*This article is adapted from a longer paper published in the University of Michigan Journal of Law Reform. To access the original paper, please click here.
By April Xiaoyi Xu
A test-and-isolate system for detecting and monitoring new pathogens could avert future pandemics, but may face legal challenges in implementation.
The test-and-isolate model is described in a 2020 Scientific American article by biochemist David Ecker. Ecker recommends strategically placing modern, high-speed metagenomic sequencing technology in urban hospitals across the United States to flag previously-unknown pathogens before the infectious agents have the opportunity to spread widely and potentially start a new pandemic.
Under this model, during a time period without any apparent pandemics, the 200 biggest metropolitan hospitals in the U.S. would automatically run diagnostic tests up-front for novel causative agents among patients who visit the emergency room with severe respiratory symptoms that are possibly infectious. If such a system detects a sufficiently serious pathogen, public health agencies will send out diagnostic tests to all residents in the affected geographical area(s) within weeks and isolate those who test positive. This system also will be integrated with contact tracing and more standard outbreak response.
Despite the promise Ecker’s model holds for preventing the next public health tragedy, there are a number of legal challenges that may obstruct the practical implementation of such a model, as the law strives to balance pressing public health needs with individual civil liberties.
The status quo law in the U.S. demands a level of certainty and scientific evidence substantiating public health risks before authorities can legally mandate medical isolations, which stands at odds with Ecker’s model that prioritizes early detection and early response over exactitude on factors such as the novel disease’s incubation period and severity. There are, however, ambiguities and uncertainties in relevant federal and state law alike that may facilitate the lawful implementation of such a pandemic detection scheme.
Despite the U.S. government’s long history of quarantine and isolation orders in the medical context, their legal footing is outdated and crude. The authority to isolate and quarantine individuals in the communicable disease context “stands at a crowded intersection of federal, state, and constitutional law.”
At the federal level, the Commerce Clause gives Congress the authority to impose quarantines and isolations. As federal authority regarding isolation and quarantine is limited by the scope of executive orders, the U.S. Centers for Disease Control and Prevention defers to state authority in “their primary use of their own separate quarantine powers” and “only in rare situations” (such as “time-sensitive settings”) anticipates the need to use federal authority.
At the state level, the legal authority of individual states to investigate and control pandemic outbreaks is grounded in the police powers reserved to them under the Tenth Amendment. While states’ authority to order quarantines and isolations vary widely, there is a commonality most states share: state quarantine/isolation laws tend to be very old, with many relevant statutes ranging from forty to one hundred years old and do not reflect contemporary scientific understandings of diseases.
Because different states have distinct statutes regarding medical isolations and quarantines, this is likely to pose problems for the test-and-isolate model. The proposed network of 200 metropolitan hospitals running metagenomic tests are spread out across the country, which necessitates strong coordination and monitoring between the federal and state levels, as well as effective, timely inter-state communications. Uniformity and consistency are critical to the proposed future pandemic prevention model’s success. The current system and legal structure in place do not easily facilitate such coordination.
Time-related uncertainties are another crucial aspect of the proposed future pandemic detection architecture that likely will be subject to legal challenges. For the overall framework to function smoothly, authorities need to be able to isolate individuals who test positive for the new pathogen as early as possible. However, current laws make this objective difficult to implement in practice on several levels.
How soon can individuals be ordered to legally go through mandatory isolation in a pandemic? There is no clear answer. A number of U.S. states require the declaration of an official state of emergency before state health authorities can legally mandate isolations. But, by design, the test-and-isolate framework aims to isolate the individuals it deems threatening to the community’s public health as early as possible, to prevent a state of emergency in the first place. It would be contrary to the proposed system’s objective if one were to wait until the threat gets as serious as a state of emergency to begin isolating the individuals who will likely pose public health risks.
Indeed, a key downside of the swift response speed of this proposed model is that it encompasses a number of medical uncertainties, which may meet challenges from current legal standards. Given the law’s focus on key principles such as necessity and proportionality in balancing between public health needs and individuals’ civil rights (e.g. Fourteenth Amendment rights), unknown factors encompassed by the early test-and-isolate model will likely raise many an eyebrow among judges, legal academics, and others. For example, the recommended length of medical isolation for any given novel pathogen would likely be unknown, as the disease incubation period would most likely be unknown at this early stage of detection. And the response may not be proportional – at this early stage, the severity of the disease from the novel pathogen is also likely unknown.
Moreover, there is no guarantee that a future novel pathogen will trigger respiratory symptoms, so the model might potentially miss pathogens that could cause pandemics.
Nevertheless, Ecker’s pandemic prevention architecture shows potential as a creative solution to harness the power of the latest technological advances to solve the centuries-old threat of pandemic disease.
To facilitate the path forward, the federal and local government should incentivize research projects that incorporate the latest scientific and technological developments in early pandemic detection and response.
And while the law may pose challenges to mandatory isolation and quarantine, voluntary measures may offer an effective solution. One way to incentivize individuals to isolate/quarantine themselves voluntarily might be to offer financial incentives. New Jersey, for instance, offers job protection and compensation to persons under medical isolation/quarantine.
Additionally, public health communications efforts may help facilitate voluntary isolation and quarantine. In an interview with The Harvard Crimson, Michael Mina, an epidemiologist at the Harvard T.H. Chan School of Public Health, suggests that public health needs to have communications campaigns that are on par with those of large for-profit corporations such as Coca-Cola. The COVID-19 pandemic has already been a $16 trillion hit on the U.S. economy; it would be cost-efficient, to say the least, for the U.S. government to devote $2 billion into a marketing and awareness-raising campaign to encourage greater public compliance where the law does not necessarily do so.
April Xiaoyi Xu (J.D.) graduated from Harvard Law School this May.
