Law in the Time of Zika

Prior to early 2016, most lay individuals had not heard of the Zika virus. Then, reports emerged from Brazil of an increased number of babies born with microcephaly to mothers infected with Zika. Although the symptoms of Zika in the women were often mild, this correlation with microcephaly led to travel advisories and alarm bells for pregnant women in Brazil and other countries where the Zika virus was prevalent. There is a growing panic all over the world about the potential spread of the virus and what harm it may cause. The media has contributed to this frenzy by featuring pictures of infants born with smaller than typical heads with sensational headlines about “brain damaged” babies. In fact, twenty percent of infants with microcephaly develop similarly to those without the condition and do not suffer from decreased IQ or other brain malfunctions. Although the rise of microcephaly and its connection to Zika is a cause for concern and investigation, the condition itself is not a death sentence, as the headlines would suggest. Evidence of such birth defects in El Salvador prompted its Deputy Health to request that women stop getting pregnant until 2018. In Colombia, which has the second-highest number of infected people after Brazil, government officials recently said women should wait six to eight months before conceiving. In anticipation, Jamaica which as of yet has no recorded cases of Zika, advised women to delay pregnancy for six to twelve months. Due to the global panic surrounding the Zika virus in many predominantly Catholic countries, Pope Francis has suggested that it may be acceptable for those Catholics fearing Zika virus to use contraception. The implicit message of these public health advisories are that 1) women in these countries actually have the power to do that and 2) that babies with microcephaly should not be born. In reality, women in many of these countries do not have such autonomy, due to social structures, religious beliefs, and the legal system. However, access to contraception is very limited in most of these Zika stricken areas. Additionally, if a woman finds out she is infected with Zika with pregnancy, she does not have abortion as an option in these countries. El Salvador, in fact, has one of the most stringent anti-abortion laws in the world and a high level of sexual violence against women. Yet, public health officials seem to suggest that women have the power to control their reproduction. Additionally, in many cases, many women in these countries also lack secure housing, sanitation, and health care services.This Article examines the national and international public health law responses to the Zika epidemic through the lens of disability justice and reproductive justice. Part I of this article gives an overview of the Zika virus and the initial response to the microcephaly increase and Zika epidemic. This part outlines public health responses by host countries where Zika is prevalent, by countries where Zika is not prevalent but that are concerned with their citizens traveling to Zika affected zones, and the response by international public health organizations, such as the World Health Organization. Part II critiques the various responses based on the viewpoint of reproductive justice. Reproductive justice looks beyond the realm of reproductive rights and urges. This Part analyzes how the public health messaging and media response underscores the need for government action in ensuring that women receive economic sufficiency, social support, and adequate health care and access. Encouraging women to delay reproduction is not realistic or workable in countries where women themselves may be opposed to contraception due to their religious beliefs. Additionally, the lack of abortion as an option severely restricts the options available to women in many of these countries. Poor women in these countries are likely to face even less choices than those who can afford to travel to areas with more open abortion laws. Part III of this paper examines how the public health response to the Zika epidemic is problematic from a disability justice perspective. The public health advice about preventing or delaying pregnancy due to the threat of Zika complications sends a message that these children are not worthy of being born. With this messaging and given the attitudes towards the disabled, there is a real concern about the how families with children born with disabilities will be supported. However, with the backdrop of strong religious opposition to abortion and birth control, it is likely that the numbers of children born with Zika related complications will continue to increase. Governments need to ensure aid for children born with disabilities and their families in the form of economic relief, social and schooling support, and health care services. Finally, Part IV of this Article suggests a public health response from a health justice perspective, taking into account reproductive, disability, and environmental justice.