Bioterror Act Creates Its Own Terror

Published May 1, 2002

In the wake of September 11, the Centers for Disease Control (CDC) recommended states adopt a model law creating sweeping new government powers to address public health emergencies. The Model Emergency Health Powers Act, or MEHPA, has created a storm of protest across the country.

The legislation would grant governors unchecked authority to declare a state of emergency. A governor’s decision to declare an emergency could not be reviewed for 60 days after the declaration. Moreover, government authorities would be authorized by the proposal to obtain and disseminate personal information about a state’s citizens, ration prescription drugs, and confiscate and destroy private property.

State officials could order citizens to be vaccinated, quarantine those suspected of having a contagious disease, take over hospitals and physicians’ offices, and seize and destroy personal property deemed a threat to public health.

The CDC’s proposed legislation was drafted by the Center for Law and Public Health at Georgetown and Johns Hopkins Universities in coordination with the National Conference of State Legislatures, National Governors Association, National Association of Attorneys General, Association of State and Territorial Health Officials, and National Association of City and County Health Offices.

Law Planned Before September 11

In the spring of 1990, the CDC accepted a number of applications from organizations wishing to collaborate with the agency on a variety of legal and public health projects. The applications were reviewed and scored. A proposal from Lawrence Gostin, director of the Center for Law and Public Health, received the top score, and thus CDC funding. The CDC awarded Gostin $300,000 per year for up to three years to develop his model legislation, among other projects.

Gostin began work on an effort to develop consistent public health laws across states. In the beginning, the effort was intended to address day-to-day health concerns, such as the tracking and reporting of conventional diseases.

When October 2001 brought the threat of anthrax spreading through the mail, CDC officials asked Gostin to spend two weeks writing a model state law to define the powers government officials would need in a health emergency. State governors were “clamoring” for guidance, they said. By month’s end, they had a draft law in hand.

Civil Liberties, Privacy Threatened

Under the MEHPA, people who refuse medical examinations or treatment could be quarantined against their will. Law enforcement agencies and other government officials would have freer access to private medical information. Civil libertarians and privacy advocates are up in arms.

Gostin, who says he is sensitive to concerns about the law’s impact on civil liberties, maintains that a balance must be struck: “You do have to face hard trade-offs between civil liberties and property rights of individuals against the collective rights of society,” he says. “We do need to give up a little bit.”

The proposal “puts the lives of an entire state in the hands of one person [the governor] who may or may not rise to the occasion,” says Jonathan Turley, a law professor at George Washington University. Even a well-intended but poorly informed governor could make decisions with devastating consequences.

Also critical of the effort is the American Legislative Exchange Council (ALEC), a membership organization representing about 2,400 state legislators dedicated to free markets and individual freedom. Sandy Liddy Bourne, who oversees the issue for ALEC, stated in a news release, “We’re talking about limiting firearms and property, taking clothing and livestock. This is not about protecting the public health.”

Tommy Thompson, secretary of the U.S. Department of Health and Human Services, despite being a former ALEC member, endorsed the first draft of the MEHPA in a news release.

Jennifer King, a legislative expert with ALEC, is angered by the fact Gostin’s model legislation has the financial backing of the CDC. She maintains, “It’s crucial to know that the Centers for Disease Control actually funds that professor.” She said Gostin’s work at Georgetown and Johns Hopkins is “completely funded by the CDC from grant money that they got a couple years ago.”

Gostin said his proposal has “unanimous support among all people with any operational responsibility,” including the U.S. Department of Health and Human Services and state agencies, governors, legislators, attorneys general, and health officers. King, however, is not convinced Gostin has the support he claims. She also accused Gostin of being a “very strong public health, police-state-type advocate.”

“It’s odd that they (ALEC) would say that,” Gostin responded. “For many years, I was on the national board of directors and the national executive committee of the ACLU; I was the head of the British Civil Liberties Union; I chaired the ACLU Privacy Committee for many years.” He called her comment “misinformed.”

