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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.

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.

Of Note...

Oran, Algeria, 1940s

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 ...

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