April Xiaoyi Xu*
I. Introduction: Proposing a Modern “Test-and-Isolate” Future Pandemic Prevention Model and Identifying Relevant Legal Issues
As of July 2, 2021, there have been 196,553,009 confirmed cases of the Coronavirus Disease (COVID-19), including 4,200,412 deaths, globally.1 Unfortunately, infectious diseases have been an “unavoidable fact of life” throughout history.2 While the global community looks forward to a gradual return to normalcy from COVID-19 with an increasing number of individuals getting vaccinated on a daily basis,3 the COVID-19 public health crisis has exposed significant inadequacies in many countries’ pandemic responses—the United States included.4 Governing authorities must actively consider more effective solutions to quickly detect and prevent the spread of future pandemics.
One proposed model that offers promising potential, but is not yet developed in greater detail, is a future pandemic detection and monitoring architecture. This Comment will refer to this architecture as the “test-and-isolate model.” In his May 2020 Scientific American article, biochemist Dr. David J. Ecker recommends strategically placing modern high-speed metagenomic sequencing technology in urban hospitals across the United States to flag previously-unknown pathogens before the infectious agents have the opportunity to spread widely and pose threats of a new pandemic.5 Under this model, during a time period without any apparent pandemics (peacetime), the 200 biggest metropolitan hospitals6 in the U.S. would automatically run diagnostic tests up-front for novel causative agents for patients who visit the emergency room with severe respiratory symptoms that are possibly infectious.7 If such a system detects a sufficiently serious pathogen, public health agencies would send out diagnostic tests to all residents in the affected geographical area(s) within weeks and isolate those who test positive.8 This system could be integrated with contact tracing and more standard outbreak response.
This model can be significantly more effective than the system that the U.S. currently has in place, which has not consistently tested and isolated asymptomatic carriers of novel pathogens sufficiently early in the disease spread timeline. Given the exponential nature of pandemics,9 pandemic response will be more feasible and cost-effective the earlier it begins—every day counts in the early stages. Ecker analogizes this system to common forest fire prevention strategies that “survey aggressively for smaller brush fires and stomp them out immediately.”10 The proposed “test-and-isolate” future pandemic prevention model responds earlier than existing status quo systems in two major ways. Firstly, the proactive diagnostic testing in hospitals detects the new pathogen earlier. Secondly, identifying and isolating infected persons within weeks reduces disease spread among other members of society more quickly. Because isolating only those who test positive is less disruptive than more general social distancing measures, the test-and-isolate model would have made it economically and politically less costly to isolate early during the Covid-19 pandemic.11 According to Monte Carlo simulations—a form of computational algorithm that applies “repeated random sampling to obtain the likelihood of a range of results of occurring,”12 there is a “95 percent probability of identifying an emerging infectious disease outbreak if only seven symptomatic patients seek health care in this system.”13
The legal architecture surrounding medical isolation plays an essential role in determining whether test-and-isolate methodology could be successfully implemented in the U.S. in practice. Given that Ecker’s proposed model is relatively new and little explored, especially in the field of law,14 this Comment focuses on the legal issues surrounding the “isolate” portion of the aforementioned “test-and-isolate” model as part of the broader pandemic detection and prevention architecture. Despite the potential of Ecker’s model in preventing the next public health tragedy, there are a number of legal challenges that may obstruct the practical implementation of such a model, as the law strives to balance pressing public health needs with individual civil liberty rights. For a model that prioritizes early detection and early response over exactitude on factors such as the novel disease’s incubation period and severity level, the status quo law in the U.S. is disappointingly insistent on demanding more certainty and rigorous scientific evidence of future public health risks before authorities can legally mandate medical isolations, although there are ambiguities and uncertainties in relevant federal and state law alike.
Having provided an overview of the “test-and-isolate” model, this Comment next zooms in on current pandemic-related medical isolation laws in the U.S., offering an overview of the relevant federal and state laws, a brief survey of recent scholarship in relation to COVID-19, and a summary of an influential recent precedent, Hickox v. Christie.15 This Comment then focuses on applying current laws to the “isolate” part of the proposed pandemic prevention model to determine gaps and challenges for the proposed model given the U.S. legal landscape. Finally, this Comment will conclude with forward-looking recommendations and reform proposals.