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Article Excerpt
I. EVOLVING INFECTIOUS DISEASES AND INTERNATIONAL
TRAVEL A. The Speaker Incident B. The Development of Tuberculosis: Ancient Roots and Deadly New Strains II. CURRENT LAW A. The U.S. Legal Mechanisms for Response 1. State Law 2. Federal Law B. International Law Mechanisms for Response III. POSSIBLE CHANGES TO DOMESTIC LAW A. Civil Liberties Implications of Domestic Law 1. Prolonged Detention of Tuberculosis Patients 2. The CDC's Proposed Rule B. Expanding the CDC's Power to Reach Individuals Traveling Overseas IV. THE CIVIL LIBERTIES DEBATE IN EUROPE A. TB Control Measures in the European Union and the European Convention for the Protection of Human Rights B. Enhorn v. Sweden and its Implications V. INTERNATIONAL LAW IMPLICATIONS OF THE NATIONAL QUARANTINE SYSTEM EXPANSION A. The National Quarantine System B. Implications under the International Health Regulations VI. THE CONSTITUTIONALIZATION OF GLOBAL HEALTH GOVERNANCE A. Security Concerns B. Human Rights Protection C. Public Health Preparedness and Response D. The Commerce Power VII. CONCLUSION
Spring 2007's public health scare involving the international travels of Andrew Speaker, a Georgia resident diagnosed with an extremely drug-resistant strain of tuberculosis, sparked debate last year concerning governments' abilities to contain disease threats. (1) One focus of the legal discussion has been the constitutional issues involved: the balance between government police powers, specifically the power to isolate and quarantine, and individual liberties, particularly the right to due process. (2)
The Speaker incident highlights two problematic areas in the current domestic and international public health systems. The first area, the source of the majority of the furor that surrounded the case, is the ability of domestic governments to quarantine or isolate people who are potential disease threats. (3) At the heart of this discussion is the tension between government police powers and individual liberties, particularly the right to due process. (4) The second area is the need for response to the rapid and rising emergence of new strains of deadly infectious disease, such as the extremely drug-resistant tuberculosis strain with which Speaker was diagnosed, in an era of unprecedented international travel. (5)
The constitutional discussion also provides a framework for analyzing and improving the international system for public health governance. Recent developments in the international public health system resemble features of federal states' allocation of power in public health governance, producing a trend that points to improvements in international health governance through the strengthening of centralized and cooperative efforts. (6)
This Comment will first review the Speaker incident and use it as an illustration of the growing threat posed by the intersection of two phenomena: the evolution of infectious diseases, such as tuberculosis, and the increase in international trade and travel. Part II will provide a background of the domestic and international mechanisms currently in place to respond to the growing threat of infectious disease in international travel. Part III examines criticisms and shortcomings of the U.S. state and federal disease-response frameworks, including some that were exposed in the Speaker incident. This section also reviews the civil liberties concerns accompanying the renewed use of isolation and quarantine as public health measures; argues for approval of the planned changes to the federal quarantine and isolation law proposed by the Centers for Disease Control and Prevention (CDC) from the angle of the civil liberties arguments; and proposes additional changes to federal law, namely, giving authorization to the CDC to detain individuals traveling out of the United States. Part IV reviews the civil liberties tensions in the public health legislation of European Union (EU) countries, particularly in light of the European Convention for the Protection of Human Rights. Part V examines the proposed expansion of the U.S. National Quarantine System and the implications for such an expansion under the United States' international law obligations. Finally, Part VI compares the trends in the overall structures of public health governance domestically and internationally and proposes the "constitutionalization" of global public health governance as a guide to future international health solutions.
