Professor of Law, Center for Health and Pharmaceutical Law & Policy, Seton Hall Law School. B.S.F.S., Georgetown University; A.M., J.D., Harvard University. For valuable feedback on earlier versions of this Article, I thank Judith Ahronheim, Kathleen Boozang, Martin Coleman, Timothy Glynn, Rachel Godsil, Tristin Green, Thomas Healy, Solangel Maldonado, Tracy Miller, and Andreas Reis. I also thank Elizabeth Merchant and Joseph Middlebrooks Shapiro for very helpful research assistance. This Article builds on arguments first presented in a short commentary I coauthored with Andreas Reis. See Carl H. Coleman & Andreas Reis, Potential Penalties for Health Care Professionals Who Refuse to Work During a Pandemic, 299 JAMA 1471 (2008).
While it is impossible to predict when the next influenza pandemic will begin, many experts believe that the chances of one starting now are greater than at any time since 1968, when the last of the previous century's three pandemics occurred.1 An effective response to a pandemic will depend on the willingness of physicians, nurses, and other health care professionals to care for people who have been exposed to the virus. Yet, individuals who do this are likely to face a significantly heightened risk of becoming infected.
Lawmakers increasingly are deciding that they should be. Following the recommendations of the Model State Emergency Health Powers Act ("MSEHPA"),3 several states have enacted laws that give public-health officials the authority to order health care professionals to work during a pandemic or other public-health emergency.4 Individuals who refuse to comply with these orders can have their professional licenses rescinded.
This Article argues that laws requiring all health care professionals to work during pandemics regardless of their pre-existing treatment obligations impose burdens that exceed the ethical commitments individuals make when they accept a professional license. Health care professionals are not, in other words, simply being asked to fulfill their part of a bargain they freely accepted. Instead, these laws compel health care professionals to engage in what is normally considered supererogatory behavior-i.e., acts that are commendable if done voluntarily, but that go beyond what is expected. Lawmakers have not met their burden of Page 4 demonstrating why singling out health care professionals in this manner is ethically justifiable.
In making this argument, this Article departs from commonly asserted claims about health care professionals' ethical obligations. Many medical associations7 and academic commentators8 maintain that health care professionals have an inherent ethical obligation to treat patients during disasters, regardless of the health care professionals' job responsibilities or potential personal dangers. Common arguments in support of this position are that health care professionals "assume the risk" of infection,9 that a "social contract" requires health care professionals to work despite potential health risks,10 and that individuals who have urgently needed skills have an obligation to use them.11
However, the claim that all health care professionals have an ethical obligation to work during a pandemic, regardless of their actual job responsibilities, does not stand up to scrutiny. While some health care professionals assume a risk of infection by virtue of their employment or contractual agreements, simply being a health care professional is not itself evidence of an assumption of risk.12 Nor is it persuasive to assert that a social contract requires all health care professionals to work during infectious-disease outbreaks. Health care professionals do incur obligations to society in exchange for benefits like subsidized medical education, but there is no reason to assume that the only way they can satisfy these obligations is by exposing themselves to life-threatening risks.13 Finally, the fact that health care professionals have special skills that will be valuable during a pandemic does not justify requiring all professionals to work regardless of their preexisting treatment responsibilities. In general, having special skills does not create an obligation to use them, particularly when doing so would be dangerous.14 Even if one believes that the obligation to assume risks for the benefit of others is heightened in disaster situations, that belief does not justify imposing a heightened duty solely on individuals who happen to work in health care without imposing similar obligations on others whose contributions could be equally important.15
In criticizing broad requirements for health care professionals to work during pandemics regardless of their pre-existing treatment responsibilities, Page 5 this Article is making an ethical argument, not a constitutional one. Specifically, the claim is that such requirements subject health care professionals to burdens that cannot be justified by the commitments individuals make when they accept a professional license. This Article recognizes that, although particular applications of mandatory-work statutes could raise constitutional issues, wholesale constitutional challenges to these statutes are unlikely to be successful.16 Nonetheless, states have the constitutional authority to do many things that do not necessarily represent wise public policy from an ethical perspective. The goal of this Article is to make clear that even if lawmakers have the power to enact statutes that give public-health officials the discretion to compel health care professionals to work during a pandemic, they should refrain from using their power in this way.
Part I of this Article provides background on the risk of a pandemic, the potential impact of a pandemic on the health care system, and health care professionals' historical response to infectious-disease outbreaks. Part II examines general legal obligations applicable to health care professionals during pandemics, including those based on employment relationships, contractual requirements, federal statutes, and state licensing standards. This Part concludes that health care professionals who fail to fulfill preexisting treatment obligations during a pandemic could be subject to significant penalties even without a mandatory-work statute.
Part III, the heart of the Article, turns to statutes that impose special penalties on health care professionals who refuse to work during a pandemic independent of any pre-existing treatment responsibilities. It first considers whether these statutes can be justified as mechanisms for enforcing health care professionals' inherent ethical obligations. In doing so, Part III evaluates the three primary arguments that have been advanced for recognizing such an obligation-assumption of risk, social contract, and special skills. It concludes that none of these arguments supports a broad duty to work during a pandemic based solely on one's status as a licensed health care professional. Part III then examines whether laws requiring health care professionals to work during a pandemic are vulnerable to constitutional challenges under the Thirteenth Amendment or the Due Process Clause. This Part concludes that states probably have the constitutional authority to enact the statutes as a general matter, but that certain applications of the statutes would be constitutionally problematic.
Finally, Part IV examines alternatives that policymakers could adopt to address the potential shortage of health care professionals during a pandemic. These include offering positive incentives-both nonfinancial and, in some circumstances, financial-to volunteers; instituting mechanisms to reduce and respond to the risks of volunteering; enacting Page 6 liability protections; and encouraging a professional norm in favor of volunteerism. While these approaches would require a greater investment of resources than would mandatory-work statutes, they would avoid the ethical problems associated with a punitive approach.
A pandemic is a global outbreak of disease at levels that substantially exceed those that would normally be expected.17 Influenza pandemics have occurred regularly throughout human history, typically several times each century.18 The most serious pandemic on record was the Spanish flu of 1918, which killed at least fifty million people worldwide,19 including approximately 670,000 people in the United...