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Ebola and Human Rights

Post-9/11 Public Health and Safety in Epidemics

Published online by Cambridge University Press:  06 January 2021

George J. Annas
George J. Annas*
Affiliation:
Center for Health Law, Ethics & Human Rights, Boston University School of Public Health, 715 Albany St., Boston, MA 02118
*
Email: [email protected]
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Abstract

In public health practice, the concepts of health and safety are often conflated. However, protecting and promoting health is radically different from protecting and promoting safety. Since 9/11, the distinctions between health and safety have changed and are in the process of merging. In our terrorism-obsessed world, public health has been increasingly militarized and enlisted, often without protest, into the service of protecting the safety of the public and the security of the nation. But safety and security are the proper purposes of law enforcement and the military, not of public health. More importantly, using public health to combat terrorism is often counterproductive to the population's health, and undermines human rights. Using the Ebola epidemic of 2014, this Article suggests how the post-9/11 reframing of public health goals as including disaster preparedness and counterterrorism, and the new military metaphors we have adopted to describe public health, have deformed our public health agencies, and have made them less trusted by the public. In turn, these agencies are therefore less able to prevent and respond to new infectious diseases. The United States' response to Ebola gives us an opportunity to reconsider the merger of public health and public safety domestically and globally. This Article suggests that a deeper commitment to human rights, especially to the right to health, has the theoretical and practical strength to act as a countervailing force and refocus public health on the health of populations rather than on safety and national security.

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Articles
Information
American Journal of Law & Medicine , Volume 42 , Issue 2-3: Global Infectious Diseases: New Challenges and Solutions , May 2016 , pp. 333 - 355
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2016

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References

1 See Elliot Sperber, Why Our Good Health Should Be the Supreme Law of the Land: The US Constitution’s Stated Purpose Is to Further “the General Welfare” – and That Starts with the Health of the People, Alternet (July 8, 2013), http://www.alternet.org/visions/health-people-supreme-law [http://perma.cc/GX4Y-AMBC].

2 Id. “Safety” fits the context better than “health” as well. The paragraph from which the quotation is taken is about the powers of the head of the government when “in the field” as commander of the military: “[i]n the field they shall hold the supreme military power; they shall be subject to no one; the safety of the people shall be their highest law.” Marcus Tullius Cicero, Laws: Book II, in The Great Legal Philosophers 53 (Clarence Morris ed., 1959). Of course, Cicero’s views on law were not universally appreciated as he was ordered beheaded by Mark Antony. The Death of Cicero, http://penelope.uchicago.edu/~grout/encyclopaedia_romana/calendar/cicero.html [http://perma.cc/SNH9-2ZSR]. As Mary Beard puts it in her history of ancient Rome “the Romans’ were as divided about how they thought the world worked, or should work as we are. There is no simple Roman model to follow. If only things were that easy.” Mary Beard, SPQR: A History of Ancient Rome 535 (2015).

3 See, e.g., Howard Markel, Quarantine! East European Jewish Immigrants and the New York City Epidemics of 1892 186 (1997) (“[H]ealth officials interpreted [the phrase to mean], the health of the public outweighs that of the individual suspected of being ill … [and became] the immediate concern of those charged with epidemic containment.”).

4 See, e.g., Arde-Acquah, Phoebe E., Note, Salus Populi Suprema Lex Esto†: Balancing Civil Liberties and Public Health Interventions in Modern Vaccination Policy, 7 Wash. U. Juris. Rev. 337, 337 n. † (2015)Google Scholar (quoting Marcus Tuillius Cicero, De Legibus bk. III, part III, sub. VIII, at 241 (J. G. F. Powell ed., 2006) (c. 43 B.C.E.)).

5 Thomas Hobbes, Leviathan: Or the Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil 247 (Michael Oakeshott ed., Collier MacMillan Publishers 1977) (1651).

6 Press Release, The White House, Office of the Press Secretary, Address to the Nation by the President (Dec. 6, 2015), https://www.whitehouse.gov/the-press-office/2015/12/06/address-nation-president [http://perma.cc/3SQ3-7N76] [hereinafter Address to the Nation Press Release].

7 Michael Dorstewitz, Trump Floats “New and Improved Slogan” to Chris Wallace, BizPac Review (Dec. 13, 2015), http://www.bizpacreview.com/2015/12/13/trump-floats-new-and-improved-slogan-to-chris-wallace-284012?hvid=1WlqnG [http://perma.cc/H8T8-UZUU]. It is not surprising that as the level of fear of a new terrorist attack on Americans increased, so did Donald Trump’s poll numbers. Jonathan Martin & Dalia Sussman, Fear of Terrorism Lifts Donald Trump in New York Times/CBS Poll, N.Y. Times (Dec. 10, 2015), http://www.nytimes.com/2015/12/11/us/politics/fear-of-terrorism-lifts-donald-trump-in-new-york-times-cbs-poll.html?smid=pl-share&_r=0 (“Americans are more fearful about the likelihood of another terrorist attack than at any other time since the weeks after Sept. 11, 2001, a gnawing sense of dread that has helped lift Donald J. Trump to a new high among Republican primary voters, according to the latest New York Times/CBS News poll …. a plurality of the public views the threat of terrorism as the top issue facing the country.”). “[T]error management” theory predicts exactly this result. See George J. Annas, Worst Case Bioethics: Death, Disaster, and Public Health xiii-xiv (2010).

8 Commissioned Officers Association of the USPHS, Mission & History, http://coausphs.org/about/mission-history/ [http://perma.cc/K22D-9K4R].

9 This is not to say that “safety” is never a public health concern; gun safety and patient safety are two examples of major public health problems. See, e.g., Annas, George J., The Patient’s Right to Safety − Improving the Quality of Care Through Litigation Against Hospitals, 354 New Eng. J. Med. 2063-65 (2006)CrossRefGoogle Scholar (Even though lapses in patient safety in hospitals are one of the leading causes of death in the US, patient safety has generally been seen as a medical problem rather than as a public health problem). This is, I think, a major mistake. Another approach is more litigation.

