http://www.cnsnews.com/Nation/archive/200112/NAT20011211a.html

Bio-terror Response Plan Would Invade Civil Liberties, Says Critic
By Michael L. Betsch
CNSNews.com Editorial Assistant
December 11, 2001

(CNSNews.com) - Anyone with a stomach ache and a bottle of antacid could be subject to quarantine by the government during a public health emergency under model legislation financed by the federal Centers for Disease Control, critics of the plan charge.

The American Legislative Exchange Council (ALEC), a bipartisan group of state legislators, believes the plan would intrude on Americans' civil liberties by granting public health officials and governors the power to quarantine and vaccinate American citizens as well as the authority to ration drugs and private property, including firearms.

The legislation is formally known as the Model State Emergency Health Powers Act (MEHPA). Although no states have yet amended such a bill, it is intended to serve as a blueprint for future legislation.

"The idea that we need it is very clear," said Lawrence Gostin, MEHPA's author.

Gostin - who works as both a law professor at Georgetown University in Washington, D.C. and a professor of public health at Johns Hopkins University in Baltimore - says it is impossible to respond to bioterrorism or another major assault on American health "without being able to plan, to conduct surveillance, to treat, to test, to vaccinate people, or if necessary, even to confiscate pharmaceuticals or vaccines."

Gostin describes his proposal as an effort to help states respond quickly and effectively to bioterrorism, especially chemical or germ attacks. He sees MEHPA as a way to address sudden, devastating outbreaks of disease, for example.

But civil libertarians see the model legislation as an excuse for governments to pounce on individuals' rights and privacy.

Gostin describes such critics as "a tiny minority mostly among fringe groups, either strong political right to the strong political left," leaving the vast majority of Americans in the middle.

CDC Gives Financial Support

Jennifer King, a legislative expert with ALEC, is angered by the fact that Gostin's model legislation has the financial backing of the federal Centers for Disease Control and Prevention.

"It's crucial to know that the Centers for Disease Control actually funds that professor," King said.

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."

"The CDC is a public agency... we're funded by Congress," said Tony Moulton, director of the CDC's Public Health Law Program.

Moulton explained that 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 through the standard process and scored," Moulton noted. He said Gostin's proposal received the top score and therefore received CDC funding.

The CDC awarded Gostin $300,000 per year for a period of up to three years to develop his model legislation, among other projects.

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 said she is not convinced Gostin has the support he claims. King 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."

King said she's just citing examples directly from the model legislation itself.

Under the MEHPA guidelines, King explained that pharmacists would be required to report unusual runs on drugs. "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, MEHPA might prompt a pharmacist to alert law enforcement officials to a suspected public health emergency.

"Law enforcement officers would have no real reason to have that information," said Joy Pritts, an attorney with Georgetown's Health Privacy Project. She and other privacy advocates consider such disclosures an unnecessary privacy intrusion.

But Gostin insists this is about safety. "The prime responsibility of government should include a very careful attention to the health, safety and security of the population," he said. Gostin added he does not believe government should "gratuitously or unnecessarily take away some people's rights and liberties."

Gostin said, "[I] have bent over backwards in writing the law to make sure that there was very careful attention to due process and checks and balances." For example, the model legislation includes steps to be followed in ordering quarantines of infectious people.

According to Gostin, "Anyone who says it's not necessary just needs to ask themselves the question -- would they really allow someone with a serious infectious disease to refuse vaccination treatment or isolation? Any common sense answer has to say, no, you wouldn't allow it."

Confiscation of Guns

Pritts believes the MEHPA document is a confusing mix of bio-terrorism law and public health law. "It is drafted in such a way that it encompasses a lot of things that have nothing to do with bio-terrorism whatsoever," she said.

King said MEHPA would be especially intrusive with regard to personal property. The term 'property' is not limited to just land and buildings on that land but it also includes food, alcohol and even firearms, she said.

"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."

However, the MEHPA document does mention the word "firearms."

The text says the states will have 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."

According to King, the model legislation would give "absolutely unprecedented" power to governors as well as to public health commissioners in the different states.

Those powers would include the "ability to quarantine people who have either contracted a disease, have been thought to contract a disease or might have been in the same area with someone," King said. And don't forget the provisions requiring mandated vaccines, she added.

"With all of the power that states have under their general rule-making authority," Pritts said, "we're not sure that they even need this if the governor declares a state of emergency."

Gostin replied, "Unfortunately, it's not true. Some states have far too few powers."

"Anybody who thinks we can fight a 21st century battle against bioterrorism with early 20th century legislation really just doesn't understand the sorry state of public health law in America," Gostin said.

"This is not anything to do with military tribunals or anything like that -- there's a lot of due process. So, for those who say that there's not enough civil liberties in it, I think the only thing I could say is that for most of the provisions, the civil liberties protections are far greater than that which exists under current law. So, I think that a lot of the critique is misinformed," Gostin added,

Gostin predicts his model legislation will be considered in "virtually every state" when the new state legislative sessions begin in January.

He said his proposed legislation is meant to be picked over by the states and adapted by them as needed, to update their statutes. He said the proposal is not intended to be one-size-fits-all.

The Illinois state legislature recently rejected a proposed bill modeled after Gostin's MEHPA. And, according to King, "God-willing, Congress will never get their hands on [Gostin's legislation] because that would be absolutely the worst-case scenario."

ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.