Janlori Goldman, of Georgetown’s Health Privacy Project, worries there are many provisions in the MEHPA that have not been carefully thought-through. For example, she notes, privacy safeguards are needed to ensure personal health information doesn’t fall into the wrong hands. Supporters of the act “assume civil liberty and privacy issues will be dealt with elsewhere or in practice,” she said, “but protections should be built into the law.”

No Due Process

Twila Brase, president of Citizens’ Council on Health Care (CCHC), a Minnesota-based public policy organization, is concerned the proposal would provide intrusive authority for purposes far beyond bioterrorism. Due process will suffer, she warns, noting:

  • The act permits state officials to identify and train personnel to serve as “emergency judges” to hear citizen appeals of forced quarantine and isolation.
  • If a public health emergency is declared, police officers would be placed under the authority of health department officials.
  • In the event of a declared public health emergency, citizens would be required by law to submit to medical examinations, vaccinations, and quarantine against their will.
  • Public health officials would be given authority to “collect specimens and perform tests on any person,” even if they are healthy and have no history of exposure to disease.
  • Health care professionals who refuse to conduct forced medical examinations or vaccinations could be charged under the law with a misdemeanor.
  • Citizens who refuse to comply could be detained and charged with a misdemeanor.

Back to the Drawing Board

The MEHPA already has undergone revisions, though not enough to address most critics’ concerns. The initial draft’s definition of a public health emergency included epidemic diseases, provoking concern among AIDS activists that AIDS patients might be subjected to isolation. The first draft also threatened misdemeanor criminal charges against persons who refuse medical treatment.

The newer draft of the model act, released in March, narrows the definition of a public health emergency so it doesn’t apply to known epidemics, such as AIDS. The draft also allows people to refuse medical treatment for religious or other reasons, though it warns they may be subject to quarantine if they do so.

The March draft of the plan incorporates other changes, but it hasn’t quelled all the criticism. Anyone with a stomach ache and a bottle of antacid could be subject to quarantine by the state during a declared public health emergency, critics of the plan charge. Gostin maintains that’s an unfair characterization of his proposal, which he says is simply an effort to help states respond quickly and effectively to bioterrorism, especially chemical or germ attacks.

Firearms, Prescriptions Scrutinized

The MEHPA has been called a confusing mix of bioterrorism law and public health law. Critics charge it is drafted in such a way as to cover many things that may have nothing to do with bioterrorism. For example, King said the MEHPA would be especially intrusive with regard to personal property, which the act defines not only as land and buildings, but also food, alcohol, and firearms.

“Firearms are an extreme public health hazard,” Gostin replied, “but they aren’t a biohazard and they don’t, therefore, come within our act. So, I think that’s a misunderstanding.”

In fact, however, the MEHPA document refers specifically to firearms. The text says state officials will be given the power “to control, restrict, and regulate … the use, sale, dispensing, distribution, or transportation of food, fuel, clothing, and other commodities, alcoholic beverages, firearms, explosives, and combustibles, as may be reasonable and necessary for emergency purpose.”

The MEHPA also would require pharmacists to report any sudden or unusual use of drugs, according to ALEC’s King.

“What we’ve said here internally (at ALEC) is, ‘What if there’s some sort of a church picnic?’ You always hear about the church picnic with the bad food and the run on Kaopectate.” Under that scenario, King said, the MEHPA might prompt a pharmacist to alert law enforcement officials to a suspected public health emergency.

State by State

Gostin predicts his proposal will be considered in “virtually every state.” He said the MEHPA is not intended to be one-size-fits-all, but rather meant to be picked over by the states and adapted by them as needed, to update laws already on the books.

State by state (see map), a battleground is emerging in state legislatures. In Illinois, for example, a measure modeled after Gostin’s MEHPA was referred to the Senate Rules Committee (SB1529) in November of last year, and to the House Rules Committee (HB3809) on April 5, 2002.

For more information …

see “Power Grab: The States in a State of Emergency,” an ALEC Issue Analysis written by Jennifer King and released in January 2002. The document is available on ALEC’s Web site at