10 See generally Annas, Worst Case Bioethics, supra note 7.

11 See, e.g., George Will, When Nature Attacks: Epidemics Can Be Terror Weapons, Jewish World Review (Aug. 9, 2014) http://www.jewishworldreview.com/cols/will080914.php3 [http://perma.cc/EM2Y-2V6H] (“Nowadays, so many terrible deeds are reflexively called terrorism that the term is becoming a classification that no longer classifies.”).

12 See generally Annas, Worst Case Bioethics, supra note 7.

13 Id. at 27-28. WHO’s designation of Zika causing an emergency epidemic of microcephaly is an over-reaction likely caused by its under-reaction to Ebola, and will fuel counterproductive responses. George Annas et al., Zika Virus is Not Ebola, Boston Globe (Feb. 1, 2016), https://www.bostonglobe.com/opinion/2016/02/01/zika-virus-not-ebola/gbBZA18ILkLcLK2VNM7XfM/story.html.

14 See, e.g., Guenter B. Risse, Driven by Fear: Epidemics and Isolation in San Francisco’s House of Pestilence 209 (2015) (“Since the military system and by extension most professional police forces are cohesive, rigid, and hierarchical, they can quickly respond in emergencies, [but] their tactics and orders are not subject to negotiations or consensus. Whether friendly or hostile, most civilians will be cast as the ununiformed ‘other,’ potential adversaries if they do not follow commands. This setup can be extremely useful in instances of widespread social breakdown and chaos, but it has proved time and again counterproductive in less dire and more localized situations.”).

15 But see Bernard, Kenneth W., Health and National Security: A Contemporary Collision of Cultures, 11 Biosecurity & Bioterrorism 157, 162 (2013)Google Scholar (arguing that the public health community must learn to work more closely with the national security community, and “can start by speaking national security language and eliminating the self-important and sanctimonious lecturing for which global health advocates are known”).

16 See Vielot, Nadja A. & Horney, Jennifer A., Can Merging the Roles of Public Health Preparedness and Emergency Management Increase the Efficiency and Effectiveness of Emergency Planning and Response? 11 Int’l J. Envtl. Res. Pub. Health 2911, 2912 (2014)Google Scholar; see generally Suk, Jonathan E. et al., Dual-Use Research and Technological Diffusion: Reconsidering the Bioterrorism Treat Spectrum, 7 PLoS 1 (2011)Google Scholar.

17 Editorial, Publishing Risky Research, 485 Nature 5 (2012); see also Palmer, Megan J. et al., A More Systematic Approach to Biological Risk, 350 Science 1471 (2015)Google Scholar (“The Ebola outbreak drove home the potential public health consequences of infectious agents, irrespective of whether they originate inside or outside the lab. The debate has widened as other dual-use experiments and technologies, such as gene drives, are pursued.”).

18 E.g., Jose Rodriguez, Jr. & Bill Harlow, Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives XIII, 80 (2012) (“I am certain, beyond any doubt, that these [enhanced] techniques …. saved American lives.”); see also Annas, George J. & Crosby, Sondra S., Post-9/11 Torture at CIA “Black Sites”- Physicians and Lawyers Working Together, 372 N Engl. J. Med. 2279, 2280 (2015)Google Scholar (“The CIA opened more than a dozen black sites around the world after 9/11, in which at least 117 prisoners were held; 39 of these prisoners were subjected to one or more torture techniques.”).

19 Florence v. Bd. of Chosen Freeholders of County of Burlington, 123 S. Ct 1510, (2012). Portions of the description of the Florence case are adapted from Annas, George J., Strip Searches in the Supreme Court − Prisons and Public Health, 367 New Eng. J. Med. 1653, 1653 (2012)Google Scholar (The facts of the case are straightforward and not in dispute. In 1998, Albert Florence, a thirty-eight year old black man, and his wife were stopped in their car by a state trooper, and based on an outstanding warrant that should have been rescinded, he was arrested. “He was held at the Burlington County Detention Center for 6 days, and then transferred to the Essex County Correctional Facility before the mistake was discovered and he was released. In court, he did not challenge either his arrest or confinement but only the strip searches performed at his admission to each facility.” Burlington County jail procedure required every person to shower and “to be checked by prison guards for ‘scars, marks, gang tattoos, and contraband’” when they were naked. “Florence says he was instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the Essex County Correctional Facility, as described by the Court, all new arrestees were instructed to remove their clothing while an officer examined them, looking at ‘their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.’ Florence says ‘he was required to lift his genitals, turn around, and cough in a squatting position as part of the process’ and then had a mandatory shower. Florence brought suit, alleging that the policies of [both prisons] … violated his Fourth Amendment rights which, he argued, prohibit routine strip searches of people arrested for minor offenses” in the absence of any “reasonable suspicion that the person [wa]s concealing contraband.” His case made it to the Supreme Court .).

20 Florence, 123 S. Ct 1510.

21 Id. at 1510.

22 Id. at 1512, 1518, 1520.

23 Id. at 1515, 1520 (emphasis added).

24 Id. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The Court relied heavily on Bell v. Wolfish, a 1979 case which upheld a rule requiring strip searches of prisoners (including pre-trial detainees) in a federal prison each time they had a contact visit with a person from outside the prison. Florence, 132 S. Ct. at 1516 (citing Bell v. Wolfish, 441 U.S. 520 (1979)). The Bell Court “deferred to the judgment of correctional officials that [mandatory strip searches] served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items inside.” Florence, 132 S. Ct. at 1516 (citing Bell, 441 U.S. at 558). The Court also relied heavily on a 2001 case of a woman who was arrested and taken to jail for not wearing her seat belt—an offence for which she could not be sentenced to jail time. Florence, 132 S. Ct. at 1517 (citing Atwater v. Lago Vista, 532 U.S. 318 (2001)). The Atwater Court rejected her claim that she could not be arrested and put in jail as a matter of constitutional right under these circumstances. Florence, 132 S. Ct. at 1517 (citing Atwater, 532 U.S. at 354). The Atwater Court, however, concluded that “officers may make an arrest based upon probable cause to believe the person has committed a criminal offense in their presence.” Florence, 132 S. Ct. at 1517 (citing Atwater, 532 U.S. at 354). “The Court has held that deference must be given to the officials in charge of the jail unless there is ‘substantial evidence’ demonstrating their response to the situation is exaggerated.” Florence, 132 S. Ct. at 1518 (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984).

