Owing to the development of public health measures, inoculations and vaccines, and modern antibiotics the ancient practice of quarantine largely vanished from twentieth-century developed states. This coincided with the emergence in the United States of omnicompetent nation-state governments that replaced the more limited domestic authorities of the state-nation. Thus even though potential federal authority of the States expanded, with respect to quarantine, this authority lay fallow. Today we have the paradoxical situation that a threat to the entire nation by means of infectious agents in a terrorist war against the United States would confront a patchwork of state laws, only a few of which have been updated to apply to all diseases. The federal government is, statutorily, largely out of the picture and the state laws are often antiquated. Many state laws require judicial approval in order to enforce a quarantine. Other state laws restrict the authority of public health officials to share information about an individual's health status. Some states forbid the sharing of information among state agencies or even for one state to inform another state of a health emergency. In October 2001 the CDC released a model state Emergency Health Powers Act. This statute is designed to give officials the power to act decisively in the event of a biological attack or the outbreak of an infectious epidemic.
Under this statute, public health officials could compel a person to submit to a physical exam or a test without a court order. Physicians and other health workers could be forced to do this testing. While court orders would be required for quarantines officials could quarantine first and go to court afterward. Officials could compel persons to be vaccinated or treated for infectious diseases. States would have broad emergency powers to confiscate property and facilities, including subways, hospitals, and drug companies.
This statute implicates a number of significant constitutional issues: (I) Should the federal government, rather than the states, be empowered as the effective public health actor in such a crisis? Currently federal authority relies on the Stafford Act, which is far too narrow and restrictive to help in such an emergency; if, however, state and federal authorities are not clarified, we could face the prospect of paralysis or even intergovernmental violence. (2) Does the federal government have the constitutional power, in light of recent Supreme Court cases, to adopt legislation similar to that in the proposed model act? The federal government does have ample emergency powers in war and it may be that a terrorist attack could engage those authorities. But it might also be that an outbreak of an infectious epidemic will occur without the disclosure of its origin. Other federal consti-tutional powers, such as the commerce power, that might serve as the basis for federal action have been sharply restricted by recent caselaw as the United States moves toward market-state constitutional rules. (3) How might the civil liberties of Americans be safeguarded in such a statute, state or federal? Questions such as the limits of public health surveillance, the requirement of mandatory disease reporting, confidentiality, compul-ssory vaccination, testing and screening, isolation and quarantine, compulsory physical examination—all these issues implicate the Constitution's guarantee of due process and its commitment to personal and physical autonomy. Other questions might arise regarding the guarantee of equal protection. For example, in the early 1900s, San Francisco imposed a quarantine to halt a tuberculosis epidemic, but applied the quarantine only to Chinese Americans. In the 1980s HIV-infected students were often barred from public schools and several states passed laws allowing AIDS patients to be quarantined.
The potential twenty-first century conflict posed by this problem is one of civil war.