The Model Emergency Health Powers Act Creates Its Own Emergency: This Is Not a Healthy Piece of Legislation

The Model Emergency Health Powers Act Creates Its Own Emergency

THIS IS NOT A HEALTHY PIECE OF LEGISLATION

Meryl Nass, MD

April 8, 2002 - One year ago, the Centers for Disease Control began negotiations for a model piece of legislation that would help states deal with a bioterrorism epidemic. Why focus on the states rather than the federal government? Because control of the practice of medicine is regulated at the state, not federal level. Some emergency responses are also handled at the state level, such as disasters in which the national guard (really a state militia) is called to assist. Other preparations for emergencies are made at the federal level.

The CDC negotiations concluded rapidly after September 11, and Georgetown and Johns Hopkins University Professor of Law and Public Health Lawrence O. Gostin received a CDC contract to write and do public relations to help pass such a bill in every state. He says, "America is experiencing a tragedy of unprecedented proportions, but there is one silver lining: the political community is coming together with a clear determination to protect the civilian population from harm."

The silver lining for him was a $300,000 per year contract for up to three years for his services.

By October 30 (was it a trick or a treat?) the first version of the Model Emergency Health Powers Act was unveiled, and presented to every governor and state legislature for review. Outside the halls of government, the bill bombed. A wide variety of pundits blasted its unprecedented incursions of our civil liberties. George Washington University Law Professor Jonathan Turley points out that "what the Act does not mention is that governors in most states already have all of the authority contained in the Act."

The bill allows a governor to declare an emergency on almost any infectious basis (emergencies are loosely defined in the bill) — and once declared, would then give the governor "unchecked and unfettered power," according to Turley. He also notes, "What is most astonishing is the triggering of this absolute authority is left entirely to the discretion of each governor."

According to Jennifer King, Director of the Health and Human Services Task Force of the American Legislative Council, a national organization of state legislators, "Most unusual is the fact that there are no provisions for judicial or legislative review of the emergency declaration. In fact, the legislature is pointedly prohibited from reviewing the declaration for 60 days."

She also points out the bill’s "blatant disregard for personal privacy and individual liberties... All information gathered by medical professionals and pharmacists [must] be reported to public health authorities," who may share it with "persons who have a legitimate need," including law enforcement authorities. But ‘legitimate need’ is not defined.

That is only the beginning. The bill further gives the authorities the right to seize or destroy property, food, medicines, firearms, etc. Citizens can be subjected to medical examinations and treatments against their will. The bill’s first draft made refusal of medical care a misdemeanor! In addition to compulsory acceptance of medications and vaccinations, citizens can be forcibly quarantined. According to Jennifer King, "public health authorities may determine who gets what drugs when, ‘without any additional legislative authorization.’"

Dr. Jane Orient, Executive Director of the Association of American Physicians and Surgeons, has pointed out what should be an obvious problem: "Public health officials are not omniscient." For example, "They were silent as the WHO destroyed tens of millions of smallpox vaccine doses in the 1990s for want of $25,000 per year to buy electricity for the storage freezers." More recently, CDC made a number of poor decisions when it came to handling the anthrax crisis.

Dr. Orient sums up what the Act provides, compared to what would really be needed in an actual emergency: "In improving emergency preparedness, States should emphasize abilities to mitigate the situation, not powers to seize, commandeer, coerce, punish and disrupt. Better laboratories with surge capacity; stockpiles of vaccine, drugs, medical equipment and supplies; protective gear; decontamination equipment; and improved training of both officials and citizens would all be very helpful, but are not part of the Emergency Health Powers Act."

The Model Emergency Health Powers Act will be coming to your state for a vote sometime this year, if it has not already done so. Consider letting your representatives know what you think about this bill.

RECOMMENDED READING

Professor Gostin’s Center for Law and the Public Health

Prescription for Disaster

Power Grab: The states in a state of emergency. Jennifer King