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Wednesday, September 07, 2016

Watching a Tragedy Unfold—the Spread of the Zika Virus and some teachable material about Federalism

While it’s considered sensationalistic in public health circles to make an analogy to AIDS every time a new virus emerges, the FDA’s recommendation that we begin screening all blood donations for Zika raises that question on its own. So far, there is no effective treatment or vaccine.

 Congress has the power to authorize funding to develop both, but they also have the power to stand by and watch.  Starting with a vote last February, Congress has refused to authorize the $1.1 Billion that the CDC and the Department of Health & Human Services (and other Agencies) need to develop a vaccine, treatment, and prevent strategies. Congressional dysfunction is hardly a surprise.  Nor should it be a surprise that the latest pretext is that Planned Parenthood may be involved in what is so far the only effective way of preventing pre-natal infection, contraception.

Could it be that we will look back at Congress’ failure to fund a Federal response to the Zika virus as another tragically lost opportunity?   Is Zika really that bad?  Well, the WHO released new guidelines today that although couched in terms intended to reassure, are no better than a placebo.  It’s couched as helpful, but Zika isn’t like some kind of soil contamination that can be avoided by cordoning off a few blocks in a major city.  Not only are the mosquitos quite good at hitching rides, it is clear that the virus can be transmitted through bodily fluids and, very much so, from mothers to their unborn children.  And, as both the CDC and WHO well know, advice to avoid pregnancy is not realistic.   By some estimates, over 45% of pregnancies in the US are unplanned and there’s no reason to think the number is significantly lower anywhere else. 

As is almost always the case in a time of public health crisis, there are balance of power lessons to learn.

The President of the United States does not have direct power to protect the public’s health—that authority rests in the individual States under the Police Powers Doctrine. But he could act alone to combat Zika if he were willing to declare it a threat to national security.   The CDC has compiled a very helpful document outlining these powers, but as explained, in presidential transition memo the consequences to the rule of law in using them are enormous.  And in retrospect almost never justified.

So the coming of Zika to the United States presents a clear illustration of the limits of our powers of federalism. As so often happens in these cases, states are trying to fill the gaps.  But in the end, no individual state has the resources to mount the billion dollar response required to get ahead of this menacing threat.  For now, the CDC is diverting its own resources to the states, but that is at best a “stopgap.”

Posted by Jennifer Bard on September 7, 2016 at 04:27 PM in Current Affairs, Law and Politics | Permalink