I. EVOLVING INFECTIOUS DISEASES AND INTERNATIONAL TRAVEL
A. The Speaker Incident
Andrew Speaker, an Atlanta lawyer, was first diagnosed with tuberculosis in March 2007. (7) After failed attempts at treatment, physicians diagnosed Speaker with multiple drug-resistant tuberculosis (MDR-TB), a strain of the disease that is rarer and more dangerous than common tuberculosis because it is not as treatable. (8) County health officials were notified of Speaker's diagnosis and met with him and his family to discuss his condition and treatment arrangements. (9) Reports differ concerning precisely what Speaker was told by health officials; Speaker and his family claimed that the contagiousness and dangerousness of his condition were not adequately conveyed to them, and that they were not explicitly told that Speaker should not travel. (10) Health officials from Fulton County and the Georgia Department of Public Health claimed Speaker was explicitly told that he should not travel. (11) On May 10, the Fulton County Health Department began reviewing legal options for restricting an MDR-TB patient, and on May 10 and 11, the Georgia Department of Public Health held discussions with the CDC concerning options for restricting the travel of an MDR-TB patient. (12)
Despite whether Speaker was sufficiently briefed on the seriousness of his condition, on May 12, 2007, he traveled on a commercial airline from his home in Atlanta to Greece for his wedding and then to Italy for his honeymoon. (13) While Speaker was in Italy, health officials in Georgia determined he was infected with extremely drug-resistant XDR-TB, the most lethal and potentially untreatable strain of the disease, instead of MDR-TB, with which he was initially believed to be infected. (14) The CDC was notified, and federal health officials tracked Speaker's movements to Italy and contacted him there, notifying him of the diagnosis and his need for immediate treatment. (15) Speaker was allegedly told he could only return to the United States on a private aircraft equipped to protect crew members from infection, but because the CDC could not arrange for such transportation, he would be quarantined in Italy. (16) Wanting to return to the United States for treatment, Speaker and his wife flew on commercial airlines from Italy to Prague and then to Montreal, where they rented a car and drove across the Canadian-U.S. border to New York, passing the checkpoint easily despite an alert to border patrol to detain Speaker if he tried to enter the country. (17) Only after arriving in New York was Speaker apprehended by health authorities and quarantined, even though the CDC had taken measures to notify airlines and border patrol that he was a disease threat and should not travel. (18) Speaker was detained in a New York hospital, where CDC officials served him the first provisional federal quarantine order issued since 1963. (19)
After interviewing him in New York, the CDC began the process of locating and contacting passengers who had been on the same flights Speaker had taken. (20) While still under federal isolation order, Speaker chose to return to Atlanta. (21) From there he was transferred to Denver through his own resources for treatment at the National Jewish Medical Center, where physicians determined that he in fact did not have XDR-TB, but MDR-TB. (22) Speaker underwent surgery at the end of July to remove the infected portion of his lung and was declared noncontagious on July 26, returning to Atlanta the same day. (23)
Speaker's case began to generate media attention at the end of May, when he returned to Atlanta from New York. (24) The target of criticism varied between Speaker himself and health authorities who had failed to detain him. (25) The incident also prompted an official inquiry by Congress. (26)
B. The Development of Tuberculosis: Ancient Roots and Deadly New Strains
Tuberculosis is by no means a new or recent disease; its bacteria have been detected in fossilized remains from thousands of years ago, and its effect has been immortalized in works of fiction from the 1700s and 1800s through stories of characters afflicted with the disease. (27) However, in recent years the medical community has been faced with developments in tuberculosis that were unprecedented before the last decade of the twentieth century--the evolution of the disease into strains previously unencountered and resistant to traditional methods of treatment, such as the strain contracted by Andrew Speaker. (28)