25 Florence, 132 S. Ct. at 1518.

26 Id.

27 Id.

28 Id. at 1518-19.

29 Id. at 1520-22.

30 Id. at 1520.

31 Id. “It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate … from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.” Id. (emphasis added).

32 Id.

33 Id.

34 Id. at 1522.

35 Id. at 1526 (Breyer, J., dissenting).

36 Id. at 1525-26 (Breyer, J., dissenting).

37 Id. at 1527 (Breyer, J., dissenting) (citing Jones v. Edwards, 770 F.2d 739, 741 (8th Cir. 1985)).

38 Id. at 1528 (Breyer, J., dissenting) (citation omitted) (internal quotation marks omitted) (citing Turner v. Safley, 482 U.S. 78, 87 (1987)).

39 Id. at 1530 (Breyer, J., dissenting).

40 Id. at 1528-30 (Breyer, J., dissenting) (Breyer takes only one rationale seriously: detecting contraband. But even here Breyer argues, there is a “lack of justification” for routine strip searches. He reached this conclusion for three reasons. First, there is empirical evidence, documented by two prior courts, that no more than three instances of drug contraband in about 100,000 strip searches might not have been found by using a reasonable suspicion standard. Second, correctional associations and professional bodies that have studied the issue recommend against “suspicionless strip searches.” Finally, “[l]aws in at least 10 states prohibit suspicionless searches”, and at least seven Courts of Appeals do as well for persons arrested for a minor offense. Breyer then makes his strongest point: “neither the majority’s opinion nor the briefs set forth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard.”).

41 See generally id.

42 Id. at 1512, 1518.

43 Id. at 1518.

44 Id.

45 See infra text accompanying notes 46-55.

46 Florence, 132 S. Ct. at 1518 (citing Deger, Grant E. & Quick, David W., The Enduring Menace of MRSA: Incidence, Treatment, and Prevention in a County Jail. 15 J. Correctional Health Care 174 (2009)Google Scholar).

47 Bick, Joseph A., Infection Control in Jails and Prisons, 45 Healthcare Epidemiology 1047, 1047 (2007)Google Scholar; see Florence, 132 S. Ct. at 1518.

48 Bick, supra note 47, at 1047.

49 Florence, 132 S. Ct. at 1518 (citing Federal Bureau of Prisons, Clinical Practice Guidelines: Management of Methicillin-Resistant STAPHYLOCOCCUS AUREUS (MRSA) Infections (2012), https://www.bop.gov/resources/pdfs/mrsa.pdf [http://perma.cc/RPV9-C8JY] [hereinafter MRSA Guidelines]).

50 Florence, 132 S. Ct. at 1518 (citing Federal Bureau of Prisons, Clinical Practice Guidelines: Lice Protocol (2014), https://www.bop.gov/resources/pdfs/lice.pdf [http://perma.cc/BD7X-9MEL] [hereinafter Lice Protocol]); Federal Bureau of Prisons, Clinical Practice Guidelines: Scabies Protocol (2014), https://www.bop.gov/resources/pdfs/scabies.pdf [http://perma.cc/FP3A-PHAA] [hereinafter Scabies Protocol] (The Lice & Scabies Protocol has been divided into two separate documents)).

51 MRSA Guidelines, supra note 49, at 2.

52 Id. at 8.

53 Lice Protocol, supra note 50, at 1; Scabies Protocol, supra note 50, at 2.

54 Lice Protocol, supra note 50, at 2.

55 Scabies Protocol, supra note 50, at 2.

56 Florence, 132 S. Ct. at 1518.

57 Id. (citing Prison and Jail Administration: Practice and Theory (Peter M. Carlson & Judith Simon Garrett eds., 2d. ed. 2008)).

58 Prison and Jail Administration: Practice and Theory, supra note 57, at 142.

59 Id. (emphasis added).

60 See Rodriguez & Harlow, supra note 18 at 183-84.

61 See Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program 63 (2014), http://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf [/http://perma.cc/99NT-9WEF].

62 See Florence, 132 S. Ct. at 1520.

63 Id.

64 See David Johnston, Terror in Oklahoma: The Investigation; Just Before He Was to Be Freed, Prime Bombing Suspect Is Identified in Jail, N.Y. Times (Apr. 22, 1995), http://www.nytimes.com/1995/04/22/us/terror-oklahoma-investigation-just-before-he-was-be-freed-prime-bombing-suspect.html.

65 See Brett LoGiurato, The Supreme Court Cited Timothy McVeigh As an Example of Why New Inmate Strip Searches Are Needed, Business Insider (Apr. 2, 2012), http://www.businessinsider.com/supreme-court-strip-search-case-cites-timothy-mcveigh-2012-4 [http://perma.cc/3NKQ-LU4U].

66 See A Nation Challenged: The Terrorists; Hijacker Got a Speeding ticket, N.Y. Times (Jan. 9, 2002, http://www.nytimes.com/2002/01/09/us/a-nation-challenged-the-terrorists-hijacker-got-a-speeding-ticket.html.

67 See id.

68 McQuiston, John T., Confession Used to Portray Rifkin as Methodical Killer. N.Y. Times, Apr. 26, 1994Google Scholar, at B6.

69 Id.

70 See generally Brief for Psychiatrists as Amici Curiae Supporting Petitioner, Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012) (No. 10-945).

