Wendy E. Parmet [Professor of Law, Northeastern University School of Law]: "The spread of H5N1, a new, deadly strain of avian influenza, has raised fears of a potential human pandemic. While the virus is not now easily transmissible to humans, scientists fear it may mutate to become more highly contagious, thereby triggering a pandemic.

In the last several years, the federal government has begun planning for such a possibility. In so doing, officials have rightly recognized the important role that law can play in protecting the public's health. Unfortunately, as a recent report by the ACLU shows, federal pandemic planning efforts, particularly with respect to what the government calls "legal preparedness," have unduly focused on the use of law to impose restraint on Americans and immunize officials in the event of an emergency. Reflecting a perspective more appropriate for the law enforcement and national security contexts than for public health, federal plans mistakenly assume an inevitable trade-off between health and liberty, and between health and accountability.

History shows that such trade-offs are both unnecessary and counterproductive. Americans overwhelmingly do not want to spread disease to others and are generally more than willing to follow public health advice — if they can trust public health officials and if official advice can be plausibly followed. Effective public health policies nurture trust and help communities develop the capacity to reduce the spread of disease and care for the ill. Rather than forcing individuals into quarantines, effective pandemic planning would provide individuals with the financial and practical means to comply with requests by health officials to stay at home — for example, by providing income replacement and ensuring that medications will be delivered.

Of course, there will always be a few people who deliberately engage in behaviors that expose others to infection. Sufficient laws already exist to deal with such cases. But focusing on such individuals distracts attention from the critical and expensive steps—including support for a crumbling public health infrastructure and development of an ample surge capacity within the health care system—that are necessary to prevent or mitigate a pandemic. Moreover, the adoption of a law enforcement/national security approach to public health poses a grave and interminable threat to civil liberties. The war against disease, after all, will never end. If health requires the suspension of civil liberties, they will be forever lost.

To encourage the development of an effective pandemic policy, the ACLU has proposed an alternative approach built on four fundamental principles:

• Health — The goal of preparing for a pandemic is to protect the lives and health of all people in America, not law enforcement or national security.
• Justice — Preparation for a potential pandemic (or any disaster) should ensure a fair distribution of the benefits and burdens of precautions and responses and equal respect for the dignity and autonomy of each individual.
• Transparency — Pandemic preparedness requires transparent communication of accurate information among all levels of government and the public in order to warrant public trust.
• Accountability — Everyone, including private individuals and organizations and government agencies and officials, should be accountable for their actions before, during and after an emergency.

A pandemic policy based on these principles would emphasize community engagement and accountability. It would protect minorities and disadvantaged individuals from discriminatory measures. And it would rely to the greatest degree possible on voluntary actions, ensuring that coercive measures are applied only when they are necessary as a last resort, and only with full constitutional protections. By working with rather than against the American public, and maintaining rather than suspending the role of law, Americans can have both their health and their liberty."