a.. broaden government access to private
b.. greatly weaken protections against
the taking of private property without compensation;
c.. criminalize refusal to be conscripted
for public service or to take medical treatment;
d.. potentially increase the risk of
infection to many individuals on the pretext of protecting
the common good;
e.. subjugate scientific analysis and
deliberation to the raw assertion of power; greatly expand
the power of government to interfere with commerce;
f.. and immunize state officials from
sanctions against gross abuses of power.
Although certain extraordinary government interventions
might be warranted in a true emergency, the government
already has significant emergency powers as well as the
ability to convene a special session of the legislature.
It is highly inadvisable to completely suspend our delicate
system of checks and balances upon the word of a Governor
that an emergency requires it.
This Act, in effect, empowers the Governor to create
a police state by fiat, and for a sufficient length of
time to destroy or muzzle his political opposition.
The most telling sentence is: "The public health
authority shall have the power to enforce the provisions
of this Act through the imposition of fines and penalties,
the issuance of orders, and such other remedies as are
provided by law, but nothing in this Section shall be
construed to limit specific enforcement powers enumerated
in this Act." Article VIII Section 802.
It is unlikely that the vast expansion of governmental
powers would be restricted to combating a smallpox outbreak.
Once the precedent is established, it could be expanded
to other types of "emergencies."
This proposal violates the very principles that
its author, Lawrence O Gostin, has previously outlined,
while giving them lip service. His article recommends
that "public health authorities should bear the burden
of justification and, therefore, should demonstrate
(1) a significant risk based on scientific
evidence; (2) the intervention's effectiveness
by showing a reasonable fit between ends and means; (3) that economic costs are reasonable;
(4) that human rights burdens are reasonable...."
(see JAMA 2000;283:3118-3122).
HHS Secretary Tommy Thompson is
urging State legislatures to adopt the Model State Emergency
Health Powers Act, prepared by the Center for Law and
the Public's Health at Georgetown and Johns Hopkins Universities
for the Centers for Disease Control and Prevention.
This Act grants unprecedented and unchecked powers to
the Governors of the 50 States. It can be downloaded from
It is likely that HHS will tie passage of the Act to
billions of dollars in federal funding: the usual method
of bribery/coercion to get States to pass legislation
that would otherwise never be considered.
Paul Weyrich of the Free Congress Foundation said: "Tommy
Thompson, whom I have considered a friend for thirty years,
should be ashamed of himself for advocating this kind
of Big Brother legislation. This is not the Tommy Thompson
we knew as a four-term governor of Wisconsin."
HHS is using the 9/11 emergency as a pretext to rush
passage of an Act that has been in the works for more
than a year. Its main author, Lawrence O. Gostin, was
a member of Clinton's Task Force on Health Care Reform,
whose secret documents were exposed to public view as
a result of the AAPS lawsuit (AAPS et al v. Hillary Rodham
Clinton et al.)
He was a member of Working Group 17, Bioethics, of Cluster
V, The Ethical Foundations of the New System, and also
a member of the informal group promoting Single Payer.
It is odd that Tommy Thompson should be urging adoption
of a plan originating with the most extremist left wing
of Clinton's Health Care Task Force.
This legislation is a serious threat to our civil liberties.
Indeed, "this law treats American citizens as if
they were the enemy," stated George Annas, chairman
of the Health Law Department at the Boston University
School of Public Health (San Francisco Chronicle, 11/25/01).
It must be exposed to the light of day in the next month
and a half.
"If protests are sufficient and if conservative
legislators in state legislatures are properly alerted,
perhaps there is a chance to beat back this monster,"
Declaring an Emergency:
Under this Act, any Governor could
appoint himself dictator by declaring a "public health
emergency." He doesn't even have to consult anyone.
The Act requires that he "shall consult with the
public health authority," but "nothing in the
duty to consult ... shall be construed to limit the Governor's
authority to act without such consultation when the situation
calls for prompt and timely action."
The legislature is prohibited from intervening for 60
days, after which it may terminate the state of emergency
only by a two-thirds vote of both chambers. (Apparently,
it does not have the authority to find that the state
of emergency never really existed.) Article III, Section
305(c). There is also the possibility that the Governor
could declare a new emergency as soon as his powers were
about to expire.
What is a public health emergency? It is whatever the
Governor decides it should be. By the definition in the
Act, it could be an "occurrence"-or just an
"imminent threat"-of basically any cause that
involves a biological agent or biological toxin that poses
a "substantial risk" of a "significant
number" of human fatalities or disability. Article
I, Section 104(g). Terrorism need not be involved; any
threat of an epidemic would suffice.
