The federal Centers for Disease Control and Prevention is urging states to adopt new quarantine laws to prepare for bioterrorism. Legal experts say if there were an outbreak of smallpox or some other highly contagious disease, the legal authority to act would fall to states, not the federal government. The CDC has floated a model state law calling for strict quarantines and compulsory vaccinations. So far, at least seven states, including Minnesota, are considering measures based on the CDC model. Minnesota's proposed legislation would give state health authorities powers greater than any they've used in the past, even during historic outbreaks of smallpox.
Current state law requires children be vaccinated for polio, diptheria, and other diseases before entering school - but that law wasn't passed until 1967. For decades before that, a state law specifically prohibited mandatory vaccination, even in the days when smallpox epidemics swept the state.
When the disease broke out in the crowded cabins of northwoods lumber camps at the turn of the last century, the State Health Board had to use back-door means to force lumberjacks to be vaccinated. It passed a resolution saying unvaccinated workers couldn't be paid, since contaminated money could spread the infection.
Minnesota's worst smallpox outbreak struck the state in 1924. Authorities used voluntary, not mandatory, vaccinations to control its spread.
And during historic epidemics, it was local health officers, not state officials, who imposed quarantines. They fought the spread of disease with a hodgepodge of local regulations. Some were draconian, others more lax.
But much has changed since the days when haphazard legal methods could contain epidemics, says Terry O'Brien, former Minnesota assistant attorney general, who now works for the University of Minnesota's Center for Infectious Disease Research and Policy. He says these days, the general public has much less respect for government authority than it did then.
"When a local health officer said there is a suspicion or danger, it was as simple as that person walking up to a home and placarding it - saying 'We think that this home may have the presence of some pathogen.' The vast majority of citizens complied," O'Brien says.
O'Brien says in the days when the threat of contagious disease was still part of everyday life, people were willing to obey statutes that would not pass legal muster today. For example, laws that gave local county boards the power to quarantine tuberculosis victims in sanitariums.
"If you do the research to find out if there's any case law where anybody contested their confinement at a TB sanitarium - under the old system - there is none. Nobody appealed," says O'Brien. "We had several sanitariums throughout the state of Minnesota. People were confined, sometimes for years."
O'Brien says in today's litigious society, authorities need new laws - and the steps to contain epidemics must be clearly spelled out.
"Let's say there's a large shopping mall, where it is strongly suspected on good reasonable evidence, that the people within that mall at that point had been exposed to smallpox. Can we legally tell the people in that mall, 'Please don't leave, until such time as we're able to contain this and determine what's going on? Because if you all leave, to South Dakota, Iowa, Brainerd, wherever, this thing could just break out of the capsule,'" he says.
O'Brien says right now, local law enforcement officials do not have the legal authority they would need to detain people in the shopping mall.
Minnesota does have some laws that give state health authorities power to contain infectious disease. But they were crafted in the 1980s to combat the threat of AIDS and antibiotic-resistant tuberculosis. They give officials emergency powers to detain an infected person for 72 hours, if the person's behavior threatens to infect others. Continued detention requires a court hearing.
That process may be too cumbersome to fight a highly contagious, casually-transmitted disease like smallpox.
It's a tricky balance of public safety versus individual rights, says Chuck Samuelson, executive director of the Minnesota Civil Liberties Union.
"We need to carefully think through how these are going to be implemented, under what conditions they'll be implemented," says Samuelson. "What are going to be the protections for civil liberties? Realizing that sometimes, in some conditions, it is necessary to temporarily give up some of these liberties."
Finding the right balance has never been easy, even in the old days of quarantine. John Eyler directs the University of Minnesota's History of Medicine program.
"There was a great deal of resistance to quarantine, understandably. It interfered with your freedom, it kind of stigmatized you in the neighborhood. It could be a very severe blow to a household's economy if people were kept from going to work. There were lots of attempts to avoid quarantine, primarily by withholding information about cases," says Eyler.
And measures that were seen as too harsh could be ineffective.
"Health authorities, particularly in New York City, were often horrified to find there had been a whole string of cases in a tenement building, say, and they had known nothing about it, because no one would report it," Eylers says. "People wouldn't go to seek help, for fear that they'd be quarantined."
But Michael Osterholm, director of the University of Minnesota's Center for Infectious Disease Research and Policy, says the CDC's model legislation strikes "close to the perfect balance" between preserving individual rights and safeguarding public health. He says its essential to get state legislators to pass it.
"When time is of the essence, when people are now transmitting - via just breathing air being shared in a common space - a life-threatening disease, our inability to deal with that will be the equivalent of allowing someone to walk down the street with a loaded six-shooter, and say that we can't do anything about it," he says.
Osterholm says he does not expect the mandatory vaccination provisions in the CDC legislation to be a stumbling block.
"My sense is, this is going to be a non-issue. If we have a smallpox epidemic in this state, or the potential for one, I think the real issue is how you're going to get enough vaccine out there quickly enough to meet the needs of everybody that wants it," Osterholm.
By current estimates, the federal government's stockpile of smallpox vaccine is only 7 million to 15 million doses - far short of the 300 million doses needed to protect the entire population. The government recently announced an effort to have 300 million doses ready within a year.
In the meantime, Osterholm and others say it's essential for Minnesota and the rest of the states to have legally sound, orderly plans in place before a crisis strikes.More Information