What should the courts of New York do during a “terrorist attack, a major radiological or chemical contamination or a widespread epidemic”? The New York Times has a detailed profile of a new manual, published by the state court system and the state bar association titled “New York State Public Health Legal Manual” that provides a breakdown of what the courts should do during different types of emergencies.
Let’s hope New York City’s response to Armageddon is more effective than their response to the most recent emergency–3 feet of snow. As I recall, the entire city was crippled for about 3 or 4 days.
So what is covered?
Quarantines. The closing of businesses. Mass evacuations, warrantless searches of homes. The slaughter of infected animals and the seizing of property. When laws can be suspended and whether infectious people can be isolated against their will or subjected to mandatory treatment. . . .
What about the Constitution?
The suspension of laws, it says, is subject to constitutional rights. But then it adds, “This should not prove to be an obstacle, because federal and state constitutional restraints permit expeditious actions in emergency situations.” . . .
When there is not enough medicine for everyone in an emergency, it notes, there is no clear legal guidepost. But it suggests legal decisions would most likely involve an analysis that “balances the obligation to save the greatest number of lives against the obligation to care for each single patient,” perhaps giving preference to those with the best chance to survive. It points out, though, that elderly and disabled people might have a legal claim if they are discriminated against at such moments of crisis.
Indeed, for judges, the manual may well be their only refresher on the case of Mary Mallon, “Typhoid Mary,”who was isolated on an island in the East River from 1915 until her death in 1938. … The manual provides a catalog of potential terrorism nightmares, like smallpox, anthrax or botulism episodes. It notes that courts have recognized far more rights over the past century or so than existed at the time of Typhoid Mary’s troubles…. It details procedures for assuring that people affected by emergency rules get hearings and lawyers. It mentions that in the event of an attack, officials can control traffic, communications and utilities. If they expect an attack, it says, they can compel mass evacuations.
After mentioning that houses or businesses can be commandeered to shelter victims or serve as medical dispensaries, it continues that “violations of individual property rights, if actionable, would generally be sorted out after the need for such actions has ended.”
And here are some excerpts from the Report:
Response to an ‘Attack’
Unconsolidated Laws §9129 [(1) “in the event of attack,” the state civil defense commission may “(a) assume direct operational control of any or all civil defense forces”; (b) order the use of personnel and equipment where needed; (d) “take, use or destroy any and all real or personal property, or any interest therein, necessary or proper for the purposes of civil defense”; and (e) execute any of the civil defense powers and duties of counties or cities]; (2) [in the event of attack, a county or city (a) may compel evacuations (includes “anticipation” of an attack); (b) “shall control all pedestrian and vehicular traffic, transportation and communication facilities and public utilities.
Constitutional Restraints
The power of government officers to search and seize private property in the course of administrative regulation is subject to considerable constitutional restraints to ensure that the government action is taken for proper purposes and respects the property rights of the affected persons. These restraints are lessened when addressing public health concerns, and are essentially set aside when exigent circumstances require immediate action to protect the public health. Local health officers may take any reasonable actions where health conditions require that immediate action be taken; violations of individual property rights, if actionable, would generally be sorted out after the need for such actions has ended.
Allocation of Resources in Disasters
Among the most critical, and most sensitive, decisions that have to be made by medical professionals in response to public health disasters is how to allocate scarce resources to vulnerable populations. Epidemics — or biological, chemical or radiological disasters — could put overwhelming demands on the need for medicines, vaccines, medical devices (such as ventilators), and hospital facilities. There are no statutes or rules directly addressing which vulnerable persons should get priority to limited health resources, although federal and state antidiscrimination laws protecting various populations (e.g., the elderly and the disabled) could constrain government actions that would otherwise have a discriminatory impact.