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Efficacy in Emergency Legal Preparedness Underlying the 2014 Ebola Outbreak Texas A&M Law Review Volume 2 Issue 3 2015 Efficacy in Emergency Legal Preparedness Underlying the 2014 Ebola Outbreak James G. Hodge Jr. Leila Barraza Kim Weidenaar Alicia Corbett Gregory Measer See next page for additional authors Follow this and additional works at: https://scholarship.law.tamu.edu/lawreview Part of the Law Commons Recommended Citation James G. Hodge Jr., Leila Barraza, Kim Weidenaar, Alicia Corbett, Gregory Measer & Asha M. Agrawal, Efficacy in Emergency Legal Preparedness Underlying the 2014 Ebola Outbreak, 2 Tex. A&M L. Rev. 353 (2015). Available at: https://doi.org/10.37419/LR.V2.I3.1 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Texas A&M Law Review by an authorized editor of Texas A&M Law Scholarship. For more information, please contact [email protected]. Efficacy in Emergency Legal Preparedness Underlying the 2014 Ebola Outbreak Authors James G. Hodge Jr., Leila Barraza, Kim Weidenaar, Alicia Corbett, Gregory Measer, and Asha M. Agrawal This article is available in Texas A&M Law Review: https://scholarship.law.tamu.edu/lawreview/vol2/iss3/3 ARTICLES EFFICACY IN EMERGENCY LEGAL PREPAREDNESS UNDERLYING THE 2014 EBOLA OUTBREAK† By James G. Hodge, Jr., JD, LLM* Leila Barraza, JD, MPH** Kim Weidenaar, JD*** Alicia Corbett, JD**** Gregory Measer***** Asha M. Agrawal****** TABLE OF CONTENTS I. INTRODUCTION .......................................... 354 II. GLOBAL AND DOMESTIC HEALTH IMPACTS OF EBOLA .... 357 III. EMERGENCY DECLARATIONS AND SOCIAL DISTANCING MEASURES .............................................. 360 IV. EMERGENCY RESPONSES AND HUMAN RIGHTS ......... 365 V. EMPIRICAL FOUNDATIONS OF PUBLIC HEALTH LEGAL MEASURES .............................................. 368 †This Article is based in part on a commentary in the Journal of Law, Medicine, and Ethics and related presentation by James G. Hodge, Jr. on September 23, 2014 at the Sandra Day O’Connor College of Law, Arizona State University (“ASU”). See James G. Hodge, Jr. et al., Global Emergency Legal Responses to the 2014 Ebola Outbreak Public Health and the Law, 42 J.L. MED. & ETHICS 595 (2014). While surveillance data related to the Ebola outbreak are updated through February 11, 2015, specific analyses of law and policy issues are limited to available information through October 31, 2014. The Authors acknowledge the following individuals for their expert input, research, and editing assistance: Anna Muldoon, MPH, Science Policy Advisor, Assistant Secretary for Preparedness and Response (“ASPR”), U.S. Department of Health and Human Services (“HHS”); Matt Saria and Rose Meltzer at the Sandra Day O’Connor College of Law, ASU; and Andrea Logue at the Mel and Enid Zuckerman College of Public Health, University of Arizona. *Associate Dean and Professor of Public Health Law and Ethics; Director, Public Health Law and Policy Program; Director, Network for Public Health Law— Western Region Office, Sandra Day O’Connor College of Law, ASU. ** Assistant Professor, Mel and Enid Zuckerman College of Public Health, Uni- versity of Arizona. *** Fellow, Public Health Law and Policy Program, Deputy Director, Network for Public Health Law—Western Region Office, Sandra Day O’Connor College of Law, ASU. **** Of Counsel, Gallagher & Kennedy, P.A., Phoenix, Arizona; Affiliated Profes- sional, Public Health Law and Policy Program, Sandra Day O’Connor College of Law, ASU. *****Senior Legal Researcher, Public Health Law and Policy Program, J.D. Candi- date (2015), Sandra Day O’Connor College of Law, ASU. ******Senior Legal Researcher, Public Health Law and Policy Program, J.D. Candi- date (2016), Sandra Day O’Connor College of Law, ASU. DOI: https://doi.org/10.37419/LR.V2.I3.1 353 354 TEXAS A&M LAW REVIEW [Vol. 2 A. Case Study 1 – Isolation ............................ 369 B. Case Study 2 – Border Closures..................... 372 C. Case Study 3 – Lockdown .......................... 375 D. Essence of Efficacy of Emergency Public Health Powers .............................................. 377 VI. CONCLUSION ............................................ 380 I. INTRODUCTION From its relative obscurity over the past three decades,1 Ebola viral disease (“EVD”) emerged as a substantial global biothreat in 2014 and 2015. The current outbreak of varied strains of Ebola, beginning in March 2014 in Guinea, is projected to impact hundreds of thousands of people2 over months,3 years, or even indefinitely.4 As of October 31, 2014, the spread of EVD was concentrated in several Af- rican countries (e.g., Sierra Leone, Liberia, Guinea, and an unrelated outbreak in Democratic Republic of Congo),5 with limited additional cases in Nigeria, Senegal, and Mali. Over 2,700 people are known to have died from Ebola in fewer than eight months in Liberia alone; the actual death toll may be far higher.6 At one point, the U.S. Centers for Disease Control and Prevention (“CDC”) estimated a worst-case scenario of 1.4 million new cases arising largely in already affected countries by early 2015.7 Reported cases in the affected regions are considerably less than these estimates, but with a fatality rate hover- 1. Outbreaks Chronology: Ebola Virus Disease, U.S. CTRS. FOR DISEASE CON- TROL & PREVENTION, http://www.cdc.gov/vhf/ebola/resources/outbreak-table.html #one (last updated Feb. 5, 2015). 