
the most stringent public health control measure—is rather thin.
Second, in most, if not all, Western society’s individual
liberties are often defended against even the most minor intrusions
of the state. For our purposes, it is not feasible or necessary
to provide a comprehensive discussion of the legal and ethical aspects
of bioterrorism. However, clinicians should be familiar with a few
areas relating to public health law which this chapter presents. In
addition, using the example of the recent smallpox vaccination program,
we hope to illustrate some of the more salient liability issues
that are likely to emerge should a bioterrorist attack occur at
some point in the future.
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One of the most striking consequences of the closing of the gates
was, in fact, this sudden deprivation befalling people who were
completely unprepared for it. Mothers and children, lovers, and husbands
and wives who had a few days previously taken it for granted that
their parting would be a short one, exchanged a few trivial remarks,
sure as they were of seeing each other again after a few days, or
at most, a few weeks, duped by our blind human faith in the near
future and little if at all diverted from their normal interests
by this leave-taking—all these people found themselves, without
the least warning, hopelessly cut off, prevented from seeing each
other again, or even communicating with each other. . While
our ...