SPECIAL REPORT

a division of Home School Legal Defense Association
December 20, 2001

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 Gostin@law.georgetown.edu.

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