71 See generally Brief for Medical Society of New Jersey, The Center for Prisoner Health and Human Rights, and Medical Experts as Amici Curiae Supporting Petitioner, Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012) (No. 10-945).

72 E.L. Doctorow, Unexceptionalism: A Primer, N.Y. Times (Apr. 28, 2012), http://www.nytimes.com/2012/04/29/opinion/sunday/unexceptionalism-a-primer.html?_r=0.

73 See Key Messages – Ebola Virus Disease, West Africa, CDC, 5-6 (last updated Feb. 10, 2016), http://www.cdc.gov/vhf/ebola/pdf/key-messages.pdf [http://perma.cc/73JN-ELNV].

74 See Breakdown of the Year: Ebola, 346 Science 1450, 1450 (2014).

75 Angie Drobnic Holan & Aaron Sharockman, 2014 Lie of the Year: Exaggerations About Ebola, Politifact (Dec. 15, 2014, 3:08 PM), http://www.politifact.com/truth-o-meter/article/2014/dec/15/2014-lie-year-exaggerations-about-ebola/ [http://perma.cc/XL79-XDFN].

76 See Medecins Sans Frontieres, Pushed to the Limit and Beyond: A Year Into the Largest Ever Ebola Outbreak, 5-7 (2015), https://www.doctorswithoutborders.org/sites/usa/files/msf143061.pdf [http://perma.cc/C98Z-FVP71].

77 See Press Release, WHO, Statement on the 1st meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa (Aug. 8, 2014), http://www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/ [http://perma.cc/73R6-CKHL]; World Health Organization: Legal Responses to Health Emergencies, Library of Congress, https://www.loc.gov/law/help/health-emergencies/who.php [http://perma.cc/H9H3-FFYF].

78 World Health Organization: Legal Responses to Health Emergencies, supra note 77.

79 See, e.g., Frequently Asked Questions About the International health Regulations (2005), WHO, http://www.who.int/ihr/about/faq/en/ [http://perma.cc/2E2Z-UX5Z] (“[T]he IHR (2005) do not include an enforcement mechanism per se for States which fail to comply with its provisions ….”). Although called “Regulations” the International Health Regulations are more accurately described as “guidelines.” As Article 3 makes clear, “[s]tates have, in accordance with the Charter of the United Nationas and the principles of international law, the sovereign right to legislate and to implement legislation in pursuance of their health policies. In doing so they should uphold the purpose of these Regulations.” WHO, International Health Regulations 10 (2d ed., 2005) [hereinafter WHO, IHR]. The operative word, of course, is “should.”

80 See generally Mongoven, Ann, The War on Disease and the War on Terror: A Dangerous Metaphorical Nexus?, 15 Cambridge Q. Healthcare Ethics 403 (2006)Google Scholar and Robert Riversong, Ebola As Metaphor: The Ebola Virus Threatens Human Claims to Evolutionary Superiority, Turning the Tide: Shifting the Paradigm of Human Culture, https://riversong.wordpress.com/ebola-as-metaphor/ [http://perma.cc/GB24-6N2Y] for discussions of terrorism metaphors for diseases.

81 See, e.g., Fauci, Anthony S., Ebola - Underscoring the Global Disparities in Health Care Resources, 371 New Eng. J. Med. 1084 (2014)Google Scholar (describing the countries most affected by Ebola as “resource-poor” and having “porous … borders”).

82 See Medecins Sans Frontieres, supra note 76, at 7, 11; Bahar Gholipour, Ebola ‘Patient Zero’: How Outbreak Started from Single Child, LiveScience (Oct. 30, 2014), http://www.livescience.com/48527-ebola-toddler-patient-zero.html [http://perma.cc/A33J-6TF6].

83 See Elisha Fieldstadt et al., Ebola Patient Dr. Kent Brantly Arrives at U.S. Hospital from Liberia, NBC News (Aug. 2, 2014), http://www.nbcnews.com/storyline/ebola-virus-outbreak/ebola-patient-dr-kent-brantly-arrives-u-s-hospital-liberia-n171241 [https://http://perma.cc/Z89T-JRWA].

84 See Ed Mazza, Donald Trump Says Ebola Doctors ‘Must Suffer the Consequences’, HuffPost Media (Aug. 4, 2014, 11:47 PM), http://www.huffingtonpost.com/2014/08/03/donald-trump-ebola-doctors_n_5646424.html [http://perma.cc/WH53-DP7T].

85 WHO Chief Says No Early End to Outbreak, Global Times (Aug. 21, 2014), http://www.globaltimes.cn/content/877393.shtml [http://perma.cc/J2AK-75LU] (internal quotation marks omitted).

86 Editorial, Ebola: Time to Act, 513 Nature 143, 144 (2014).

87 Medecins Sans Frontieres, supra note 76, at 13.

88 See id. at 13-14.

89 See Emily Schmall, Review Faults Dallas Hospital in Ebola Case, Boston Globe (Sept. 5, 2015), https://www.bostonglobe.com/news/nation/2015/09/04/review-cites-problems-texas-hospital-during-ebola-crisis/mcbD0jYuZOrCbkpE2UvHUI/story.html; Press Release, CDC, CDC and Texas Health Department Confirm First Ebola Case Diagnosed in the U.S. (Sept. 30, 2014), http://www.cdc.gov/media/releases/2014/s930-ebola-confirmed-case.html [http://perma.cc/4YA7-7PZQ].

90 See Schmall, supra note 89.

91 See, e.g., Betsy McKay & Ana Campoy, Ebola Diagnosed in Texas Patient; First U.S. Case, Wall St. J. Oct. 1, 2014, at A1 (discussing the first United States case of ebola).

92 Catherine Saint Louis, Hospitals in the U.S. Get Ready for Ebola, N.Y. Times (Aug. 15, 2014), http://www.nytimes.com/2014/08/16/health/hospitals-in-the-us-get-ready-for-ebola.html?_r=0.

