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
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
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
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
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
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
"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