Due Process for People, Precaution for Pathogens

By Naomi Bar-Yam

Discussions of public health precautions for emerging diseases like Andes hantavirus, often include, “We shouldn’t overreact before we have definitive proof.” Sometimes this idea is framed explicitly or implicitly through one of the foundational principles of criminal law: innocent until proven guilty. That principle is essential in human justice.

However, viruses are not people. Pathogens are not citizens. They are biological agents that can spread, mutate, disable, and kill. Public health cannot wait for a “conviction” before acting.

Public health should be guided by the precautionary principle, not by legal standards that were designed to protect people, not pathogens. The pathogen will not be compromised or abused by an investigation.

Innocent Until Proven Guilty

The legal principle of innocent until proven guilty developed to protect people from abuses of state power. It serves critical purposes: protecting liberty, limiting government coercion, preventing wrongful imprisonment or execution, and requiring evidence before punishment. These are moral and legal protections for human beings with rights.

But infectious agents are not moral actors. They have no rights, intentions, or due process claims. Giving viruses the benefit of the doubt is dangerous.

The Precautionary Principle

The precautionary principle emerged from environmental and public health policy. It says: When there is a credible risk of serious harm, lack of complete scientific certainty is not a reason to delay protective action.

This principle developed because history repeatedly showed the dangers of waiting too long: asbestos, lead, tobacco, contaminated water, air pollution, climate change, and airborne infectious disease transmission. Again and again, societies demanded overwhelming proof before acting. Repeatedly, these delays cost lives.

Public health works best when it acts early, proportionally, and adaptively.

The danger of assuming pathogens and toxins are innocent until proven guilty

We assume innocence until proven guilty for people because assumption of guilt for an innocent person has severe consequences for that innocent person, and for society. Conversely, the assumption of “guilt” (high risk) for an environmental or infectious disease threat serves to protect life and create a safer, healthier society. The crucial question becomes, what are the consequences of assuming innocence (low risk) in environmental challenges and infectious diseases without sufficient evidence of “innocence”?

The question in public health is not: Has the virus been proven guilty beyond a reasonable doubt?

The question is: What are the plausible risks, and what actions can reduce harm while we learn more?

In a healthy and functional society, pathogens and environmental toxins must prove their innocence, people must prove criminals’ guilt.

Andes Hantavirus and the Danger of Waiting

How does this apply to Andes Hantavirus?

Andes hantavirus is not a mild illness. Reported mortality rates are in the range of 20–40%, far higher than many respiratory viruses people routinely dismiss or normalize.

Evidence from prior outbreaks indicates that Andes hantavirus can spread from person to person. Increasingly, evidence also suggests that transmission is likely airborne, and not limited to prolonged close contact or direct exposure to bodily fluids, as was initially reported.

There is still much we do not know:

exactly how efficiently it spreads,
under what conditions transmission is most likely,
how often airborne spread occurs,
what role ventilation plays,
and how transmission risk varies across settings.

This uncertainty is exactly when the precautionary principle matters most. Waiting for absolute certainty before taking protective measures is gambling with our health and lives.

Public Health Is Not a Criminal Trial

One reason societies struggle with precaution is that people are familiar with legal and political frameworks and apply them to biological threats.

Viruses do not wait as humans debate evidence thresholds. Epidemics often grow exponentially during periods of hesitation. By the time certainty arrives, opportunities for prevention are lost.

This is one of the painful lessons of COVID-19. Early messaging insisting on definitive proof of airborne transmission delayed adoption of ventilation improvements, respirators, and other protective measures.

Public health decisions are necessarily made under conditions of incomplete information. The goal is not perfection. The goal is harm reduction.

Importantly, precaution does not mean panic. Good precautionary policy is:

proportional,
transparent,
grounded in evolving science,
and therefore, revisable.

As evidence improves, recommendations should evolve as well.

But when evidence points toward the possibility of airborne spread of a highly lethal virus, acting cautiously is responsible public health practice.

What Precaution Looks Like

Applying the precautionary principle to Andes hantavirus could include:

Rapid investigation and surveillance: investigation of suspected transmission chains; surveillance and case tracking.
Transparent communication: clear, timely public updates about risks and uncertainties.
Safer indoor environments: improved indoor air quality, ventilation, and filtration.
Personal protective measures: use of high-filtration respirators in higher-risk settings; precautions during cleanup of rodent-infested spaces.
Research investment: dedicated funding for airborne transmission and control strategies.

The alternative — minimizing risks until every mechanism is conclusively mapped — has repeatedly failed us.