93 Ford Vox, Why CDC Chief Must Go, CNN (Oct. 16, 2014), http://www.cnn.com/2014/10/16/opinion/vox-frieden-should-resign/ [http://perma.cc/KL35-X6UL] (internal quotation marks omitted); see Alice Park, Nurses ‘Infuriated’ By Suggestion of Dallas Ebola Protocol Breach, Time (Oct. 14, 2014), time.com/3506907/nurses-protocol-breach-ebola/ [http://perma.cc/HSS5-9GAG].

94 See, e.g., Bruce Dorminey, Ebola as ISIS Bio-Weapon?, Forbes (Oct. 5, 2014), http://www.forbes.com/sites/brucedorminey/2014/10/05/ebola-as-isis-bio-weapon/#71781e3b1c7b (“ISIS may already be thinking of using Ebola as a low-tech weapon of bio-terror …. ”).

95 Press Release, The White House, Office of the Press Secretary, Remarks by President Obama at U.N. Meeting on Ebola (Sept. 25, 2014), https://www.whitehouse.gov/the-press-office/2014/09/25/remarks-president-obama-un-meeting-ebola [http://perma.cc/7BBM-XJP5] [hereinafter Obama Remarks Press Release]; George Annas, What Ebola Teaches Us About Public Health in America, Health Aff. Blog (Feb. 9, 2015), http://healthaffairs.org/blog/2015/02/09/what-ebola-teaches-us-about-public-health-in-america/ [http://perma.cc/6MA4-A9RW].

96 Joel Achenbach, Paul Farmer on Ebola: “This Isn’t a Natural Disaster, This Is the Terrorism of Poverty,” Wash. Post (Oct. 6, 2014), https://www.washingtonpost.com/news/achenblog/wp/2014/10/06/paul-farmer-on-ebola-this-isnt-a-natural-disaster-this-is-the-terrorism-of-poverty [http://perma.cc/DDZ6-KWRC] (internal quotation marks omitted).

97 Melanie Hunter, Dr. Fauci: ‘Nature Is the Worst Terrorist’, CNS News (Oct. 6, 2014), http://www.cnsnews.com/news/article/melanie-hunter/dr-fauci-nature-worst-terrorist [http://perma.cc/554K-K4ZB].

98 Ferdous Al-Faruque, Ben Carson: Ebola Could Be Used for Terrorism (Aug. 7, 2014, 12:44 PM), The Hill, http://thehill.com/policy/healthcare/214596-ben-carson-ebola-could-be-used-for-terrorism [http://perma.cc/U5FT-T73D].

99 Eddie Scarry, Ben Carson’s ‘Worst-Case Scenario’: Lab Worker Bribed $1 Million for Ebola Urine, Mediaite (Aug. 7, 2014), http://www.mediaite.com/tv/ben-carsons-worst-case-scenario-hospital-lab-worker-bribed-1-million-for-ebola-urine/ [http://perma.cc/3TBX-3K7B].

100 Marc A. Thiessen, A ‘Dark Winter’ of Ebola Terrorism?, Wash. Post. (Oct. 20, 2014), https://www.washingtonpost.com/opinions/marc-thiessen-a-dark-winter-of-ebola-terrorism/2014/10/20/4ebfb1d8-5865-11e4-8264-deed989ae9a2_story.html [http://perma.cc/FH3G-P26B] (internal quotation marks omitted).

101 Id.

102 See Obama Remarks Press Release, supra note 95.

103 See generally S.C. Res. 2177 (Sep. 18, 2014) (addressing “the outbreak of the Ebola virus”).

104 Juliet Eilperin & David Nakamura, Obama Taps Ron Klain As Ebola Czar, Wash. Post (Oct. 17, 2014), https://www.washingtonpost.com/news/post-politics/wp/2014/10/17/obama-taps-ron-klain-as-ebola-czar/ [http://perma.cc/E7AF-7RDZ] (“Klain, 53, is a longtime Democratic operative who served as Biden’s chief of staff from 2009 to 2011 and as Gore’s from 1995 to 1999. He helped oversee the Democratic side in the 2000 presidential election recount as its lead lawyer, a role that Kevin Spacey portrayed in the HBO film ‘Recount.’”). In January 2016, Obama named another lawyer, Vice President Biden, to head the country’s new “moonshot” initiative to cure cancer. Gillian Mohney, President Obama’s Cancer ‘Moon Shot’: How Scientists Are Trying to Cure the Disease, ABC News (Jan. 13, 2016), abcnews.go.com/Health/president-obamas-cancer-moon-shot-scientists-cure-disease/story?id=36268680.

105 See Eilperin & Nakamura, supra note 104.

106 See, e.g., Non-Governmental Organizations Responding to Ebola, Center for International Disaster Information, http://www.cidi.org/ebola-ngos/#.VtugsZMrLox [http://perma.cc/932V-62LJ] (listing the organizations that have come together to lend support during the Ebola outbreak).

107 See Eilperin & Nakamura, supra note 104.

108 The Directors: The Ebola fighters in Their Own Words, TIME (Dec. 10, 2014), http://time.com/time-person-of-the-year-ebola-directors/ [http://perma.cc/N87E-5DE3]. Frieden went further in adopting the military metaphor for Ebola. As TIME noted: “[e]arly in the epidemic, CDC director Frieden spoke of Ebola’s ‘fog of war.’ Its shroud covers the battlefield. Eventually … the Ebola fighters are going to be victorious. The fog will clear, leaving the hard truth in view: this won’t be the last epidemic. And when the next one comes, the world must learn the lessons of this one: Be better prepared, less fearful, less reactive.” David Von Drehle & Aryn Baker, The Ebola Fighters: The Ones Who Answered the Call, TIME (Dec. 10, 2014), http://time.com/time-person-of-the-year-ebola-fighters/ [http://perma.cc/BY4H-NCBN].

