American Journal of Law & Medicine

Ebola and Human Rights: Post-9/11 Public Health and Safety in Epidemics

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.

  I. INTRODUCTION
 II. PUBLIC HEALTH AND SAFETY IN THE UNITED STATES SUPREME
     COURT
III. EBOLA IN THE UNITED STATES
 IV. EBOLA AND ITS METAPHORS
  V. EBOLA AND THE WORLD
  VI. CONCLUSION

I. INTRODUCTION

Sains populi supreme lex esto

Cicero, On the Laws, Book III, part 3, no. 8.

Cicero's injunction to the leaders of Rome has been used as a short hand to describe the primary obligation of a country's leader. (1) It is often translated to "[t]he health of the public is the supreme law," (2) and this is the way many public health officials use it. (3) But an equally authoritative translation of solus is "safety" or "welfare." (4) In his Leviathan, for example, Thomas Hobbes adopts "the safety of the people." (5) Nonetheless, health and safety, although often paired and used interchangeably, are very different concepts. The word chosen can induce very different government actions. For example, when President Obama addressed the nation on the threat of ISIS in December 2015, he could have been channeling Cicero when he said, "[a]s Commander-in-Chief, I have no greater responsibility than the security [safety] of the American people." (6) And after the San Bernardino massacre, Donald Trump added to his election slogan, "Make America Great Again," the phrase, "Make America Safe Again." (7) Similarly, the Commissioned Officers Association of the United States Public Health Service has a mission statement to "protect and enhance the public health and safety of the United States," and the role of the Public Health Services Commissioned Corps is to "protect US security and safety." (8)In all of these contexts health of the public has been replaced by the safety or security of the public.

In this Article I am primarily interested in the difference between the health of the population and the safety of the population, and what the concepts of health and safety mean to the public and to public health officials. I will suggest that population safety is primarily the goal of law enforcement domestically, and of the military internationally, and that population safety is only tangentially a function of public health. (9) I also suggest that since 9/11 public health has become entangled with population safety and national security, and this entanglement has obscured its mission, making public health less effective and less trusted. (10) In our post-9/11 era, when an epidemic can be viewed as a terrorist attack, (11) it is relatively easy for public health officials to declare an "emergency" and use the emergency framework to replace their focus on population health with an often counterproductive focus on population safety.

Conflating health and safety is not just a post-9/11 phenomenon, but the events of 9/11 have made this conflation more apparent and more dangerous to human rights. In this Article, I use the Ebola epidemic of 2014 to illustrate the tendency in post-9/11 epidemics to merge public health and public safety, and even to favor safety and security over health. In the context of global terrorism, epidemics become a justification for public health and other government officials to adopt emergency powers that undermine human rights and human dignity, (12) the support of which should be at the core of public health. New concepts of a "public health emergency," suggest that legal rules, especially those protecting human rights, should be compromised during an emergency. (13) Public health officials, especially those in the Public Health Services Commissioned Officer Corps, are more likely to see themselves as soldiers in uniform, rather than physicians or public health practitioners--and so is the public. (14)

The post-9/11 reframing of federal and state public health agencies as part of disaster preparedness, with an emphasis on bioterrorism and counterterrorism--and the new metaphors deployed to describe public health--have deformed our public health agencies and made them less trusted by the public and thus less able to prevent and respond to new infectious diseases, like Zika. (15) This is a tragedy for the public, as well as for public health. The United States' response to Ebola, both at home and abroad, presents an opportunity to reconsider the merger of public health and public safety. This Article has five parts, each of which is focused on the merger of health and safety in the epidemic context: Public Health and Safety in the United States Supreme Court, Ebola in the United States, Ebola and its Metaphors, and Ebola and the World.

II. PUBLIC HEALTH AND SAFETY IN THE UNITED STATES SUPREME COURT

The merger of public health and public safety is usually viewed as a natural and necessary emergency reaction to both epidemics and terrorist attacks, especially since 9/11. It is most explicitly acknowledged in "public health preparedness" or "all-hazards preparedness," but can also be found in basic public health and scientific research, now referred to as "dual use" research. (16) For example, the decision to publish research on inducing flu transmission in ferrets rested primarily on the views of national security and biosafety experts. (17) Further, use of torture and "enhanced interrogation" for national security is also justified by the public health rationale of "saving American lives." (18)

In 2012, the United States Supreme Court explicitly endorsed this post-9/11 public health-public safety merger in a troubling opinion on the constitutionality of routine strip searches of arrestees prior to confinement in a jail or prison. (19) The question before the Court was whether routine strip searches violate the Fourth Amendment's prohibition of "unreasonable" searches. (20) The case was decided five to four. (21) The majority used public health and medical rationales, combined with post-9/11 fear, to justify routinely strip searching the thirteen million Americans arrested annually in this country. (22) Justice Anthony Kennedy, who wrote the opinion for the Court, described American jails and prisons as "crowded" and "dangerous," writing, "[m]aintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face." (23) Under these circumstances, even a regulation that infringes on an inmate's constitutional rights must be upheld by the Court "if it is reasonably related to legitimate penological interests." (24)

