More Empathy, Less Hysteria: A Q&A on Ebola

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Rutgers School of Law-Camden Professor Kimberly Mutcherson teaches courses in health law policy and HIV/AIDS, bioethics, tort, and family law. Her scholarly work focuses on issues at the intersection of health law, bioethics and family law. Her writing has appeared in a variety of scholarly journals including Cornell Journal of Law and Public Policy, Harvard Journal of Law & Gender (online), Columbia Journal of Gender and Law, and Yale Journal of Law and Feminism. Most recently, Mutcherson has been fielding calls from media on the ethical implications of treating Ebola patients in Africa and in the United States.

The rush for a vaccine to be developed will unearth ethical concerns about how it will be tested and how a safe and effective vaccine will be deployed into the wider population. What concerns are most troubling from a legal and ethical stand point?

Mutcherson: Whenever research involves human subjects there are heightened concerns about making sure that those subjects are informed about the risks of their participation in research. It’s also imperative that research subjects understand that the drug being tested might not work for them and in placebo controlled trials that they might not get the drug at all. We also want to make sure that there have been sufficient animal studies to help reduce the risk of dangerous complications, including death.

Once there is a safe and effective vaccine, a primary ethical concern is justice. That vaccine needs to be made available to the populations most at risk rather than simply being distributed based on who can pay.

With concern about Ebola has come a new focus on the public health uses of quarantine for people who have been exposed to the disease and may have contracted it. Is quarantine a useful tool and what are its drawbacks?

Mutcherson: Being able to trace the contacts of Ebola patients and make sure that people who are exposed in a way that might lead to infection get access to high quality medical care is absolutely imperative. The government’s ability to quarantine is a longstanding public health power and has been used through the centuries to quell pandemics of highly infectious diseases like influenza and tuberculosis, which are different from Ebola in terms of the ease with which they are transmitted.

The quarantine power is not one that most Americans are accustomed to seeing utilized on a regular basis and that is because it is a power that should be used sparingly. Forcing someone into quarantine is a significant deprivation of liberty and we want government officials to be careful about how they use this power so as to avoid abuse, including unfair targeting of certain populations. If people become concerned that they’re going to be locked away, this creates distrust of the healthcare system which is something that we can’t afford in the face of a significant public health event.

As the Ebola crisis continues, have you begun to observe any bioethics patterns that may have occurred with HIV?

Mutcherson: One of the most striking parallels between the hysteria surrounding Ebola and the early history of the HIV pandemic is the immediate targeting of people rather than the disease. It’s very easy in the midst of fear to forget that there are actual people involved many of whom are fighting for their lives. Compassion is also an important tool of public health.

Sadly, another parallel is the extent to which people turn a blind eye to a disease unless and until it appears to be a threat to them. Ebola is not a new disease and there have been outbreaks in countries in sub-Saharan Africa since 1976. Even the current outbreak in West Africa began in December 2013, but didn’t begin to garner widespread media attention in the United States until fears were stoked that the disease could travel to our shores. The days when people could ignore the world’s public health calamities because they were irrelevant to us are long gone.

What kind of legal issues typically arise from epidemics? How might Ebola generate new precedent?

Mutcherson: Epidemics raise a host of issues about relationships between individuals and the government. The big issues center around government power to curtail civil liberties including through quarantine, forced vaccinations, deprivations of privacy, and the like. Epidemics can also raise questions about free speech on one hand and about government secrecy on the other. The balance between state and federal power can also become an issue as we’re seeing already as governors, like our own Governor Christie, make public health policy that seems at odds with positions taken by the federal government.

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