109 See generally Susan Sontag, Illness as Metaphor (1978) [hereinafter Sontag, Illness].

110 Id. at 5.

111 Id. at 3-4.

112 See Susan Sontag, AIDS and its Metaphors 13 (1988) [hereinafter Sontag, AIDS].

113 Sontag, Illness, supra note 109, at 64-66 (internal quotation marks omitted).

114 Id. at 80-85.

115 Id. at 87.

116 See Sontag, AIDS, supra note 112, at 15.

117 See, e.g., Vincent T. Devita, Jr. & Elizabeth Devita-Raeburn, The Death of Cancer: After Fifty Years on the Front Lines of Medicine, A Pioneering Oncologist Reveals Why the War on Cancer is Winnable − and How We Can Get There 6 (2015) (“noting that “it [i]s time to invest large sums of money to conquer cancer”) (emphasis added).

118 Address to the Nation Press Release, supra note 6.

119 See Sontag, AIDS supra note 112, at 18.

120 Id. at 25.

121 Id. at 44.

122 Id. at 45.

123 Id. at 47.

124 Id. at 63-64.

125 See Norimitsu Onishi, As Ebola Grips Liberia’s Capital, a Quarantine Sows Social Chaos, N.Y. Times (Aug. 28, 2014), http://www.nytimes.com/2014/08/29/world/africa/in-liberias-capital-an-ebola-outbreak-like-no-other.html; Norimitsu Onishi, Clashes Erupt as Liberia Sets an Ebola Quarantine, N.Y. Times (Aug. 20, 2014), http://www.nytimes.com/2014/08/21/world/africa/ebola-outbreak-liberia-quarantine.html?_r=0.

126 See Marc Santora, Cuomo and Christie Order Strict Ebola Quarantines, N.Y. Times, Oct. 25, 2014, at A1; Sabrina Tavernise, Newly Vigilant, U.S. Will Screen Fliers for Ebola, N.Y. Times (Oct. 8, 2014), http://www.nytimes.com/2014/10/09/us/newly-vigilant-us-is-to-screen-fliers-for-ebola.html.

127 See Santora, supra note 126.

128 Drazen, Jeffrey M. et al., Editorial, Ebola and Quarantine, New Eng. J. Med. 2029, 2029-30 (2014)Google Scholar. This editorial was published electronically, and drew immediate praise from the New York Times. E.g., Andrew C. Revkin, How Unscientific Ebola Steps in U.S. Could Help Spread Virus Elsewhere, N.Y. Times Dot Earth (Oct. 28, 2014, 9:22 AM), http://dotearth.blogs.nytimes.com/2014/10/28/how-unscientific-ebola-steps-in-u-s-could-help-spread-virus-elsewhere/.

129 Josh Dawsey et al., Kaci Hickox, Nurse Under Ebola Quarantine, Returns to Her Maine Home: She Agrees Not Venture Into Large Public Spaces, Lawyer Says, Wall St. J. (Oct. 27, 2014), http://www.wsj.com/articles/nurse-being-held-under-ebola-quarantine-at-newark-hospital-will-be-discharged-1414418399?cb=logged0.3634139366913587.

130 following has been excerpted from a contemporaneous unpublished summary written by Leonard Glantz, Wendy Mariner and me:

Ms. Hickox’s two-day flight from Sierra Leone arrived in New Jersey’s Newark Liberty International Airport on October 25, 2014, less than two weeks before elections, just as fears of Ebola in the U.S. heightened. Newark is one of the airports charged with screening arrivals from countries with Ebola outbreaks. Dr. Craig Spencer, who had treated Ebola patients in Guinea, had been hospitalized with Ebola infection at Bellevue Hospital in New York City two days earlier. Reports of his riding the subway and bowling while asymptomatic upset many New Yorkers. People in New Jersey also objected when medical correspondent Nancy Snyderman, whose cameraman, Ashoka Mukpo became infected with Ebola in Liberia, left home to pick up takeout food on October 23. Governors Chris Christie of New Jersey and Andrew Cuomo of New York reacted by announcing that all passengers arriving from Ebola outbreak countries would be ordered into quarantine for the 21 day viral incubation period. Ms. Hickox was the first test of this policy.

When Ms. Hickox gave an accurate history of her patient care activities in Sierra Leone, officials wearing gowns and face shields sequestered her for seven hours, repeatedly questioning her. They used a forehead scanner (which can be unreliable) to take her temperature. It first read 98°F, but later read 101°, which Ms. Hickox explained as the result of being flushed and upset. She requested an oral thermometer, which was not provided. Three hours later, a police motorcade escorted her to an isolation tent equipped with a port-a-potty but no shower, outside University Hospital. There, the hospital’s infectious disease specialist found her temperature to be 98.6°F on an oral thermometer, compared with 101° on a scanner. He told Ms. Hickox, “There[‘s] no way you have a fever… your face is just flushed.[“] A laboratory test for Ebola was negative. Nevertheless, apparently relying on the scanner temperature at the airport, New Jersey officials insisted that Ms. Hickox must remain quarantined there for 21 days since her last contact with an Ebola patient, which would end November 10, 2014. Governor Christie relied on the airport scanner temperature to conclude that Ms. Hickox had a fever at some point.

Protests arose from public health and medical professionals, including Médecins Sans Frontières (MSF) for which Ms. Hickox volunteered and which needs volunteer health professionals to care for Ebola patients. NIAID Director Anthony Fauci said he would not recommend quarantine, noting that the best policy is to stop Ebola at its source in African countries. President Obama called it unnecessary and counterproductive and later met with returning health professionals to congratulate them on their altruistic service. The CDC issued revised guidelines for different levels of risk of exposure to Ebola virus, which did not recommend involuntary quarantine unless a person is unable to follow the guidelines. Governor Cuomo quickly backed away from his policy. Governor Christie, however, said that his role was to protect the citizens of New Jersey and that if Ms. Hickox was unhappy she could sue him (she has since filed a lawsuit). Ms. Hickox’s attorneys negotiated her release so she could return home to Fort Kent, Maine.

