http://plague.law.umkc.edu/blaw/bt/MSEHPA_review.htm

Terrorism and Bioterrorism Resources

By Edward P. Richards, J.D., M.P.H.
Professor of Law and Executive Director, Center for Public Health Law
Katharine C. Rathbun, M.D., M.P.H.
Public Health Consultant and Director for Medicine and Epidemiology, Center for Public Health Law
University of Missouri Kansas City School of Law
Direct comments to: [email protected]

Introduction

It has often been said that crisis brings out the best and the worst in people.  The same is true of legislatures.  The events of 9/11 led to welcome bipartisanship in Congress and state houses.  Unfortunately, 9/11 is also fueling a "do something" mentality which is encouraging legislatures to pass laws without a clear understanding of their implications for either individual liberty or national security.  The proposed Model State Emergency Health Powers Act is a prime example.  It will not improve public health practice or our response to bioterrorism.  In fact, it may make such responses more difficult by undermining  confidence in public health agencies and by disrupting the complex web of existing state public health laws.

What is the Model State Emergency Health Powers Act?

(read it here) This is a proposed model law, primarily written by academics at the Center for Law and the Public's Health, a federally funded project at Georgetown and Johns Hopkins Universities.  It was done as a response to concerns about bioterrorism raised by the events of 9/11.  The act is based on the assumption that existing state laws are wholly inadequate to confront a bioterrorism event and should be superseded by a comprehensive act which will override any conflicting state laws.  The act is made up of a combination of newly drafted statutory provisions and parts of existing laws from different states.  It attempts to deal with bioterrorism in isolation from other public health issues through concentrating power in the state health officials, power that is usually exercised by the state governors.  It spans approximately 40 pages and attempts to micro-manage the state's response by very detailed statutory provisions rather than the traditional use of a general statute that is then fleshed out with administrative regulations and guidelines.

This act is driven by the rhetoric that many state public health laws were drafted 50, 100, or even more years ago.  The assumption is that such old laws cannot be useful in the modern world.  The Centers for Disease Control funding for public health law research has been based on this model.  The federal research money and most of the private foundation support has gone to global law reform projects rather than the development of materials to help states improve existing laws and to guide lawyers who represent state and local health agencies.  These projects started as AIDS law projects, with the objective of limiting state authority to collect public health information and to impose restrictions on individual behavior.  Ironically, some of the most troubling problems with state public health authority are the result of "reforms" recommended by these law reform projects and enacted in the 1980s and 1990s.  Old statutes which granted broad public health authority and which were repeatedly upheld by the courts, were replaced with laws that limited state public health power and shifted decisionmaking from public health professionals to judges.

The Problem with Model Public Health Law Acts

Model acts can be useful vehicles for law reform when the acts are narrowly tailored to address specific problems which lend themselves to uniform and inflexible solutions.  Even in such areas, however, there is a better mechanism for establishing standards.  Public health law is a special practice area of administrative law - the law that governs the workings of state and federal agencies.  The most important aspect of agency law is that agencies need flexibility to respond to changing threats and to craft new approaches when needed.  This is very difficult to do when agencies are governed by detailed, specific laws.  The better course is to give the agencies broad powers and let the agencies use their expertise to fill in the details with administrative regulations and guidelines.

The use of administrative regulations and guidelines which are subject to public comment and review is more democratic and leads to better regulations because it can be better tailored to the specific needs of the state.  Most importantly, administrative regulations can be modified as agencies gain more knowledge about public health threats.  Detailed statutory schemes have two dangerous flaws. First, they are difficult to change, especially once the legislature loses it interest in bioterrorism.  Second, it is impossible to predict the collateral effects of enacting a hastily drafted statute and all the expected amendments that will creep in during the legislative process.  The likely result is a law that weakens public health practice and muddles state authority, but will be very difficult to change.

This administrative law approach, with agencies fleshing out broad statutory authority with regulations is why 100 year old laws can still work, just as a 200+ year old Constitution still works.  The key to this process is that the courts defer to administrative decisionmakers when they are operating under broad grants of authority.  This process is derided by some scholars as being too vague and no longer constitutionally adequate, but it has been strongly endorsed by the United States Supreme Court and all state supreme courts.  Thus a traditional state law establishing a health department might say little more than that the department had all necessary powers to protect the public health.  As long as the actions taken by the health agency were rationally related to protecting the public health they would be upheld by the courts.  Since public health agencies are subject to political controls, they are unlikely to greatly overstep the bounds of acceptable regulation.  (For a detailed argument for why the administrative law model should be replaced with a judicially driven model, see Gostin, L. O. Public Health Law : Power, Duty, Restraint. Berkeley New York, University of California Press ; Milbank Memorial Fund (2000))

The most serious flaw in the Model State Emergency Health Powers Act is that it ignores the diversity of state government structures and state constitutional law.  Public health law, more than any other area of law, is a creature of individual state history, state constitutional provisions, court precedent, and the state's physical and political environment.  It is seldom codified in a single place, but usually is spread through many different parts of the state law and constitution.  The Model State Emergency Health Powers Act cuts across all those interlocking laws and traditions and will have unpredictable consequences, including generating state and federal constitutional law problems which may ultimately disrupt public health law practice.  It is especially troubling that the act attempts to specify where the ultimate state authority should lie for specific public safety concerns, which will encourage conflicts in authority, rather than clarify it.

