Health Care at Gunpoint: Do You Trust Your Governor With Your Life?
May 29, 2002
By Gloria Hayes

Although the anthrax terrorist who menaced Democratic leaders, television news anchors and postal workers last fall possessed weapons-grade anthrax, and has managed to elude capture or identification, casualties from his attacks remains steady at five human lives. However, this fugitive's malfeasance has provided justification for an unprecedented incursion on the civil liberties of three hundred million Americans. The threat of biological warfare is no longer merely fodder for Tom Clancy novels, it is provocation for legislation more chilling than the plot of any political potboiler.

The Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities for the Centers for Disease Control and Prevention convened with National Governors Association last October to propose MSEHPA, a model law for states which would empower them to respond to potential acts of bioterrorism. Six states have enacted some version of the bill while more than thirty others are considering its passage.

Unlike its more famous predecessor, the USA PATRIOT Act, Model State Emergency Health Powers Act is being introduced quietly in state legislatures around the country and would empower the governor of each state to impose draconian measures on its citizens based solely on his or her own opinion of what constitutes a health emergency. This can be accomplished without consultation with any public health authority, the legislature, or courts and with absolute legal impunity for the consequences of his actions once he has invoked the Emergency Health Powers Act.

Once such an emergency is declared, the governor or unelected health official is empowered to:

• Enforce vaccination of the populace with federally approved or experimental drugs regardless of religious or health concerns

• Order people out of their homes into quarantines where there would be no guarantee of safety from contagious disease

• Control, restrict or prohibit firearms

• Seize private property, including food, clothing and fuel

• Impose price controls and rationing

• Separate children from their parents and place them into public quarantines managed by government officials

• Demand that physicians administer drugs at the risk of loss of licensure to practice medicine despite the physician's concern for adverse side effects or patients' objections

• Access private medical records without patient consent, meaningful limitation or oversight, and to collect specimens from healthy individuals without history of exposure to disease

• Destroy property alleged to be hazardous without compensation

• Conscript private business into State service

• Call in the militia to enforce execution of health-related executive orders

Health and Human Services Secretary Tommy Thompson is urging State legislatures to adopt the Model State Emergency Health Powers Act, prepared by the Centers for Disease Control and Prevention. Thompson demonstrated during last year's anthrax crisis that protecting Cipro patents was more important than protecting American lives should the attacks continue. Not surprisingly, billions of dollars in financial incentives are being offered to states that adopt the Act.

Civil libertarians have, of course, expressed grave concern for the unfettered power the bill would allocate to governors, and granting unchecked and unlimited authority for a period of 60 days during which the legislature is powerless to act. However, other nonpolitical groups have questioned everything from the bill's efficacy to its necessity.

Dr. Jane Orient, Executive Director of the Association of American Physicians and Surgeons (AAPS) said, "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 underlying premise for the bill was to ensure preparedness to effectively deal with an intentional outbreak of smallpox, however, the phrasing of the legislation is so vague that merely an "imminent threat"of contagion by a biological agent which poses a "substantial risk" of a "significant number" of fatalities is justification to declare a public health emergency. No definition of what constitutes an imminent threat, a substantial risk, or significant number of fatalities is provided.

Lawrence Gostin, the principal investigator who received $300,000 to draft the model law and promote it to the governors dismissed criticism of the bill's vagaries and more excessive components. Gostin said, "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."

AAPS director Dr. Orient wrote a powerful letter to one of the first governors granting himself dictatorial powers over citizens of his state, unsuccessfully urging him to veto the bill.

"Fallible human beings should not be imposing medical treatments on unwilling citizens at gunpoint, or with threats of taking children from their parents, or with other coercive measures - obliterating informed consent and due process of law. Medical consequences - as well as the consequences for the American system of government - could be disastrous."

That governor was Jeb Bush.

The forty-page bill can be downloaded from www.publichealthlaw.net