SARS and the Law:
Challenges at the Border and in the Backyard

By PETER SPIRO
Tuesday, Apr. 29, 2003

The world may be facing the early phases of the greatest public health crisis in many decades, and the first since the advent of globalization. Since its identification earlier this spring in southeast Asia, severe acute respiratory syndrome (SARS), a communicable viral disease, has infected more than 5,000 individuals, predominantly in China and Hong Kong, with a substantial number of cases in Canada and Singapore.

SARS has an alarmingly high, and climbing, morbidity rate, now approaching 6%. Meanwhile, a vaccine may be several years away, and the time when a cure may be developed is uncertain. Some experts are predicting a global pandemic, on the level of the 1919-20 flu, which felled some 20 million worldwide - despite its significantly lower morbidity rate, in the neighborhood of 1%.

As CDC director Julie Gerberding comments, it's been mostly a matter of "good luck" that the U.S. hasn't yet confronted a significant SARS outbreak. As of the latest counts, there are fewer than 50 probable SARS cases in the U.S., almost all involving individuals who traveled to affected Asian countries. But as demonstrated by the outbreak just across the border in Toronto, the threat to the U.S. is clear.

If the SARS crisis does come to the U.S., it will implicate a host of legal issues here - relating to public health, immigration, constitutional law, and international law.

Stopping SARS at the Border

The U.S. may so far have enjoyed good luck in escaping a direct SARS hit, but officials aren't leaving anything to chance. The best hope for averting a SARS epidemic at home will be to keep SARS out at the nation's borders.

Federal immigration laws authorize immigration authorities to exclude non-citizens who are determined to have a "communicable disease of public health significance." Immigration law also authorizes the President by proclamation to suspend the entry of any group of aliens whose entry he deems to detrimental to the interests of the United States. This little-used power could be deployed to exclude all aliens from affected areas, a policy Taiwan has recently implemented.

Under the Public Health Service Act, any individual (citizens included) may be quarantined at an international port of entry if they are reasonably believed to be carrying a designated communicable disease. As of an April 4 Executive Order by President Bush, SARS is now a designated disease.

Thus, in tandem with airline screening, federal health authorities are carefully monitoring travelers from affected areas in Asia for SARS symptoms. With an estimated 25,000 individuals entering the country legally from Asia on a daily basis, that is a tall order. A single SARS- infected person getting through the net could bring down the border strategy.

The U.S. government might also front-end the border strategy through restrictions on travel by American citizens to affected areas. In a series of Cold War era decisions, the Supreme Court upheld international travel restrictions for national security reasons, and one can imagine the same rationale applying to a public health emergency. How practical it would be to prohibit - and police - a travel ban to countries such as China is another question.

A Maginot Line Against SARS?

The initial SARS defense, then, hinges on effective border control. But U.S. borders are far from under control. There are an estimated 8-9 million undocumented aliens now in the United States, a figure growing by as many as 500,000 per year. China is the largest contributor to undocumented immigration outside the western hemisphere, funneling illegal aliens into the United States through elaborate smuggling networks. SARS could just as easily make serious inroads into the U.S. through this backdoor rather than the front.

The first reflex to this challenge - as in the terrorism context - might be to crack down further on illegal immigration. That might help in the fight against terrorism, where improved intelligence on terrorist networks can snare targeted individuals at the border.

But it's unlikely to work in the public health context, where a carrier may be unknowing and will have acquired the disease through a short chain of happenstance. The only strategy in theory likely to address this sort of challenge would be sealing the borders off altogether. But that's an impossible task.

As a result, the best strategy to combat SARS may be counterintuitive: Expand legal immigration. Legal immigration is supervised immigration - in which health screening is possible and quarantine measures can be applied as appropriate.

There is also an argument here for extending an amnesty for aliens already present in the United States illegally. For fear of provoking the attention of the immigration authorities, undocumented aliens tend to shrink from any contact with public officials - meaning authorities may not know of an outbreak among them until it is too late.

Last week, a run on a bank in New York's Chinatown was accelerated by the belief among undocumented alien depositors that making a claim with the FDIC, to recover for the loss of an insured deposit, might result in deportation. Similarly, an undocumented alien with SARS symptoms might well delay seeking medical care until after he has contaminated others, initiating a cascade of infection. Only an amnesty would eliminate the incentives among undocumented aliens to keep the illness secret.

Balancing Public Health and Individual Rights

If the U.S. did witness a major SARS outbreak, could public health authorities undertake quarantines of the sort witnessed in Beijing - in which thousands of employees and patients are being forcibly restricted in hospitals? What about isolation of individuals who are not ill, but have been exposed to SARS?

These are not academic questions. Canada has apparently paid for its failure to undertake draconian control measures like these. A sole health care worker who refused to comply with voluntary isolation measures was apparently responsible for infecting dozens in a Toronto religious community. That outbreak may have prompted the World Health Organization's recent advisory against travel to the city, which immediately resulted in significant lost tourist and other revenues.

All fifty states authorize public health quarantines in some form. ("Quarantine" involves the restraint of someone only exposed to a disease, where "isolation" is used for those already ill.) State laws also provide for compelled medical examinations relating to communicable diseases in some circumstances.

Quarantines involve deprivations of liberty and as such implicate due process concerns. Whatever the reason, restricting a person's freedom of movement may separate that person from family, occupation, or school. Mass quarantines would inevitably involve confining the infected with the healthy, at their peril. Quarantines come at a cost.

As a result, quarantines on anything but the smallest scale would almost certainly face immediate legal challenges. Constitutional questions would focus on the criteria for confinement and the procedures used for imposing and reviewing particular quarantine decisions.

No other public health crisis of this sort has been confronted since the dawn of the civil rights era. For all the talk of how recent anti-terrorism measures might cut into individual rights, SARS might prove the more serious threat. The potentially devastating impact of SARS, as already evidenced in Asia, could lead courts to sacrifice civil liberties at the altar of public health - perhaps justifiably.

The Silver Lining in SARS

Some good may emerge from the SARS episode. At the international level, the SARS crisis is forcing intensive multilateral efforts at containment. Assuming that the epidemic is contained, the SARS experience may pave the way for requiring more proactive responses by national governments as a matter of international law, by way of averting future epidemics.

China's failure to alert the world health community to the first cases of the new disease early this year probably eliminated any hope of eradicating the disease at its source. Surprisingly, however - as detailed by Indiana University Law School's David Fidler, the leading authority on international health law - China's silence was probably consistent with international law.

No doubt, this facet of international law will have to change. We can expect calls for a tightening of international legal requirements to report new illnesses.

SARS could push Beijing towards greater accountability not just internationally but also at home. The Chinese government has faced unprecedented domestic scrutiny for its early failure to address the outbreak. SARS may not bring democracy to China, but it may empower the Chinese people to demand more of their rulers.

Finally, SARS may impress on even the most ardent unilateralists within the Bush administration that on some issues there is simply no alternative to international cooperation. Coming out of Iraq, that's an important reminder that on some issues, at least, there is no going it alone.


Peter Spiro, a former State Department lawyer and NSC staff member, teaches immigration and international law subjects at Hofstra Law School.

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