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Zika is a mosquito-borne and sexually transmitted disease that is a dangerous threat to pregnant women, causing catastrophic birth defects in a large percentage of fetuses when their mothers become infected while pregnant. It raises numerous issues related to abortion, birth control, poverty, and women’s control over their procreative choices. While the United States received ample warning from January 2016 onward that it was at risk of local transmission of this virus and public health officials at all levels generally behaved properly, the state and federal legislative responses in the summer of 2016 were entirely inadequate. For example, no state at a high level of risk undertook to provide long lasting and reliable birth control to all women who wanted it. Furthermore, Congress took a seven-week recess at the height of mosquito season without providing any funding for a Zika response. In light of these failures, it appears that the federalist system that allocates both public health police powers and duties to act contains a flaw. The system creates a vacuum within which there are no enforcement mechanisms that can compel legislators to act appropriately. This Article analyzes the response from January through August 2016 from a legal, health policy, and ethical framework, concluding that a combined effort by courts and health policy experts is required so that the United States is better able to respond to early warnings about emerging infectious diseases in the future.


Originally printed in Connecticut Law Review and reprinted with their permission.