. 31
( 61 .)


numbers of victims.

Stockpiling and Distribution of Medical Resources
Creation of vaccines and medicines is meaningless unless the products of
that research can be pushed quickly and widely as needed. The biggest
challenge is knowing what to stockpile. For most natural emergencies
where victims likely suffer bruises, breaks, or burns, the priorities for stock-
piling medicines are well understood, but a bioattack can entail any of a
long list of pathogens dispersed by a wide variety of methods. An anthrax
vaccine will not be very useful to have on hand if the attack involves a virus.
If the attack involves a genetically modi¬ed organism or an exotic dis-
ease strain, all known vaccines may be frustratingly for naught. Manifest-
ing true bureaucratic perspective, most of¬cials have sought to stockpile
medicines that are relevant to diseases known to have been prepared by
past bioweapons programs. In an effort to widen the scope of public health
preparedness, the United States Department of Health and Human Ser-
vices (HHS) recently released the Public Health Emergency Countermea-
sure Enterprise Implementation Plan. According to the plan, acquisitions
of emergency medications through and beyond FY 2013 will include: broad

spectrum antibiotics; broad spectrum antivirals for ebola, junin, marburg,
and variola viruses; anthrax vaccine and antitoxin; smallpox vaccine and
antivirals; point-of-care diagnostics for all biological threat agents; and
¬lovirus medical countermeasures.31 Despite the progressive agenda of
the plan, however, to assume that perpetrators will repeat what has been
done before is likely a fallacious wager with thousands of lives hanging in
the balance.
Even if a country knows what to stockpile, there are no guar-
antees that it will be able to meet the demand. In 2004 and 2005,
the United States experienced a ¬‚u vaccine shortage when a princi-
pal supplier, Chiron, had contaminated facilities. Procuring more vac-
cines was dif¬cult; only ten vaccine companies produce over 80 per-
cent of the world™s in¬‚uenza vaccine. Multiple entrants into the sec-
tor face regulatory standards that vary from country to country.32 The
United States Food and Drug Administration (FDA) has resisted recog-
nizing foreign clinical trials toward vaccine approval (although Euro-
pean nations have been more ¬‚exible in this regard, and interna-
tional organizations that certify test results are moving toward more
uniformity.33 ) Moreover, nations have different market structures for man-
ufacturing vaccines. Japan™s system, for example, is almost entirely gov-
ernment sponsored whereas the U.S. and western European nations
rely on varying forms of private-public partnerships to generate needed
Most critical is that few nations have vaccine manufacturers within
their borders; most rely on external suppliers, though at levels that might
be inadequate in a pandemic. The onus of responsibility for supplying vac-
cines rests with the few countries capable of surge production (the United
States, Japan, and European nations), and there is no legal obligation that
these countries extend humanitarian assistance. There are serious ques-
tions as to how willing any State might be to provide “excess” medical
resources to other nations if domestic populations are suddenly threat-
ened by unforeseeable circumstances. It is reasonable to expect that in
a truly cataclysmic bioviolence pandemic, whatever atmosphere there is
for global cooperation will be tensely strained as political pressures rise in
favor of isolation and as curing us becomes a higher priority than curing
If there is a shortage, who should receive vaccine? Should health care
workers and responders have priority? If so, how can such people be read-
ily identi¬ed? It is troubling to prioritize persons to receive vaccines or

medications, and the specter of bigotry (real or imagined) is hard to avoid.
Having clear criteria and rules for applying that criteria in advance can help
preclude the view that decisions are unjust. Even so, questions remain.
How will vaccine be distributed to priority groups? How will vaccination
of priority groups be enforced; must people “prove” their rightful mem-
bership in a priority group? What can be done to reduce risks of fraudulent
assertions? Is there widespread con¬dence in these judgments? How will
security of the vaccine supply be maintained? Will force be used to deny
vaccines to nonpriority groups? These questions have no good answers,
but they are unavoidable especially if States rely exclusively on prepared-
ness measures to combat bioviolence. Planning to respond with vaccines
is essential, yet a severe bioattack might cataclysmically reveal the holes
in these preparations. 35