The case begins with safety and security, but it quickly turns to health. The Court's first rationale for upholding routine strip searches is explicit public health danger: "[t]he danger of introducing lice or contagious infections" into the prison. (25) The Court cites public health literature for this proposition, including articles on MRSA and lice. (26) The second rationale is also health-related: "[p]ersons just arrested may have wounds or other injuries requiring immediate medical attention.... [which] may be difficult to identify and treat ... until detainees remove their clothes ...," (27) The third and fourth rationales are related to safety and security: to identify gang members by their tattoos, and to detect "concealed contraband" (e.g., weapons, drugs, alcohol, cell phones, lighters and matches, and money) that could be used to "disrupt the safe operation of a jail." (28)

The Court rejects the core argument that prison officials should be required to distinguish between those detained for minor offenses (who should not be strip searched without reasonable suspicion) and those arrested for serious crimes. (29) Justice Kennedy argues that corrections officials reasonably concluded that this distinction would be "unworkable." (30) He goes further, noting "[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals." (31) In support of this view, Kennedy cites three articles from the New York Times, two involving terrorists and one involving a serial killer. (32) The first terrorist, Timothy McVeigh, was stopped because "he was driving without a license plate"; the second, stopped two days before September 11, 2001, was stopped for speeding; and the third was also stopped for driving a vehicle without a license plate. (33) Kennedy concludes that most prison officials are simply not "well equipped" to make relevant legal distinctions during the intake process. (34)

Justice Stephen Breyer, who wrote the dissent, begins by looking at the privacy rights of the person being stripped and how these rights are violated: "A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person's body, is a serious invasion of privacy.... [and] such searches are inherently harmful, humiliating, and degrading." (35) Breyer believes this is especially the case when the reason for the arrest is a minor infraction, such that a strip search would not be considered a possibility by the person arrested. (36) He gives a number of examples, taken from the Amicus briefs, of arrestees who were subjected to strip searches: an elderly nun "arrested for trespassing during an antiwar demonstration"; "women ... strip-searched during periods of lactation or menstruation"; "victims of sexual violence"; people arrested for minor traffic offenses, including driving with "a noisy muffler" or "an inoperable headlight, failure] to use a turn signal, and riding a bicycle without an audible bell"; and violation of the "dog leash law." (37)

In Breyer's view, "the 'particular' invasion of interests, must be 'reasonably related' to the justifying 'penological interest' and the need must not be 'exaggerated.'" (38) Unlike the majority, Justice Breyer found no "convincing" reason for strip searches of those arrested for minor offenses in the absence of reasonable suspicion. (39) Finding contraband on people arrested for low level crimes is virtually unheard of, and detecting disease, preventing lice, and identifying gang members can be accomplished by routine pat downs, metal detectors, showering, and searching inmates' clothing. (40)

Since 9/11, searches have become almost routine, and the opinion makes strip searches of Americans seem necessary to protect the public's health and the safety of correctional officers. (41) Since all Americans who want to board an airplane are subject to routine pat downs, virtual strip searches, and, if suspicious, full strip searches, it might seem trivial to subject all of those who are arrested to full strip searches. All of these searches have the same rationale: they are necessary for our safety. Theoretically, searches done at the airport are consensual--at least for people who have travel options. Searches conducted in jails and prisons are not consensual in any way, so a different rationale is needed, one which is largely supplied in Florence by using health justifications. (42)

Not only does Kennedy list the maintenance of health of the prisoners as the first two "significant interests]" correctional officials have in conducting routine strip searches, but he also gives three specific examples complete with medical or correctional literature citations. (43) First, "[t]he danger of introducing lice or contagious infections, for example, is well documented." (44) Kennedy gives four citations for this proposition, none of which have anything to do with strip searches. (45) The first is an article by Grant Deger and David Quick on MRS A in County Jails, which recommends routine culturing of all skin and soft tissue infections. (46) The second, by Joseph Bick, is more general, noting that "[m]ost jails and prisons were constructed to maximize public safety, not to minimize the transmission of disease or to efficiently deliver health care." (47) Bick's primary recommendation is for more "hand washing areas, isolation rooms, and personal protective equipment." (48)

The third citation is to the Federal Bureau of Prisons' ("BOF") "Clinical Practice Guidelines" on MRS A, (49) and the fourth to BOF guidelines entitled "Lice and Scabies Protocol." (50) The MRSA guidance has nothing to do with strip searches, but does recommend that "[a]ll inmates undergoing intake medical screening and physical examinations should be carefully evaluated for skin infections." (51) It also notes that MRSA "cannot be clinically distinguished from infections caused by other staphylococcal strains or other bacterial pathogens. …

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