The Act does not define "substantial risk."
Could it mean a 1-in-1,000,000 chance? Risks of that magnitude
are already being invoked as a cause for alarm, say of
a measles outbreak with transmission through an unvaccinated
child, and a pretext for removing exemptions to mandatory
vaccines. The EPA also uses such low (and purely hypothetical)
risk as the rationale for very costly regulations, so
the precedent is well-established.
Is a "significant number" five (the number
of deaths from anthrax as of the date of this writing);
24 (the number of deaths from chickenpox in 1998 and 1999
combined, 12 of them in persons under the age of 20, used
as a reason for mandatory childhood vaccination); 100
cases of AIDS; or is it thousands of deaths from smallpox,
as most readers may assume-or a single case?
It could be any of these because the definition is at
the sole discretion of the Governor. The most plausible
of the dire threats generally cited is a smallpox outbreak.
However, given the nature of the disease and
advanced medicine and sanitation, such an outbreak could
be contained without any of the extreme measures in this
Act, just as in the 1970s. (See, for example,
"Super Smallpox Saturdays?" by Michael Arnold
Glueck, M.D., and Robert J. Cihak, MD, <http://WorldNetDaily.com>;,
Nov. 15, 2001.)
Because of the adverse side effects of the vaccine (including
death), more harm than good could be done by an ill-advised,
unnecessary mass vaccination campaign.
Patient Privacy Abolished: The Act would impose significant new reporting
requirements on physicians and pharmacists, further diminishing
the confidentiality of medical records.
Personal identifying information would have to be reported
in writing, without patient consent, in the event of "an
unusual increase" in prescriptions related to fever,
respiratory, or gastrointestinal complaints that might
represent an epidemic disease or bioterrorism, or of any
other illness or health condition that could represent
bioterrorism or epidemic or pandemic disease. Such conditions
Gostin concedes that his privacy provision is based on
his own model privacy act of 1999, which apparently no
state has adopted. Like the Clinton privacy regulations
that AAPS is now challenging in court, Gostin's view of
privacy is to allow unrestricted disclosure to federal
authorities. Section 506.
How would the Governor handle the
emergency? By whatever means he chose. He is under no
obligation to use scientifically valid methods, or to
choose the least destructive method, or to perform any
kind of risk-benefit analysis.
He may suspend any regulatory statute, or the rules of
any state agency, if they would "prevent, hinder,
or delay necessary action." Article III, Section
303(a)(1). Among the laws to be suspended would probably
be those permitting religious, medical, or philosophical
exemptions to mandatory vaccines.
The Governor may not only utilize all the resources of
the State and its political subdivisions, but commandeer
any private facilities or resources considered necessary,
and "take immediate possession thereof. Such materials
and facilities include, but are not limited to, communication
devices, carriers, real estate, fuels, food, clothing,
and health care facilities."
Article IV Section 402(a). He may "compel a health
care facility to provide services," but it is not
clear what means he may use to compel its personnel to
work (Article IV Section 402(b)), except that any physician
or other health care provider who refuses to perform medical
examination or testing as directed shall be liable for
a misdemeanor. Article V Section 502(b).
The Governor may destroy any material or property "of
which there is reasonable cause to believe that it may
endanger the public health." Article IV Section 401(b).
And while the State shall pay just compensation to the
owner of any facilities that are "lawfully taken"
or appropriated (Article IV Section 406), there is a huge
"Compensation shall not be provided for facilities
or materials that are closed, evacuated, decontaminated,
or destroyed when there is reasonable cause to believe
that they may endanger the public health pursuant to Section
401." Article IV Section 406.
The Governor is in charge of determining "reasonable
cause." There is a strong incentive for him to declare
any losses to private owners to be noncompensable.
"Reasonable cause" might mean "contaminated."
Is the Senate Hart Office Building contaminated with anthrax?
Yes. Should it therefore be destroyed, or subjected to
fumigation with chemicals that would destroy much of the
equipment and furnishings? Most think not.
The problem is that given a sufficiently sensitive testing
method, everything is probably "contaminated"
with almost everything else. Moreover, every testing method
has some level of false positives.