Ms. Hickox returned to the house she shared with her partner, Ted Wilbur, in a small rural community near the Canadian border. Ms. Hickox apparently followed MSF and CDC guidelines for self-monitoring, and went beyond them by not going into town or meeting with anyone besides her partner, a public health nurse who came to their home, and talking to reporters now covering this very public drama. Nonetheless, Maine Governor Paul R. LePage insisted that Ms. Hickox stay quarantined inside her home. Ms. Hickox objected ….

Leonard Glantz et al., Quarantining Health Professionals: Lessons from Kaci Hickox’s Case 2-4 (on file with author).

On October 30, 2014, the Maine Department of Public Health petitioned for a court order requiring Ms. Hickox to submit to direct active monitoring and “exclu[ding her] from public places” and from using any “public conveyances”, among other requirements. Verified Petition for Public Health Order at 5, Mayhew v. Hickox, No. CV-14-36 (D. Me. Oct. 30, 2014) [hereinafter Verified Petition]. The next morning, Judge Charles LaVerdiere denied the state’s request to involuntarily quarantine Ms. Hickox in her home. Instead, he issued a temporary order requiring Ms. Hickox to “[p]articipate in and cooperate with ‘Direct Active Monitoring’ as that term is defined by the [CDC] … [,][c]oordinate her travel with public health authorities to ensure uninterrupted Direct Active Monitoring; and [to] [i]mmediately notify public health authorities and follow their directions if any symptom appears.” Order Pending Hearing at 3, Mayhew v. Hickox, No. CV-2014-36 (D. Me. Oct. 31, 2014) (emphasis in original). The state declined to pursue the case and agreed to have the order end on November 10, 2014. Order, Mayhew v. Kickox, No. CV-2014-36 (D. Me. Nov. 3, 2014). The same result could have been achieved without the state going to court. Ms. Hickox had already agreed to – and had been voluntarily following – these conditions. See Verified Petition, supra, at ¶ 31.

131 See generally Mariner, Wendy K. et al., Jacobson v. Massachusetts: It’s Not Your Great-Great- Grandfather’s Public Health Law, 95 Am. J. of Pub. Health 581 (2005)Google Scholar (“[I]nvoluntary isolation and quarantine should be needed and used only in extremely rare cases …. even with the SARS epidemic, there provide to be almost no need to compel isolation, and quarantine was almost exclusively done in the individual’s home.”).

132 See generally Richard Preston, The Hot Zone: A Terrifying True Story (1994).

133 Id. at 64.

134 Id. at 65.

135 Id. at 105-07.

136 Annas, Worst Case Bioethics, supra note 7, at 221-28.

137 Id. at 221-228.

138 Id. at 232-33.

139 Id. at 233; see also George J. Annas et al., Pandemic Preparedness: The Need for a Public Health—Not a Law Enforcement/National Security—Approach 23-24 (2008). https://www.aclu.org/report/pandemic-preparedness-need-public-health-not-law-enforcementnational-security-approach (“In the post-9/11 climate, public health policy has increasingly been viewed through the prism of, and indeed as a part of, law enforcement and national security.”).

140 Associated Press, Dallas ER Doctor of Ebola Victim Thomas Eric Duncan Missed His High Fever During Initial Treatment, N.Y. Daily News (Dec. 8, 2014), http://www.nydailynews.com/life-style/health/dallas-er-doctor-ebola-victim-missed-high-fever-article-1.2037885.

141 See Annas, Worst Case Bioethics, supra note 7, at 232; Annas et al., Pandemic Preparedness, supra note 139, at 20-21.

142 See Annas, Worst Case Bioethics, supra note 7, at 233; Annas et al., Pandemic Preparedness, supra note 139, at 23, 25-26.

143 See Dawsey et al., supra note 129.

144 See Annas, Worst Case Bioethics, supra note 7, at 232 (“[Health law] should emphasize the ordinary, leaving behind its obsession with … public health emergencies ….”).

145 WHO, IHR, supra note 79, at 14 (Article 12 Determination of a Public Health Emergency of International Concern).

146 WHO, IHR, supra note 79, at 10 (“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to legislate and to implement legislation in pursuance of their health policies.”); see also, Editorial, Ebola: What Lessons for the International Health Regulations?, 384 Lancet 1321, 1321 (2014)Google Scholar (“Although all WHO members have agreed to the IHR principles, countries were left to self-report their progress on core capacity development, such as surveillance, diagnostic, and containment demands.”).

147 See Somini Sengupta, Effort on Ebola Hurt W.H.O. Chief, N.Y. Times (Jan. 6, 2015), http://www.nytimes.com/2015/01/07/world/leader-of-world-health-organization-defends-ebola-response.html.

148 See Gostin, Lawrence O. & Friedman, Eric A., Ebola: A Crisis in Global Health Leadership, 384 Lancet 1323, 1323 (2014)Google Scholar.

149 Norimitsu Onishi, Empty Ebola Clinics in Liberia Are Seen as Misstep in U.S. Relief Effort, N.Y. Times (Apr. 11, 2015), http://www.nytimes.com/2015/04/12/world/africa/idle-ebola-clinics-in-liberia-are-seen-as-misstep-in-us-relief-effort.html?_r=0 (“Only 28 Ebola patients have been treated at the 11 treatment units built by the United States military, American officials now say. Nine centers have never had a single Ebola patient.”); Kevin Sieff, U.S.-Built Ebola Treatment Centers in Liberia Are Nearly Empty As Outbreak Fades, N.Y. Times (Jan. 18, 2015), https://www.washingtonpost.com/world/africa/us-built-ebola-treatment-centers-in-liberia-are-nearly-empty-as-disease-fades/2015/01/18/9acc3e2c-9b52-11e4-86a3-1b56f64925f6_story.html.