Compulsory Medical Interventions
In the wake of a contagious outbreak, it might be necessary to conduct
medical tests and administer medications to mass populations. Unlike
any other type of attack, there are two categories of victims: there are
the people who have been injured or exposed, and there are people who
might yet be exposed by inadvertent contact with victim carriers. In any
other attack, a victim™s refusal to accept medical assistance has implica-
tions for himself, perhaps for his family, but not really for society at large.
Yet following a contagious attack where signi¬cant numbers of persons are
exposed to harmful agents, a victim™s refusal to accept medical intervention
intolerably endangers everyone else. This raises a tension between public
safety and individual liberties. Moreover, during an outbreak, authorities
will have little time to discuss the issue much less to engage in a pro-
tracted legal process to get authority for forceful administration of medical
Nations and communities have the right, if not the moral mandate, to
protect citizens against disease even if such protection requires intrusive
tactics.36 Lives can be saved if authorities have a limited sphere of power
over individuals thought to be exposed to a pathogenic agent. The pub-
lic health concept of herd immunity asserts that a contagious disease will
less easily take hold in a population if the majority is immune “ even an
unprotected individual will therefore fare better amid a protected popula-
tion. Accordingly, for a population to be protected from disease, members
of that group must be immunized, and infected victims within a group
must be isolated from the whole. To allow individuals to exercise autonomy

con¬‚icts with the concept of herd immunity and is particularly perilous in
the context of intentionally in¬‚icted contagion.37
Do some reasons for refusal deserve respect even if other reasons
should be ignored? If an individual™s refusal does not deserve respect,
what should be done to overcome his or her resistance? There may be
any number of reasons why a person refuses examination and treatment
or both “ religious, political, or borne out of a sincere concern for one™s
own safety. Forced testing and medical intervention violates deeply held
principles of rights to privacy and bodily integrity. If public of¬cials exer-
cise compulsion in an emergency, their use of force may well be perceived
as truly coercive. This may erode trust in the public health system and law
enforcement during an emergency at the very moment when trust is most
urgently needed.38
There is a related issue. In a bioviolence crisis, especially one that
involves a novel pathogen, the only potential treatment might be drugs
that have not yet been thoroughly tested. If so, public health of¬cials will
have incomplete information about the medications™ ef¬cacy or risks. In
effect, their use will be akin to experimental interventions. To compel peo-
ple to receive unapproved medicines would seem to violate long-held eth-
ical objections to coerced medical experimentation.39 The rationale that
forceful intervention appropriately serves the public interest is weaker if,
absent thorough testing, it is uncertain whether the medication will actu-
ally be bene¬cial. Conceivably, the medication might cause more harm
than the disease. To abandon the principle of informed consent in such
circumstances might not be the best way to protect the public, much less
the individual.40
That various nations respect these principles to different degrees is
an impediment to a multinational response. If a national plan™s objective
is to perform medical interventions on as few persons as possible, then
responders must be allowed to diagnose potential victims to determine if
there is an actual need for treatment and to determine if the individual can
tolerate the treatment. Mass inoculation avoids the thorny task of testing
but is intrusive and perhaps dangerous for some people who have not
been exposed to the disease. During normal times, it is easy to say that
no person should be forced to receive drugs or a vaccine if it could cause
harm or even death. Amidst a global health crisis, however, there will likely
be pressures to view unprotected individuals as a signi¬cant danger to the
community and to believe that treating everyone identically is the best
way to avoid charges of discrimination.

One option here is to offer persons a choice: accept medical interven-
tion or be quarantined. In other words, forfeit your personal control over
your body or your liberty. This choice will likely be called a protective mea-
sure as distinct from punishment, but that distinction might be lost on the
person to whom the choice is posed. Due process concerns may arise if
of¬cials are authorized to determine that someone who refuses inspection
or treatment ought to be quarantined. According to one expert:

How will the government and health professionals determine if a person
is at risk for adverse effects? Prior to being vaccinated, will all individuals
receive a battery of diagnostic tests and ¬ll out a detailed medical history to
determine if they are HIV positive, had eczema as a child, are pregnant, or
have a yet-undiagnosed immune de¬ciency? Who will perform the testing,
and under what conditions will the information be collected, stored, and
disclosed? Will the patient have access to the medical records, and who
else will have access? What penalties will be in place if the information is
If a person is deemed to be at risk, and a decision is made not to vaccinate,
will that person be isolated or quarantined to shield her from the live virus
carried by her vaccinated family members, co-workers, and neighbors? Or
will those at risk be forced to be vaccinated if the government determines
that the risk of adverse effects is outweighed by the greater risk of death if

The legal standard here is not dif¬cult to articulate: a designated, com-
petent body should quarantine on the basis of a reasonable suspicion that
an individual has been exposed to and may have contracted a commu-
nicable disease if that individual is unwilling to submit to examination
and possible treatment, at least until the symptoms of the disease reveal
that the person quarantined does not continue to pose a potential risk. Yet
application of this legal standard in conditions of extraordinary pressure
where there is no opportunity for judicial oversight presents a far more
complicated reality. One legal expert offers four principles

as a basis for the appropriate exercise of public health powers consistent
with human rights norms: necessity, effective means, proportionality, and
fairness. Compliance with these principles will not necessarily prevent all
instances of government overreaching or abuse, but, at least, they require
adherence to the rule of law, while enabling government to protect the
public™s health and security.”42

These principles have extensive and well-appreciated meaning in inter-
national law, but there is little reason to believe that most nations are
prepared to maintain them.