What is the Real Problem with the Public Health System?

This proposed law is based on two unsupported assumptions:

1) The problems with the public health response to bioterrorism and other public health threats are due to inadequate legal authority; and

2) A detailed uniform act is the best approach to reforming state public health law reform.

The fundamental problem with our response to bioterrorism is not inadequate legal authority.  It is that health departments do not have adequate political and economic support.  One consequence of this lack of public support is that many health department positions, from directors to the front-line inspectors, are staffed by individuals who are not properly trained and do not adequate experience in public health practice.  This was documented in the IOM report, The Future of Public Health, in 1988 and all indications are that the skills of public health departments have not improved since that report.  The inability to respond to a bioterrorism threat is just an extreme example of the general inability to respond to public health threats ranging from food borne illness to emerging infections diseases and the growing threat that antimicrobial resistance will reverse most of our progress in conquering infectious diseases.

The major legal problem is the dearth of skilled public health law practitioners and an informed judiciary, not that existing public health laws provide inadequate authority.  There are instances where state laws do need to be strengthened.  In most cases, even these states had adequate authority in 1960 to manage any public health threat.  They lost the authority in the 1980s and 1990s as legislatures responded to pressure by civil libertarians to  limit the state's right to collect information about communicable diseases and to impose personal restrictions without lengthy and costly legal proceedings which shift decisionmaking from public health professionals to judges.  Most state public health laws and constitutions provide enough power to deal with bioterrorism and other public health threats, if the existing laws are used forcefully by skilled practitioners.

Most troublingly, the Model State Emergency Health Powers Act ignores the most important dimension of emergency legal powers: judges will not stand in the way of emergency actions taken to protect the public from a clear and present danger, and if they do, the state appeals court will over turn their rulings in a matter of hours.  From the Alien and Sedition Acts to Korematsu, the history of judicial restraint on emergency powers is one of blind obedience to civil and military authority, not one of necessary actions thwarted by overly particular jurists.  It is inconceivable that the courts would stand in the way of actions to control a major public health threat such as a smallpox outbreak, even if the state was clearly stepping beyond its statutory powers.  (See The Jurisprudence of Prevention) This reality makes the Model State Emergency Health Powers Act unnecessary in a true emergency and unjustifiably broad as a response to non-emergency situations.

What Should Be Done?

Each state should develop a plan to coordinate emergency services personnel, the national guard, and public health departments to respond to major public health threats. These may be due to bioterrorism or more mundane threats such as chlorination failure in a municipal water treatment system or the arrival of an international traveler with a serious communicable disease.  Most states have already made significant progress with such plans as they apply to other emergencies and natural disasters.  If there are things the state believes that it cannot do under its existing laws, it should seek advice from lawyers who are expert in dealing with agency laws, rather than constitutional law experts.  The best source would be administrative law practitioners in top business law firms who could assess whether the state really needs to revise its laws and how it can do so in the least disruptive way. Whenever possible, this should be done through administrative regulation and executive orders, which provide more flexible responses than statutes.

Each state should start a longer range process to study the structure and staffing of public health departments to assure adequate expertise and training of all key personnel and, as much as possible, to replace political appointees with skilled public health professionals, especially physicians who are certified public health specialists.

Each state should begin the process of studying its public health laws by working with public health practitioners to find areas where there is inadequate authority or conflicting mandates.  These statutory problems should be remedied as simply as possible before states attempt wholesale revision of their public health codes.  Since one of the major impediments to effective public health law practice is the absence of any public health law practice guides, the state should prepare a clear guide to public health law practice in the state.  This will help the city, county, and state attorneys who assist in the front line work of public health enforcement.

Each state should also address the lack of professional opportunity in public health law practice.  Finding expert legal support for public health poses a special problem because most lawyers who provide public health legal services work for city, county, or state legal departments, not the public health departments. These lawyers do not identify themselves as public health lawyers and do not belong to public health professional associations such as the American Public Health Association (APHA). There are no professional organizations for public health lawyers and few opportunities for the private practice of public health law. City, county, and state legal departments do not provide career paths for public health lawyers. Public health legal work often goes to the most junior lawyer in the office, who will then pass it to the next lawyer as soon as possible. The result is that there are very few career public health attorneys and few legal departments with any personnel skilled in public health law.

Conclusions

There is no need for any state to enact the Model State Emergency Health Powers Act.  It is critical to avoid overreaction and the passing of ill-conceived legislation during a time of crisis.  States should determine what changes in their own laws will allow them to carry out their state emergency management plans, and make only those changes.  In most states, these changes will be minor or will not be necessary at all.  States should evaluate their legal support for their public health agencies and develop public health law career tracks that will attract and retain the best possible legal talent in public health law practice.

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.