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YES: New laws are needed to enable federal and state
agencies to work together in an emergency.
Posted Dec.
18, 2001
By
Lawrence O. Gostin
Sept. 11 changed the public's
perception about the importance of the health, safety and security of
the population. Following Sept. 11, the intentional dispersal of
anthrax through the U.S. mail increased public concern. 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 draft Model State Emergency Health Powers Act
(www.publichealthlaw.net) demonstrates a commitment across party lines
to protect the nation against bioterrorist attacks, including an
engineered outbreak of smallpox and naturally occurring infectious
diseases capable of causing mass causalities. (Smallpox is a disease
that is not likely to appear in a naturally occurring form because it
was eradicated by an effort from the World Health Organization.) The
act was written by the Center for Law and the Public's Health at
Georgetown and Johns Hopkins universities at the request of the Centers
for Disease Control and Prevention (CDC) to serve as a tool states can
use as they review their existing emergency health laws.
Public-health laws across the country are highly antiquated, built up
in layers during the last century. Old laws often are outmoded in ways
that directly reduce their effectiveness and conformity with modern
standards of public-health and constitutional law. For example, most
state laws do not require reporting of all the diseases officially
recognized as the most likely agents of bioterrorism. The laws may
thwart public-health responses by prohibiting communication between
federal and state agencies such as public health, law enforcement and
emergency management. In other cases, a particular power, such as
quarantine, may exist but it does not conform with modern
constitutional law. This could result in indecision and litigation in
the event of a public-health emergency.
The act addresses these and many other problems in public-health law.
In fact, the U.S. Department of Health and Human Services and the
Institute of Medicine have called for reform of public-health law. The
model law has four major sections, each of which is essential to
ensuring preparedness for events such as an intentional dispersal of
smallpox. The first two parts — emergency planning and surveillance —
are intended to be put into effect as soon as the law passes in each
state.
The act requires each state to be well-prepared for a public-health
emergency. It offers detailed procedures and standards for planning.
For example, the states need to think carefully about issues of
coordination between federal, state and local agencies, communication
to the public and how to handle the logistics of a public-health
emergency.
Exercises planned by the federal and state governments before Sept. 11
showed that there was considerable confusion and lack of coordination.
One of these exercises, "Dark Winter," involved smallpox; the
result was many thousands of projected deaths.
The act requires improved public-health surveillance — the system of
careful watchfulness to detect and monitor threats to health.
Surveillance is the nation's early-warning system. At present the
surveillance system is badly in need of improvement. The model law
allows for the kind of monitoring and information-sharing necessary to
ensure the public's health. Privacy safeguards are built into the model
law. For example, public-health authorities may not disclose the
information to employers, insurers, family or friends. But the law
would allow sharing, for example, between public-health agencies among
the various states (e.g., New York, Connecticut and New Jersey). The
law also would permit sharing of data with law-enforcement and
emergency-management services, but only where necessary to protect the
public's health.
The next two powers — managing property and persons — would be
exercisable only when the governor declares a public-health emergency.
There are many checks and balances on the governor in declaring an
emergency. The governor could do so only if there were compelling
grounds for believing that there is a strong potential for mass
casualties from bioterrorism or a novel infectious disease. It is not
intended that long-term endemic diseases such as HIV/AIDS would be
covered. The judiciary can review the determination of an emergency.
Just as important, the legislature could discontinue the emergency.
Thus, the law follows the traditional constitutional role of checks and
balances to avoid abuses of power.
The act would permit control of property in a number of ways. These
powers are well-established in public-health practice and
constitutional law. If a facility such as a subway station or stadium
were contaminated and a danger to the public, it could be closed. If an
item were contaminated, such as an anthrax-laced piece of clothing, it
could be destroyed. These are standard exercises of state governments'
"police power" and have been in effect since the founding of
the republic.
The law also allows public-health authorities to use goods, services
and property for the public good. For example, if a hospital were
needed to provide emergency care, the authorities could use it; if a
private stockpile of vaccines or pharmaceuticals were needed for the
public good, the authorities could use it. These are what are called
"takings" in constitutional law. Government may take private
property for public goods, provided that they provide compensation. The
model law provides property owners the right of due process and it
provides compensation for "takings." In this way, the
drafters intended the law to be highly respectful of constitutional
rights.
