Chapter 8.B.1 (6.B.1) Constitutional Principles
Notes: The State Police Power and Federalism
New Note 9.5. National and International Responses to Swine Flu (page 895/605)
a) Travel and Trade Restrictions
The Director-General of the WHO may issue recommendations of health measures that, “on the basis of a risk assessment appropriate to the circumstances, are not more restrictive of international traffic and trade and are not more intrusive to persons than reasonable available alternatives that would achieve the appropriate level of health protection” (IHR, Article 17(d)). See WHO, International Health Regulations, http://www.who.int/ihr/en/.
A State Party may require travelers, on arrival or departure, to submit to “a non-invasive medical examination which is the least intrusive examination that would achieve the public health objective” (IHR, Article 23(1)(a)(iii)). States Parties may also require affected or suspect travelers to submit to further examination on a case-by-case basis, so long as the examination is as non-invasive as possible (IHR, Article 23(2)).
The CDC periodically issues guidelines regarding monitoring airplane passengers for infections. See Centers for Disease Control, Interim Guidance for Airlines Regarding Flight Crews Arriving from Domestic and International Areas Affected by Swine Influenza, available at http://www.cdc.gov/h1n1flu/guidance/air-crew-dom-intl.htm. The guidelines provide:
If a person shows observable signs of novel influenza A (H1N1) illness while on a flight bound for the U.S., the captain is required by law to report the illness to CDC Quarantine Station, in the jurisdiction of the airport where the plane is expected to land prior to arrival or as soon as illness is noted. Quarantine officials will arrange for appropriate medical assistance to be available when the airplane lands and will notify state and local health departments and the appropriate CDC officials. Quarantine officials will work with the airline and local and state health departments to assist with medical transportation of the patient upon arrival, disease control and containment measures, passenger and crew notification and surveillance activities, and airline disinfection procedures.
Id.
China has confined many North American travelers to hotels and hospitals since the beginning of the swine flu outbreak. The number of Mexicans quarantined has been particularly high. The Mexican government has accused China of discriminating against Mexican nationals and failing to comply with international regulations relating to quarantine practices. See Andrew Jacobs, Mexico Objects to Quarantine in China, NY Times, May 4, 2009 [article].
The U.S. Equal Employment Opportunity Commission has posted a notice reminding readers that Title VII of the Civil Rights Act “prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans.” U.S. Equal Employment Opportunity Commission -- Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu), http://www.eeoc.gov/facts/h1n1.html.
Despite clear statements from the WHO that the H1N1 virus is not transmitted through food, many countries imposed bans on the importation of North American pork products in response to the swine flu outbreak. See Andrew Martin and Clifford Krauss, Pork Industry Fights Concerns Over Swine Flu, NY Times, April 28, 2009 [article].
As of late summer 2009, health officials were planning for the possibility that that the H1N1 virus would return in more virulent form during the winter flu season in North America. See CDC, H1N1 Flu (Swine Flu), available at http://www.cdc.gov/h1n1flu/.
b) School closures
Many U.S. schools closed temporarily due to the H1N1 virus in the spring of 2009. As of May 25, 2009, New York had closed over 40 schools. Mayor Michael R. Bloomberg stated that school closures were not an effective way to limit the spread of the virus, as children being kept at home would “instead go to the shopping mall or go to the park.” See article by Sewell Chan and A.G. Sulzberger, Mayor Says School Closings Won’t Stop Swine Flu’s Spread, NY Times, May 25, 2009.
How should universities respond to the threat of H1N1 during the 2009-10 academic year? Should law schools be closed if a student is diagnosed with H1N1 virus? Should the A.B.A. relax its requirements regarding student attendance and “days of school” requirements for A.B.A.-approved law schools? See American Bar Association, Section on Legal Education, Standards and Rules of Procedure for the Approval of Law Schools, 2009/10 (Section 3.04(d)), available at http://www.abanet.org/legaled/standards/2009-2010%20Standards.pdf.