Tuberculosis is a disease caused by the bacteria Mycobacterium tuberculosis (M. tuberculosis). (29) Only 5-10% of carriers of the bacteria will contract the clinical disease tuberculosis over their lifetime. (30) The bacteria may lie dormant in a carrier, who will exhibit no symptoms, and become infectious only when the carrier's immune system is sufficiently weakened. (31) Infection with the disease usually affects the lungs but may infect the nervous system, lymphatic system, circulatory system, bones, joints, and skin. (32) Symptoms of pulmonary (lung-infected) tuberculosis include prolonged cough, chest pain, fever, chills, and weight loss. (33) M. tuberculosis is most commonly transmitted by inhaling airborne droplets expelled by someone infected with the disease through coughing, sneezing, laughing, or spitting. (34)
Tuberculosis bacteria have been detected in the fossilized remains of humans and animals dating as far back as 5,000 B.C. and the Greco-Roman era. (35) During the 17th and 18th centuries, the centuries-long tuberculosis pandemic reached its peak, becoming known as "the White Plague" and claiming the lives of an estimated one billion people between 1850 and 1950. (36)
Developments in the 1930s and 1940s produced treatments that led to the first cures for tuberculosis. (37) The developments involved the discovery of three medications which, given in certain combinations, killed 98-99% of M. tuberculosis strains. (38) Tuberculosis sanatoria and clinics were opened in the 1950s and 1960s to administer the new cure, which required twenty-four months of drug therapy. (39) However, this widespread cure was followed by "irregular or incomplete adherence" to the required two-year drug therapy by patients, inadequate prescription by physicians, and a drop-off in aggressive tuberculosis programs. (40) The combination of these factors contributed to the subsequent rise in drug-resistant tuberculosis strains. (41) Inadequate administration of drug combinations "[created] an environment that selects for survival of the drug-resistant [mutant]" strains of the bacteria, allowing these subspecies to become dominant in more carriers. (42)
Multidrug resistant tuberculosis (MDR-TB) is defined as infection with M. tuberculosis by strains that are resistant to two of the three conventional, "first-line" drugs. (43) Treatment of MDR-TB involves costlier, less effective, and more toxic "second-line" drugs. (44) Extremely drug-resistant tuberculosis (XDR-TB) is resistant to some second-line drugs in addition to first-line drugs, severely limiting treatment options. (45)
II. CURRENT LAW
The rapid evolution of tuberculosis and other contagious diseases, in conjunction with ever-increasing global travel, presents new challenges not only in medicine, but also in public health law. (46)
A. The U.S. Legal Mechanisms for Response
The responsibility to assess and respond to disease threats is primarily one belonging to state governments because it is a classic police power. (47) The scope of the federal government's authority in this area is governed by its ability to regulate interstate commerce and foreign relations and to promote the public welfare under Article I, section 8 of the Constitution. (48) However, the line between state and federal regulation has become blurred in practice, particularly as Congress' reach has expanded under its ability to prevent state discrimination. (49) Case law has historically supported a broader state police power in the public health arena than a narrower one. (50) An apparent exception is the protection afforded individuals classified as disabled under nondiscrimination statutes. (51) For example, the federal Americans with Disabilities Act, Rehabilitation Act, and Air Carriers Access Act contain provisions for individuals with infectious diseases. (52)
1. State Law
Each state has its own legal framework for response to infectious diseases, usually delegating administrative authority to a state health department or local boards of health. (53) Many states have promulgated fairly comprehensive procedures for response to specific disease threats, including tuberculosis. (54) However, the thoroughness of state laws for responding to disease threats can vary widely between states and even between the treatments of specific diseases within the same state. (55) This variation is because "[s]tates originally enacted their quarantine and isolation laws on an ad hoc, disease-by-disease basis." (56) Since 2001, however, the CDC and Center for Law and the Public's Health have promulgated the Model State Emergency Health Powers Act (MSEHPA), which has been adopted by forty-four states. (57) The most controversial of the MSEHPA's provisions are those addressing quarantine and isolation. (58) These provisions allow a state to require treatment, isolation, and quarantine when a state declares a public health emergency. (59) Among the MSEHPA provisions are due process procedures that allow individuals to obtain counsel to challenge the institution of quarantine and mandatory vaccination programs established...
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