Finally, the model law allows public-health authorities to arrange for
vaccination, testing, treatment and, if necessary, isolation or
quarantine. These infectious-disease-control powers also are
well-established in public-health practice and constitutional law. The
model law, in fact, provides rights for individuals that do not exist
in many current state laws. For example, before issuing a quarantine,
public-health authorities usually would have to obtain an order of the
court. Once the person was in quarantine, he could have a full
due-process hearing. Persons in quarantine would have many new and
improved entitlements that simply do not exist in state laws, such as
the right to health care, food, clothing and a means of communication
with family members and attorneys.
The need for reform has been overwhelmingly supported by the vast
majority of people and organizations who have commented. In fact, the
model law has been downloaded more than 20,000 times from the Website
and has initiated comments from a broad spectrum of citizens,
organizations and industries. Certainly there is disagreement on the
details; some have urged greater attention to public health, while
others have urged greater attention to civil liberties. The drafters
respect and encourage this kind of public debate. There always are
delicate trade-offs between public health and civil liberties. Only a
handful of people have opposed the very idea of public-health-law
reform; these comments usually have come from the extremes of the
political spectrum. As one governor remarked, "The political left
have met the political right in opposition to the model law" —
leaving the vast majority of Americans in the middle and unprotected.
What are the major objections to the law? There are those who oppose
the idea of mandatory vaccination, treatment or quarantine. But this is
highly problematic from a common-sense perspective. For example, if
there were an outbreak of smallpox, clearly there would be a need to
vaccinate persons who were exposed or potentially exposed to the virus,
as recommended by the Department of Health and Human Services.
Similarly, if a person had smallpox, it would be inconceivable that we
would allow him to go into a congregate setting such as a school or a
workplace. Certainly most people voluntarily would agree to submit to
vaccination or quarantine, but some would not. In the event that a
person acts in a way that seriously threatens the public's health, it
makes sense to ensure the health and well-being of the community.
Others might concede that compulsory powers are sometimes necessary as
a last resort, but desire additional safeguards. This is a legitimate,
indeed essential, debate. As I have indicated, the draft act sought
very hard to respect individual rights provided by due process and
patient rights.
Still others are more concerned about property rights. These groups
argue that diminution of property rights discourages investment in
biotechnology and undermines free enterprise. Private property is worth
protecting and society does want to reward innovation. However, in
public-health emergencies where the lives of many thousands are at
risk, industry should understand the need for a cooperative effort.
Owners whose property has been used for public goods are entitled to a
hearing under the act and to compensation. However, the private sector
should not be permitted to delay vaccines, drugs and treatment to
people in urgent need.
Public-health laws and our courts traditionally have balanced the
common good with individual civil liberties. As Justice John Marshall
Harlan wrote in the seminal U.S. Supreme Court case of Jacobson v.
Massachusetts, "the whole people covenants with each citizen, and
each citizen with the whole people, that all shall be governed by
certain laws for the 'common good.'" The model act strikes such a
balance. It provides state officials with the ability to prevent,
detect, manage and contain emergency health threats without unduly
interfering with civil rights and liberties. The act ensures a strong,
effective and timely response to public-health emergencies, while
fostering respect for individuals from all groups and backgrounds.
Gostin, a law professor at Georgetown University, is director of the
Center for Law and the Public's Health. He supervised the writing of
the Model State Emergency Health Powers Act.
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http://insightmag.com/main.cfm?include=detail&storyid=160393
NO: Swelling the intrusive reach of the states should be
avoided.
Posted Dec. 18,
2001
By Robert C.
Cihak and Michael Arnold Glueck
The short answer to the question
of whether states need expanded powers to prepare for a bioterror attack is
"no, no way and absolutely not!" The states already have too much
power over citizens. However, states do need to update their laws and
regulations in response to new knowledge about terrorist tactics and
scientific advances.