2. Nick Cumming-Bruce & Alan Cowell, Ebola Could Strike 20,000, World Health Agency Says, N.Y. TIMES, Aug. 28, 2014, at A7, available at http://www.nytimes .com/2014/08/29/world/africa/ebola-outbreak.html; Sarah Larimer, 20,000 Cases or 100,000? How Researchers Predict Ebola’s Spread, WASH. POST (Sept. 8, 2014), http:// www.washingtonpost.com/news/to-your-health/wp/2014/09/08/20000-cases-or-100000- how-researchers-predict-ebolas-spread/. 3. Jon Harper, Dempsey: Ebola Mission Will Probably Last 18 Months, STARS & STRIPES (Nov. 6, 2014), http://www.stripes.com/news/dempsey-ebola-mission-will- probably-last-18-months-1.312528. 4. Denise Grady, U.S. Scientists See Long Fight Against Ebola, N.Y. TIMES, Sept. 12, 2014, at A1, available at http://www.nytimes.com/2014/09/13/world/africa/us-scien- tists-see-long-fight-against-ebola.html?_r=1&referrer=. 5. 2014 Ebola Outbreak in West Africa, U.S. CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/previous-up- dates.html (last updated Feb. 6, 2014) [hereinafter U.S. CTRS. FOR DISEASE CONTROL & PREVENTION, 2014 Ebola Outbreak in West Africa]. 6. EBOLA RESPONSE ROADMAP SITUATION REPORT UPDATE, WORLD HEALTH ORG. 2 tbl.1 (2014), http://apps.who.int/iris/bitstream/10665/137592/1/roadmapsitrep_7 Nov2014_eng.pdf?ua=1. 7. Questions and Answers: Estimating the Future Number of Cases in the Ebola Epidemic—Liberia and Sierra Leone, 2014–2015, U.S. CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/qa-mmwr- estimating-future-cases.html (last updated Nov. 19, 2014). 2015] EMERGENCY LEGAL PREPAREDNESS 355 ing near 50%,8 thousands more West Africans may perish before the end of this current outbreak.9 Countering these dire threats are multiple international and re- gional response efforts fueled by hundreds of millions of relief dollars. Critically-needed supplies are being funneled to West Africa. Thousands of health care workers (“HCWs”) from the United States, Europe, China, and Cuba, among other countries, are responding de- spite significant risks to their own health and safety.10 Rapid develop- ment and testing of vaccines and treatments are underway. In the interim, an array of existing experimental medications is currently be- ing used or considered on a limited basis.11 These interventions may help lower human morbidity and mortality rates related to EVD so long as they are well-timed, efficacious, and ethically allocated. Yet waiting for a medical panacea or vaccine that may be months or years in the making is not an option when hundreds of people are dying each week throughout West Africa.12 Immediate public health responses include declarations of emergencies at the international, na- tional, and regional levels. On August 8, 2014, the World Health Or- ganization (“WHO”) declared a public health emergency of international concern.13 Several West African nations have also de- clared formal states of emergency.14 Other countries or regions at risk for outbreaks may follow suit.15 8. WORLD HEALTH ORG., Ebola Virus Disease, West Africa—Update, UN GLOBAL EBOLA RESPONSE (Aug. 28, 2014), http://www.afro.who.int/en/clusters-a- programmes/dpc/epidemic-a-pandemic-alert-and-response/outbreak-news/4264-ebola -virus-disease-west-africa-28-august-2014.html [hereinafter WORLD HEALTH ORG., Ebola Virus Disease, West Africa]. 9. Marcelo F.C. Gomes et al., Assessing the International Spreading Risk Associ- ated with the 2014 West African Ebola Outbreak, PLOS CURRENTS: OUTBREAKS (Sept. 2, 2014), http://currents.plos.org/outbreaks/article/assessing-the-international- spreading-risk-associated-with-the-2014-west-african-ebola-outbreak/. 10. WORLD HEALTH ORG., Ebola Virus Disease, West Africa, supra note 8, at 6. 11. HHS Advances Development of Ebola Vaccine, U.S. DEP’TOF HEALTH & HUMAN SERVS. (Oct. 16, 2014), http://www.hhs.gov/news/press/2014pres/10/201410 16a.html. 12. Rick Gladstone, W.H.O. Assails Delay in Ebola Vaccine, N.Y. TIMES, Nov. 3, 2014, at A11, available at http://www.nytimes.com/2014/11/04/world/africa/ebola-cure- delayed-by-drug-industrys-drive-for-profit-who-leader-says.html?ac- tion=click&contentCollection=Africa&region=footer&module=moreInSection&pg type=article. 13. Statement on the 1st Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa, WORLD HEALTH ORG. (Aug. 8, 2014), http:// www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/. 14. James G. Hodge, Jr., Emergency Legal Preparedness Concerning Ebola: A Pri- mer, NETWORK FOR PUB. HEALTH L. 8, https://www.networkforphl.org/_asset/dzf8u4/ Ebola-Outbreak-2014---Network-Overview.pdf (last updated Dec.
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