Grassroots Succeed in Rewriting Minnesota MEHPA

Published June 1, 2002

Minnesota citizens may soon experience medical martial law. During a declared public health emergency, the proposed Minnesota Emergency Health Powers Act will empower the governor to issue orders without approval from the legislature, and health officials to ration care.

Minnesota’s Republican-controlled House and Democrat-dominated Senate passed very different forms of the bill with little debate. A conference committee has met and a final version of the bill is being printed for approval.

The act is Minnesota’s version of legislation crafted by the federal Centers for Disease Control and Prevention. The Model State Emergency Health Powers Act (MEHPA), published in October 2001, was distributed to all 50 state legislatures. MEHPA authorizes health officials to commandeer medical supplies, ration health care services, initiate ongoing health surveillance, pressure citizens to comply with medical treatments, and direct the practice of health care professionals.

In the wake of September 11, the legislation is touted as protection against bioterrorism. But health officials, who began writing the model act well before the terrorist attack, intend to empower themselves all year long.

Minnesota Efforts

The battle over empowerment of health officials has been waged between the Minnesota Department of Health and three citizen organizations: Citizens’ Council on Health Care (CCHC), the Minnesota Family Council, and the Minnesota Natural Health Legal Reform Project. Professional medical associations have been virtually silent, concerned only that they be held harmless in a court of law if harm or death should occur as a result of following state orders.

The Department of Health is serious about winning. The state’s Commissioner of Health has personally testified at every hearing on the bills. Nevertheless, the citizen organizations had a dramatic impact on the bills as they wended their way through committees.

The House bill passed from committee to committee without recommendation. The original 44-page model bill was cut down to 11 pages in the House and 9 in the Senate. Requirements that health professionals provide and citizens submit to medical examinations, vaccination, and treatment were deleted. Preferential access to medical care for state officials and health care practitioners was eliminated.

The governor’s authority to delegate powers to an unnamed, unelected person was stripped from the bills. When the bills reached floor debate, the text was amended to affirm a citizen’s right to refuse vaccination, examination, treatment, and testing. However, neither bill requires that citizens be informed of the right, and health officials can place non-compliant individuals into quarantine.

Citizen Input Prohibited

Despite—or perhaps because of—their previous successes, citizens have not been allowed to participate in the conference committee effort to merge the House and Senate versions of the bill. The chair of the committee, bill author Richard Mulder (R-Ivanhoe), announced at the first meeting that no public testimony would be taken. Concerned, Rep. Lynda Boudreau (R-Faribault), who was not a conferee, came to the second hearing and made a public pronouncement that public testimony should be taken.

Only one citizen had an opportunity to testify before the hearing was adjourned. At the conference committee’s third and final hearing, Mulder again announced no public testimony would be taken. Boudreau was not present.

The conference committee also did follow protocol. Rather than limiting debate to the bills that passed in the House and Senate, health officials were allowed to draft two new bills as compromise versions. The resultant conference committee bill is an amalgamation of the four versions.

Constitutional Issues Abound

If the conference committee bill becomes law, the governor and health officials will have new powers, particularly in peacetime. The proposed bill gives the governor authority to issue orders and make rules with the full effect and force of law during peacetime emergencies, related or unrelated to public health. Current Minnesota law provides the governor with that authority only during a national security or energy emergency.

The bill does not limit the police powers of health officials to bioterrorism incidents. A “public health emergency” can be declared on the mere belief that an illness or health condition in Minnesota is caused by a whole list of items, only one of which is bioterrorism. No actual incident is required. The appearance of a new or previously controlled communicable diseases is included on the list, meaning a new strain of flu could invoke new government powers.

Once a public health emergency is declared, the legislation allows state health officials to commandeer health care facilities and medical supplies. This is a slippery slope moving Minnesota toward state-mandated health care rationing.

Due Process Eliminated

The Minnesota Emergency Health Powers Act authorizes the state Department of Health to detain individuals in quarantine or isolation for 48 hours without a court order—365 days a year. Once quarantined, freedom could be restricted at least five days: two days before the court order is received and three days before a court hearing must be held with the detainee present.

The quarantine provision provides health officials with ongoing health powers. As the bill is written, quarantine can be used as a tool of coercion: Government officials could threaten quarantine to pressure families into vaccination, examination, treatment, or testing. The legislation does not require that citizens be informed of their right to refuse medical procedures.

A Few Protections

Three protective measures are part of the bill:

  • A sunset date assures repeal—or at least reconsideration—of the legislation in August 2004.
  • Conferees adopted an amendment, written by Citizens’ Council on Health Care, prohibiting state officials from commandeering medical supplies that health care providers consider essential for their continued practice and operation. In addition, medical supplies and medications being used by individuals cannot be confiscated.
  • A study of health care rationing, professional immunity, and constitutional issues is required by the bill. The legislature must receive a report by January 15, 2003. However, state health powers will go into effect upon the bill’s enactment—long before the study must be completed.

A great grab for power by health officials is underway across the nation. After September 11 and before upcoming elections, Minnesota legislators remain afraid to vote against legislation labeled anti-terrorist. But if the Health Powers Act passes, Minnesota citizens could face more terror at the hands of their own government than from any foreign terrorist.

Twila Brase is president of Citizens’ Council on Health Care (CCHC) and a public health nurse. Brase is also a contributing editor to Health Care News and writes a regular column on health care issues for The Heartland Institute’s bimonthly magazine, Intellectual Ammunition.