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Hank Greenberg: The Laws That Guide A Public Health Crisis

The fast-moving novel coronavirus has upended life as we know it in a blink of an eye.

As our government rushes to contain the Coronavirus, it races across the state, nation and globe.  It is forcing mass cancellations, curtailing our travel, and compelling businesses, schools and courtrooms to close indefinitely.

Large communities have been significantly confined.  There are curfews and  even talk of “shelter in place” orders.

We may all soon find ourselves cloistered at home in order to “flatten the curve,” curtailing transmission in hopes of preventing our fragile health care system from being overwhelmed.

It is comforting to know that our elected officials and public health officers have a wide array of tools at their disposal to combat this public health emergency. 

There is a vast body of law governing the containment of communicable diseases.  Statutes and regulations even authorize, in extreme circumstances, mandatory quarantine and isolation and the inspection and seizure of property.

Notably, these laws are not new.  Their origins can be traced back to the late 19th and early 20th centuries when medical science could do little to combat deadly contagions, like polio, diphtheria, typhoid and smallpox. Such extreme measures were necessary to maintain order and prevent widespread infection.   

Then (as now) the penalties for failing to comply with quarantine orders were severe.  Mary Mallon, better known as “Typhoid Mary” was an Irish cook thought to have infected 51 people with typhoid fever, three of whom died.  She was quarantined for years on an island in Manhattan’s East River, because she refused to comply with directives from health authorities.

Thankfully, over the past century, medical science and the law have come a long way.  But the need to balance the rights of the individual against the good of society at large remains. 

While the public has a right to be protected from the coronavirus, American citizens also have constitutional rights that must be considered in addressing this crisis.  This is fundamental to the very fabric of who we are as a country.  We are not China.  The draconian measures employed there to battle COVID-19 — while reportedly successful — might not pass legal muster on these shores.

Our liberty cannot be taken away from us without due process of law and our homes and property cannot be unreasonably searched and seized.  These rights define us as American and must be carefully weighed and balanced by government officials when making judgments about how best to proceed in the current circumstances. 

Make no mistake:  We are blessed in New York State to have a Governor willing to lead, and capable of doing so, supported by world class public health officials.  They include highly credentialled medial doctors, PhDs and epidemiologists — people who have devoted their professional lives to preparing for situations like this. 

I have experience with this.  In a past life, I was General Counsel of the State Department of Health and saw, up close, the extraordinary level of expertise and commitment our public health professionals bring to their work, every day, to keep us safe and healthy. 

In the absence of a sufficiently rapid and cohesive response from the federal government, Governor Cuomo and our State Health Departments are appropriately exercising their authority and working to support local efforts.  The Governor has declared a state of emergency to help New York more expeditiously contain the spread of the virus, allowing for the suspension of certain requirements to enable faster procurement of medical tests, supplies and staff.

We, as citizens, have a role to play.  We must take social distancing directives seriously.  We must guard against stigmatizing those who have been infected or exposed to people who are infected.  We’ve learned from crises past that in times like this, our human propensity to turn against one another is our greatest weakness.  We are strongest when we pull together.

We must also protect against the kind of panic and overreaction that we saw during the Ebola outbreak a few years ago, when heroic health care workers who treated people with the virus in West Africa — and were not infected — were nevertheless placed in quarantine for weeks when they returned home.

This is the time to listen to our health care experts and follow their advice. They have vast expertise and experience over the years, successfully combating other communicable diseases.  If they tell us to wash our hands and avoid touching our faces, we should do it.

Now is a time for all of us to act wisely, soberly and judiciously, with due respect for the rights and freedoms that are the hallmark of our democratic republic.

Henry ‘Hank’ Greenberg is president of the New York State Bar Association and is former general counsel for the state Department of Health.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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