For more on school closure
policies in response to pandemic influenza, see U.S. Centers for Disease Control
and Prevention, H1N1 Flu (Swine Flu): Resources for K-12
Schools, available at:
http://www.cdc.gov/h1n1flu/schools/; J.G. Hodge, The Legal Landscape
for School Closures in Response to Pandemic Flu or Other Public Health Threats,
7 BioSecur Bioterror 45 (2009); and B.E. Berkman, Mitigating Pandemic
Influenza: The Ethics of Implementing a School Closure Policy, 14 J. Public
Health Manag Pract. 372 (2008).
Problem: HPV Vaccination (page 896/606)
Should the HPV vaccine be made compulsory for immigrants in the same way as vaccinations for measles or other transmissible diseases? See Miriam Jordan, Gardasil Requirement for Immigrants Stirs Backlash, Wall St. J., Oct. 1, 2008, available at: http://online.wsj.com/article/SB122282354408892791.html/
New Problem: Vaccines and Autism (page 897/606)
Acceptance of vaccination is related to public confidence in the safety of vaccines. Some parents believe there is a link between childhood vaccinations and autism spectrum disorders, although this belief has not been supported by scientific research.
Most vaccination injury claims are reviewed under a special federal vaccine compensation system. See Vaccine Program Background, http://www.uscfc.uscourts.gov/sites/default/files/vaccine_files/VICP_General_Background.pdf. The claim that childhood vaccines may cause autism has been explored and rejected in a number of test cases conducted in the U.S. Court of Federal Claims over the past several years. See http://www.uscfc.uscourts.gov/node/5026/.
A 2008 settlement of an autism claim may nonetheless have reinforced lay-person concerns about the safety of vaccination for children. Gardiner Harris, Deal in Autism Case Fuels Debate on Vaccine, N.Y. Times, March 8, 2008; Paul A. Offit, Vaccine and Autism Revisited – The Hannah Poling Case, 358:20 New Eng. J. Med. 2091 (2008)(arguing that the acceptance of causation in the Poling case was based on insufficient evidence, and “will further erode confidence in vaccines”). For a response from Hannah Poling’s father, see See Jon S. Poling, Vaccines and Autism Revisited, 359 New Eng. J. Med. 655 (2008).
Consider this Chapter’s discuss of vaccination policy and Chapter 4’s discussion of vaccine liability (Note 7, pages 390-91). Should courts and litigants consider public confidence in vaccination as a factor in making decisions about liability in vaccination cases?
New Problem: Swine Flu and Vaccine Distribution (page 897/606)
Many countries revised their pandemic influenza response plans following the rash of avian flu outbreaks in the mid-2000s. Because scientists had been predicting that the next global pandemic would be caused by avian flu, vaccine distribution strategies developed in the past several years tend to focus on vaccinating populations at particular risk for bird flu: for example, children and the elderly. See Ira M. Longini, Jr. & M. Elizabeth Halloran, Strategy for distribution of Influenza Vaccine to High-Risk Groups and Children, 161 Am J Epidemiol 303-06 (2005). However, younger adults appear to more at risk for swine flu than older adults. See Gerardo Chowell et al., Severe Respiratory Disease Concurrent with the Circulation of H1N1 Influenza, 361 N. Eng. J. Med. 674 (2009).
Should countries revise their vaccine distribution plans to reflect the reality of how a particular virus is affecting different populations? For example, if people over 65 years of age are not at a higher risk for morbidity and mortality due to swine flu, should they still be given priority to vaccines?
Do you think vaccine distribution strategies should consider economic as well as health benefits? See K.L. Nichol & J.J. Treanor, Vaccines for seasonal and pandemic influenza, 194 J Infect Dis. S111-8 (2006) (vaccinating individuals who are not members of the “high-priority groups” may have significant economic as well as health benefits).
Dr. Marie-Paul Kieny, Director of the Initiative for Vaccine Research, World Health Organization, has stated that obese individuals are at a higher risk of contracting the H1N1 virus. Kieny suggests that countries may choose to give obese individuals, as a group, priority in receiving vaccines. Do you think that countries such as the United States will treat obese individuals as a ‘vulnerable population’ for the purpose of vaccine distribution? See World Health Organization, Pandemic (H1N1), July 13, 2009 press briefings http://www.who.int/mediacentre/multimedia/swineflupressbriefings/en/index.html .
You can find the latest H1N1 vaccination recommendations and other information about swine flu at http://www.cdc.gov/H1N1FLU/.