150 See Cohen, Jon & Ernserink, Martin, As Ebola Epidemic Draws to a Close, a Thin Scientific Harvest, 351 Science 12, 12 (2016)Google Scholar (Writers for Science described the effort to test vaccines and drugs during the Ebola epidemic as “frenzied” and this seems a fair description. With the blessing of a WHO committee, depending on how one counts, about a dozen studies of drugs, vaccines, and blood from survivors were conducted. The only success to date is a vaccine that has been described as “remarkably successful.” None of the other studies found an effective agent, although the ZMapp study is still ongoing. Chimerix “pulled the plug” on its study of brincidofovir after only four patients were enrolled. Only nine patients enrolled in an interferon-beta study, and a vaccine study that need 9000 people recruited only 500. Most of the studies that were done had no control group, causing a US FDA official to complain: “[w]e’re left with not knowing whether the products help, hurt, or do nothing.”) (internal quotation marks omitted); see generally id. for more details on each study.

151 See, e.g., Andrew Pollack, Testing for Ebola Vaccines to Start Soon, W.H.O. Says, N.Y. Times (Oct. 22, 2014), http://www.nytimes.com/2014/10/22/business/testing-for-ebola-vaccines-to-start-soon-who-says.html (“Health authorities and pharmaceutical companies are planning to test several new vaccines to prevent Ebola infection over the next few months, including one that is taken as a tablet, making it easier to deploy in West Africa.”); Press Release, WHO Media Centre, Ethical Considerations for Use of Unregistered Interventions for Ebola Virus Disease (EVD): Summary of the Panel Discussion (Aug. 12, 2014), http://www.who.int/mediacentre/news/statements/2014/ebola-ethical-review-summary/en/ [http://perma.cc/GKL2-EPU8] (“The large number of people affected by the 2014 west Africa outbreak, and the high case-fatality rate, have prompted calls to use investigational medical interventions to try to save the lives of patients and to curb the epidemic.”).

152 See International Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 U.N.T.S. 171 (“[N]o one shall be subjected without his free consent ….”).

153 Id. (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”) (emphasis added).

154 See Annas, George J., Purple Dinosaurs and Victim Consent to Research in Disasters, in Disaster Bioethics: Normative Issues When Nothing is Normal 138-39 (O’Mathúna, D. P. et al. eds., 2014)CrossRefGoogle Scholar.

155 Annas, What Ebola Teaches Us About Public Health in America, supra note 95 (internal quotation marks omitted).

156 See e.g., Donald G. McNeil, Jr., Ebola Doctors are Divided on IV Therapy in Africa, N.Y. Times (Jan. l, 2015), http://www.nytimes.com/2015/01/02/health/ebola-doctors-are-divided-on-iv-therapy-in-africa.html?_r=0. (“Medical experts seeking to stem the Ebola epidemic are sharply divided over whether most patients in West Africa should, or can, be given intravenous hydration, a therapy that is standard in developed countries. Some argue that more aggressive treatment with IV fluids is medically possible and a moral obligation.”).

157 Of course, all actions should be consistent with basic human rights doctrine, including nondiscrimination. It is in this regard that Ebola is similar to HIV, i.e., it can be an excuse to exclude infected persons as the enemy. See, e.g., Eba, Patrick M., Ebola and Human Rights in West Africa, 348 Lancet 2091, 2091-92 (2014)Google Scholar (encouraging “embrac[ing] the tested lessons of proportionality, trust-building, and respect for human rights” during emergency situations).

158 See Annas, Purple Dinosaurs and Victim Consent to Research in Disasters, in Disaster Bioethics: Normative Issues When Nothing is Normal, supra note 154, at 138-39; see also Rid, Annette & Emanuel, Ezekiel J., Ethical Considerations of Experimental Interventions in the Ebola Outbreak, 384 Lancet 1896, 1898 (2014)Google Scholar (“[T]he international community needs more focus on strengthening of health systems and infrastructure and less on experimental treatments.”); Goodman, Jesse L., Studying “Secret Serums”- Toward Safe, Effective Ebola Treatments, 371 New Eng. J. Med. 1086, 1088 (2014)Google Scholar (“As we move forward … we have already learned some lessons from this outbreak … [including,] the critical nature of the capacity both for public health intervention and to ethically field clinical studies under challenging conditions.”).

159 See, e.g., Moon, Suerie et al., Will Ebola Change the Game? Ten Essential Reforms Before the Next Pandemic. The Report of the Harvard-LSHTM Independent Panel on the Global Response to Ebola, 386 Lancet 2204 (2015)Google Scholar (recommending “[a] transparent and politically protected WHO Standing Emergency Committee should be delegated with the responsibility for declaring public health emergencies”).

160 See, e.g., Laurie Garrett, Can the Global Public Health System Learn from its Ebola Mistakes?, Council of Foreign Relations (Oct. 8, 2015), http://foreignpolicy.com/2015/10/08/global-public-health-system-learn-from-ebola-mistakes-who/ [http://perma.cc/5JKT-EMP9] (suggesting that all the groups get together, and warning that unless they do “the din of pontificating and criticism will resound in a sort of global anarchy. Little will actually change”).

161 Annas et al., Zika Virus is Not Ebola, supra note 13 (internal quotation marks omitted).

162 See id.

163 See, e.g., Simon Romero, Surge of Zika Virus has Brazil Re-examining Strict Abortion Laws, N.Y. Times (Feb. 3, 2016), http://www.nytimes.com/2016/02/04/world/americas/zika-virus-brazil-abortion-laws.html?_r=0 (“The surging medical reports of babies being born with unusually small heads during the Zika epidemic in Brazil are igniting a fierce debate over the country’s abortion laws, which make the procedure illegal under most circumstances.”).

164 See Philip Stevens, Diseases of Poverty and the 10/90 Gap (2004), http://who.int/intellectualproperty/submissions/InternationalPolicyNetwork.pdf [http://perma.cc/V6DJ-6Q83].

165 CDC, CDC at Work, http://www.cdc.gov/washington/~cdcatWork/pdf/infections.pdf [http://perma.cc/S69C-ZHYT].