A year ago this month, anthrax attacks sent shock waves from coast-to-coast and border-to-border as state health care officials tried to cope with potential bioterrorism and other public health emergencies following the September 11 terrorist attacks.
The Model Emergency Health Powers Act (MEHPA) was developed for the federal Centers for Disease Control and Prevention (CDC) and provided to state legislatures for adoption. In states where it has been adopted, MEHPA gives local authorities the power and the right to enforce quarantines, vaccinate people, ration medical supplies, confiscate food and fuel, and seize and destroy private property without compensation—all in the name of a public-health emergency. (See “Bioterror Act Creates Its Own Terror,” Health Care News, May 2002.)
To date, only seven states—Arizona, Florida, Georgia, Maine, Maryland, Minnesota, and New Hampshire—and the District of Columbia have passed portions of MEHPA. No state has passed all, or even nearly all, of the model MEHPA legislation.
A dozen states—California, Connecticut, Idaho, Illinois, Kansas, Kentucky, Mississippi, Nebraska, Oklahoma, Washington, Wisconsin, and Wyoming—have affirmatively rejected or shelved MEPHA, while four others—Louisiana, South Dakota, Utah, and Vermont—effectively rejected the measure by passing an alternative bill.
Emergency health power laws are needed, federal officials say, because they give authorities the guidance and legal ability to make quick decisions in a public health emergency involving contagious or deadly pathogens. Most state health emergency laws haven’t been updated since polio tore through the population a half-century ago.
“We have not used emergency powers in probably 50 years,” says Gene Matthews, a lawyer for the U.S. Department of Health and Human Services. “This is something we need to attend to.”
A Top-Down, Draconian Move
Veronique de Rugy, policy analyst at the Cato Institute, warns, however, “[MEPHA] is a top-down plan [and] a draconian move orchestrated by the lobbyists that represent the public health establishment. Among other bad things, it grants governors the authority to declare a state of emergency to deal with the threat of bio-terrorism in a harsh way.
“Because terms such as epidemic or infectious diseases are poorly defined,” de Rugy continues, “the plan would give a bureaucrat the ability to declare a state of emergency when it pleases him (flu, gastroenteritis, AIDS …), destroy property, and incarcerate people.”
“The measure,” says de Rugy, “also calls for information-exchange among doctors, pharmacists, and health organizations to place the population under surveillance between outbreaks. This would violate the doctor-patient privilege and one’s right to privacy. Unfortunately, this scheme is not the first attempt by health authorities to deprive individuals of their privacy. It seems that parts of the plan have been sitting on the administration’s shelves waiting for the right opportunity. The anthrax scare provided it.”
A broad coalition of opponents, including civil libertarians, assorted political parties, and conservative physicians, maintains the proposed law would violate individual rights and give government officials too much power. The measure gives governors and state health officials nearly unchecked authority to coerce people into undergoing medical treatment, accepting quarantine or confinement, and unnecessarily disclosing their personal medical records.
The law “puts the lives of an entire state in the hands of one person who may or may not rise to the occasion,” says Jonathan Turley, a law professor at George Washington University. “A state may be cursed with some dimwit.”
The act “goes far beyond bioterrorism,” says Andrew Schlafly of the Association of American Physicians and Surgeons (AAPS). “Un-elected state officials can force treatment or vaccination of citizens against the advice of their doctors.”
In California, efforts to pass the law were shot down last April. Dismayed his measure was rejected, Republican Assemblyman Keith Richman, the bill’s sponsor and the legislature’s only physician, says lawmakers are “already suffering from disaster amnesia. They have their heads stuck in the sand.”
James Hodge of the Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities, which drafted the model law circulated among the states, attempted to defend the measure. “It would be used only in extreme cases,” he told USA Today, which reported Hodge is “encouraged that so many states have adopted all or parts of the law.”
The American Legislative Exchange Council (ALEC), a membership organization enrolling some 2,400 state legislators dedicated to free markets and individual freedom, has been tracking MEPHA legislation in state legislatures across the country. 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.”