Only the unlimited imagination of evil people provides any limit to the
number of potential threats. For defense against an unlimited list of
unknowable threats, we must choose between the feeble strength of a strong
or totalitarian government or the unlimited strength of a free people.
Smallpox, plague and many other infectious diseases once spread in
epidemics, decimating afflicted peoples. In the most virulent epidemics in
very poor communities it sometimes kills most of those infected. But this
would not be the pattern in America today. Potent poisons and radiation
also are touted as possible weapons for terrorists. A combination of
vigilance, communication, modern medical practice and laws already on the
books greatly have reduced the danger of recent threats and outbreaks.
For example, the smallpox virus spreads from one infected person to the
next, mostly by those infected coughing out the virus in tiny water
droplets. However, smallpox only multiplies and spreads in human beings
(and in specialized tissue cultures in laboratories) and doesn't live more
than a few weeks outside a human host. By contrast, anthrax bacteria do not
spread from one person to the next but, in some circumstances, the spores
can survive for decades.
Smallpox patients become very sick within a week or two after infection but
— and this is vital — they don't become contagious until after they are
sick in bed and spots on the skin start to develop. They're usually so sick
that they are not capable of normal activity, limiting contagion to
immediate contacts in the hospital or at home. After diagnosis and
isolation, further spread is highly unlikely since the patient's family,
caregivers and others gladly would volunteer for vaccination and other
treatment.
Unlike infectious agents that sometimes spread from one person to the next,
illness from toxic agents causing direct poisoning, such as lethal doses of
sarin gas, ricin or radiation, usually is limited to those directly exposed
to the initial dose. More importantly, all known agents are not toxic when
adequately diluted. In fact, low doses of radiation have proved to enhance
health in human beings.
If smallpox or other infectious disease does break out, prompt treatment sometimes
can prevent or significantly reduce the severity of illness.
Modern medical practice and the high standard of living in America probably
are more important in preventing and treating these possible outbreaks. In
recent decades, the power of medical treatment likely to be helpful in
treating the disease has exploded. New treatments include antivirus
medicines and supportive measures such as intravenous fluids and medicine
to help control dehydration, fever, nutritional deficiencies and pain. Many
of these treatment techniques are routine. Today, they would reduce the
severity and save many lives from exposure to many infectious and toxic
agents.
In short, while immunizing or protecting everybody against all possible
threats might seem like a logical option, in reality it would not be
necessary or desirable. America's high standard of living allows a great
deal of flexibility in responding to possible emergencies. For example,
many Americans wisely have a stockpile of food, water and other necessities
stored in their homes so that survival at home is possible for several days
to several months. In poorer societies food often is consumed when and if
available, without any stockpile for emergencies. In theory, even in
America, a total war against all possible threats could consume all the
resources of the country, even food, with nothing left over for anything
else.
Because of medical advances in supportive medical treatment and the
relatively small supply of vaccine now available, we agree with public-health
experts who recommend holding off vaccinating the general public against
rare or uncommon conditions until there is a demonstrated outbreak.
Obviously, stockpiles of emergency vaccine should be widely distributed
around the country; stockpiling an entire vaccine reserve in one location
could complicate distribution if air transportation were shut down, as it
was on Sept. 11.
So long as threats remain hypothetical, the general public should not be
encouraged or required to risk injury or death from treatments they may
never need.
Congress recently passed and President George W. Bush signed the USA
PATRIOT Act granting the federal government powers formerly thought
unconstitutional (see "Police State," Dec. 3). Now comes a
proposed Model State Emergency Health Powers Act that would give similar
powers to state governors, including blanket powers to force vaccination,
ration medical care and to seize and destroy private property. Although we
recommend that states do review and update their public-health laws, the
proposed legislation would do more harm than good.
Whence cometh this new power grab? From the academics and the experts,
naturally. The Center for Law and the Public's Health at Johns Hopkins and
Georgetown universities published this proposed emergency health-powers
act. The law would give the governor of a state the power to declare an
emergency in the face of "health threats" and would endow state
officials with blanket powers to control citizens and their property in
order to control the threat of disease.
