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a
division of Home School Legal Defense Association
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December 20, 2001
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Review of the
Model State Emergency Health Powers Act
Thomas W.
Washburne, Esq.
Director, HSLDA's National Center for Home Education
Home School Legal Defense Association
routinely reviews proposed federal and state legislation as it pertains
to the freedom of parents to direct the upbringing and education of
their children and to maintain family privacy. HSLDA refrains from
commenting upon matters that reach beyond our core issues.
Introduction
The Model State Emergency Health
Powers Act (MSEHP) is a model act prepared for the U.S. Government's
Centers for Disease Control and Prevention (CDC). A "model
act" is one that states look to as they consider their own
legislation. It is not uncommon for a state to simply adopt the
provisions of a model act. MSEHP was drafted by The Center for Law and
the Public's Health at Georgetown and Johns Hopkins Universities, in
collaboration with several other organizations.1 The draft
considered in this review is dated October 23, 2001.
MSEHP was prepared pursuant to
Healthy People 2010 (Healthy People), a Department of Health and Human
Services' nationwide health-promotion agenda. A large initiative,
Healthy People has 28 goals, ranging from improving access to
comprehensive health care services to reducing injuries and deaths due
to unintentional injuries and violence. These 28 goals give rise to
over 400 objectives. These objectives involve nearly every conceivable
health care issue, and then some. For example, Goal 15, objective 4, is
to deal with proper firearm storage in homes.2
MSEHP appears to have been created
pursuant to Goal 23, which is to "[e]nsure that Federal, Tribal,
State, and local health agencies have the infrastructure to provide
essential public health services effectively. Specifically, Goal 23,
Objective 15, calls for "Model statutes related to essential
public health services."3
The MSEHP preamble cites the tragic
events of September 11, 2001, calling attention to the need to protect
the health and safety of citizens from epidemics and bioterrorism.
MSEHP is intended to act as a model for states planning their responses
to bioterrorism, etc.
Summary
MSEHP would grant emergency powers to
the state governors and public health authorities during a declared
"state of public health emergency." A "public health
emergency" is
an occurrence or imminent threat of an illness or health
condition, caused by bioterrism, epidemic or pandemic disease, or novel
and highly fatal infectious agent or biological toxin, that poses a
substantial risk of a significant number of human fatalities or
incidents of permanent or long-term disability. Such illness or health
condition includes, but is not limited to, an illness or health
condition resulting from a national disaster.
(MSEHP Section 104(l))
MSEHP is designed to facilitate the
early detection of a health emergency. It requires that comprehensive
plans be prepared in advance which would provide a coordinated response
to the health emergency.
In the event of a declared public
health emergency, MSEHP grants the governor extraordinary powers. These
powers include the collection of data and records, the control of
property, the management of persons, and access to communications.
These powers include such things as forced vaccination and treatment
(Section 504), the tracking of individuals (Section 202), access to
patient records (Section 506), and the prohibition of firearms (Section
402(c)). The act requires judicial review for some actions. For
example, for mandatory quarantine to be instigated, a written court
order must authorize the action, unless delay would pose an immediate
threat to the public.
Analysis & Concerns
MSEHP grants enormous power to the
governor in the event of a public health emergency. Hence, at the very
least, it should be readily ascertainable what exactly constitutes a
public health emergency. This is especially important here, as the
decision on whether to declare a public health emergency under MSEHP is
solely in the hands of the governor (Section 301). In fact, only a
two-thirds vote of the state legislature may overturn the governor's
decision, and that only after 60 days (Section 305). Unfortunately, it
is difficult from MSEHP to get a firm grip on what is, and what is not,
a health emergency.
The definition chosen for
"public health emergency," set forth above, is very broad
from a legal perspective. Words such as "imminent,"
"novel," "significant," and "substantial"
are all dependent on a subjective determination. In other words,
whether a public health emergency actually exists under MSEHP in any
given situation could be subject to many differing interpretations. One
governor's public health emergency might well be another governor's
small outbreak.
Drafting an all-encompassing
definition of a public health emergency is admittedly very difficult.
Nevertheless, it would seem that a state considering adopting the model
act might well put in place objective criteria for guiding the
governor. In addition, involving the state's legislature earlier in the
process might protect against the misuse of the declaration.
The definition of public health
emergency notwithstanding, a state might consider whether all the
powers granted under MSHEP are necessary to combat the threat. At the
very least, it should be noted that not all the powers granted apply to
every threat. It might be possible to set forth levels of threat which
have an accompanying level of governmental power. For example, only in
the most extreme circumstances, if ever, could many of the powers in
MSEHP be justified. States would be wise to perfect MSEHP to account
for the various levels of emergency that might be encountered.
Finally, there is little regard in
MSEHP for constitutional liberties. For example, there are many people
who have religious beliefs that preclude them from taking or allowing
their children to receive vaccinations. A state considering MSEHP would
be wise to provide some alternative mechanisms for those who assert
fundamental rights in opposition to action demanded by the state in
confronting the emergency.
Conclusion
MSEHP poses substantial threats to
the liberty and privacy of families. As drafted, whether these threats
are justified depends upon the opinion of only one person: the governor
of a state. A state considering MSEHP should work to improve the model
act to minimize the chance that a governor could make a mistake. In
addition, a state should consider whether the scope of the powers in
MSEHP exceeds the power necessary to respond to a public health
emergency, and whether such powers might be modified to more accurately
address the situation at hand.
1 These groups include the National
Governors Association, National Conference of State Legislators,
Association of State and Territorial Health Officials, National
Association of City and County Health Officers, and the National
Association of Attorneys General. The contact for MSEHP is Lawrence O.
Gostin, J.D., Professor and Director, Center for Law and the Public's
Health, Georgetown University Law Center, 600 New Jersey Avenue, N.W.,
Washington, DC, 20001. Phone: 202-662-9373; e-mail
[email protected].
2 Information on Healthy People 2010
can be found at: http://www.health.gov/healthypeople/Default.htm
3 For a listing of goals, see:
http://www.health.gov/healthypeople/About/goals.htm
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