Maintaining Public Con¬dence
Preparedness must also take into account public con¬dence and willing-
ness to cooperate with authorities in the event of a bioattack. The trau-
matic atmosphere induced by an attack might rapidly break down civil
order as persons attempt to ¬‚ee exposed areas. If ¬‚eeing persons have
already been infected, the disease might spread uncontrollably. More-
over, studies indicate that health disasters spawn mass psychogenic illness
(MPI “ due to panic, many people complain of an illness even though they
were never at risk of infection).43 Preparedness must include disseminat-
ing as much information as possible before a bioattack so that the public
understands what the response will be, why it will be that way, and how
they can contribute to its effectiveness.
Moreover, communication is essential for the plan to operate as
intended. Recipients of needed medicines must know where and how
to get them, and persons who are not entitled to them must under-
stand why and what they should do. Policy makers should decide in
advance how transparent to be about the development and availabil-
ity of medications. Agencies with specialized competence should han-
dle particular needs and set up a plan for what ought to be done once
an attack has been declared. The more that people willingly go to des-
ignated medical sites or simply stay within the con¬nes of their own
homes until the threat passes, the less resources must be allocated to
deal with these matters. The more controversial the response actions “
mandated quarantines, medical isolation, and medical interventions such
as vaccines “ the greater the need for accurate information to abate
In most societies, communication will be through the media, but this
raises more issues. The media is not merely a channel for passing emer-
gency messages to an awaiting public. It is a host of commentators and
de novo experts whose speech, in some States, is legally protected even
if what they say is palpable nonsense. Yet, reporting incorrect facts or
pointing blame can incite panic; the media can de¬‚ate or escalate that
panic whether intentionally or inadvertently.44 Worth remembering here
is that few attacks cause panic comparable to a contagious disease. Said
one leading expert, “[P]ublic health is a trust. That™s all it is: a trust between

government and the public it serves. The media can be that bridge, keeping
that trust intact, or it may not be.”45
Of¬cial government news outlets or reports created and hosted by gov-
ernment organizations are tried tactics. They inform the public in a clear
and coherent manner. The obvious problem with government news outlets
is that they can be manipulated to serve the government™s political ends.
During the SARS outbreak, the Chinese government was slow to react and
was even slower to allow its media to broadcast bad news as it occurred. The
same outbreak, however, showed to the world that information promul-
gated transparently and accurately can be an effective measure for slowing
the spread of disease.46 The WHO issued guidelines about the outbreak and
gave recommendations and alerts pertaining to SARS.47 Notably, the Hong
Kong Department of Health website attracted 7.2 million viewers in April
2003, ¬fteen times the number of viewers two months before.48
One legal expert suggests that the best way to balance civil liberties
with the public™s need for order during times of crisis is an emergency
constitution that would allow governments to use extraordinary measures
in terrorist attacks for only short periods of time.49 Authorities would be
required to report to the public all information that could be disseminated
safely (safeguards are necessary to protect investigations).50 By forcing the
government to produce information, an emergency constitution would
allow the public to hear the information it needs to stay calm. However, it
is a snarled and probably impossible exercise to envision what that emer-
gency constitution might provide for a truly global catastrophe involving


Quarantines are a heavy-handed response to bioviolence. They necessar-
ily rope in the affected and unaffected, the innocent, and hopefully the
culprits into a con¬ned space where their af¬‚iction cannot harm others
outside the boundary. In contrast to isolating those persons who are clearly
exposed, a quarantine draws a larger circle to include persons who might
have had contact with the exposed, that is, potential carriers. Quarantines
add the burdens of con¬nement to the medical burdens of the outbreak.
Says one expert, “[No matter how intelligently and humanely a quaran-
tine is administered] it is surely worse to live, and indeed to contract an
infectious disease, within a quarantine than without it.”51 The dif¬culties


. 31
( 61 .)