The center is funded (not surprisingly) by the federal government's Centers
for Disease Control and Prevention (CDC). Lawrence O. Gostin, the director
of the center, was a member of Bill Clinton's Task Force on Health Care
Reform, as well as Working Group 17, Bioethics, of Cluster V, The Ethical
Foundations of the New System, and the informal group promoting single
payer. The proposed law has been distributed to governments in all 50
states.
Under this proposal, a governor could declare a "state of
public-health emergency" with or without consulting public-health
officials. The governor only has to declare that a potentially fatal threat
could exist, and state officials would possess wide latitude to confiscate
and destroy property, as well as force immunization and other medical
treatments on everybody. The law would justify innumerable abuses now
deemed unconstitutional. For example, the governor could confiscate a
private home to quarantine individuals infected with communicable disease and
then declare the home contaminated and destroy it without any compensation
to the owners.
The fundamental premise of the proposed law, according to the October
draft, is that "the government's foremost responsibility is to protect
the health, safety and well being of its citizens." But according to
our Declaration of Independence, "Governments are instituted among
men" to secure "certain unalienable rights" and that
"among these are life, liberty and the pursuit of happiness."
Securing persons' rights is the foremost government responsibility, not
protecting citizens. Public safety is a precondition for the exercise of
rights; it is not an end in itself.
According to George Annas, chairman of the Health Law Department at Boston
University School of Public Health, "This law treats American citizens
as if they were the enemy."
We're on an exceedingly slippery slope here. In Washington state, for
example, the threshold for government declaration of "emergency"
is very low. Several years ago, to avoid the possibility of political
accountability by a vote of the public, the governor declared financing of
a sports stadium to be such an "emergency." In CLEAN v. State of
Washington, the Washington state Supreme Court upheld the governor's use of
"an emergency clause in the law passed to provide public financing for
the new Mariners' stadium in Seattle," according to Citizens for
Leaders with Ethics and Accountability Now! (CLEAN) based in Tacoma. Very
roughly paraphrased, the court told Washington state citizens something
like "So, you think you've got a problem with the governor? Well,
you're right; you do have a problem with the governor. His job is to
implement the laws written and defined by the Legislature. The governor and
Legislature said there was an emergency. Who are you to say
otherwise?"
Now repeat some smallpox-related variation of this reasoning in 50 state
supreme courts, under conditions of mass concern and with state
bureaucracies ever eager to enhance their powers. History gives little
reassurance that the experts and elite have all the best answers to all
questions or responsibly will use power, especially when the power is
total.
According to a Dec. 3 analysis by the Association of American Physicians
and Surgeons (AAPS), "The Act assumes that the best method to use in
an emergency is force and central control. There is no evidence that force
works better than leadership, which can bring out the best in citizens
coming together to meet the crisis, just as firefighters, police, medical
professionals, hotel owners and other businessmen did in New York City.
Totalitarianism is not only evil but has had uniformly disastrous
results."
The act assumes that human freedom is a weakness in the face of terrorist
threats. We strongly demur: Human freedom is our great strength. Free
people respond to leadership much more vigorously than a people held in
place by power, fear and terror of their own government. Witness the recent
evaporation of the Taliban power structure in Afghanistan.
In sum, additional state power is unnecessary, even if the proposed law
proves to be constitutional and survives civil-rights challenges. Existing
state powers are more than adequate. If faced with unprecedented
circumstances, we're confident that state legislatures will act with
unprecedented swiftness. In addition, government officials throughout the
ages have bent the law in response to unprecedented circumstances; we're
sure officials would be so inclined and adept if a real need arose. In the
meantime, expanded state government "emergency" powers likely
would be abused more often than appropriately used. Ironically, endowing
state government with such immense power easily could result in fear and
terror more pervasive than possible from any possible terrorist attacks.
Governments, like doctors, should "First, do no harm." And
governments, like doctors, should avoid overtreating.
Cihak, of Aberdeen, Wash., is the former president of the Association of
American Physicians and Surgeons (AAPS). Glueck, of Newport Beach, Calif.,
writes extensively on health-care policy issues. Both are medical doctors
and practicing radiologists.
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