The late Conrad Chester of Oak Ridge National Laboratory
stated that any place that has ever supported cattle has
anthrax contamination (lecture before Doctors for Disaster
Preparedness annual meeting, 1996). The same probably
applies to any land that has supported sheep or goats,
or any land that has had the wind deposit soil from such
In other words, anthrax spores are probably ubiquitous,
though at a concentration that very rarely causes any
harm. Such harm as was done may have been misdiagnosed
by physicians who were unfamiliar with anthrax and not
specifically looking for it.
Under this law, nothing would stop the Governor from
ordering a citizen to turn over his house to be used as
an isolation facility, and later destroying the house
on the grounds that it is contaminated. This order, like
any other, could be enforced at gunpoint by any law enforcement
In a time of public hysteria, fanned by press
coverage based on the "if it bleeds, it leads"
policy, common sense is likely to be an early casualty.
It is even possible that terrorists-or persons bent on
radical transformation of society and the American form
of government-could deliberately raise a false alarm and
influence a Governor to take action that would result
in more damage to freedom than the terrorists themselves
could ever accomplish.
Or radical environmentalists (who haven't, to date, generally
had the label of terrorist applied to them) could bring
about the destruction of an activity that they object
to (such as logging, cattle ranching, or modern farming).
There are no checks and balances in this Act to prevent
such an occurrence, and no meaningful accountability for
the public officials who carry out a basically misguided
policy, however destructive.
Command and Control: 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
Although the world has 40 centuries of experience to show
that the effect of price controls on the economy is comparable
to that of an asteroid impact on the earth, the Act empowers
the Governor to ration, fix prices, and otherwise control
the allocation, sale, use, or transportation of any item
as deemed "reasonable and necessary for emergency
This specifically includes firearms. Article IV Section
402(c) and Section 405(b). Moreover, the Governor can
simply seize such items. Article IV Section 402(a).
The Act grants Governors the exclusive power to control
the expenditure of funds appropriated for emergencies;
the intent and priorities set by the Legislature would
The Governor may delegate powers at his sole discretion
to unelected political appointees.
Criminalizing Refusal of Medical Treatment:
The Act empowers the public health
authority to decide upon medical treatment or immunizations
and to impose its view on individuals, who are liable
for a misdemeanor should they refuse.
Article V Section 504(b). Although it might in some circumstances
be prudent and justified to quarantine a person who refuses
immunization during an outbreak, it is tyrannical to criminalize
the medical choice to decline a treatment.
An immunization or treatment might well cause serious
harm to certain individuals even if the public health
authority does not recognize that it is "reasonably
likely" to lead to "serious harm"-another
two important undefined terms. Article V Section 504(a)(4).
The Act gives the public health authority the right to
isolate or quarantine a person on an ex parte court order,
with no hearing for at least 72 hours. If the public health
authority decides that an unvaccinated person is a risk
to others, even if uninfected, he could be quarantined.
Article V Section 503(e). It is quite possible that public
health authorities could force such a person from his
home to a place of quarantine, where he will be exposed
to infected persons. Such places shall be maintained in
a safe and hygienic manner "to the extent possible,"
and "all reasonable means shall be taken to prevent
the transmission of infection among isolated or quarantined
Article V Section 503(a). The Act itself thus implies
that an uninfected person is at risk by being placed in
such a facility; it is quite likely that he could be at
greater risk than if he had the freedom to protect himself
as he saw fit. It is assumed that public health authorities
will be "reasonable"; however, this assumption
Even now, children not vaccinated against hepatitis B
are being excluded from school even though there is NO
risk that an uninfected child can transmit the disease
and a minuscule risk that he can acquire the disease at
Zero Accountability: If the State does more
harm than good through unfettered use of its draconian
power, it can rely on the state immunity clause:
"Neither the State, its political subdivisions,
nor, except in cases of gross negligence or willful misconduct,
the Governor, the public health authority, or any other
State official referenced in this Act, is liable for the
death of or any injury to persons, or damage to property,
as a result of complying with or attempting to comply
with this Act or any rule or regulations promulgated pursuant
to this Act."
Article VIII Section 804.
Note that the law would grant certain immunities even
for deaths improperly caused, and allows such immunity
even for advisors who made recommendations based on conflicts
An Alternate Proposal
Although this Act should be rejected,
there are certain measures that State governments might
want to consider:
a.. A reevaluation of the procedures
for effectively quarantining persons who are a significant
demonstrable risk to others, while preserving due process
and substantive rights;
b.. Improving overall preparedness for
attacks with weapons of mass destruction:
c.. upgrading and expanding facilities
for the prompt detection and identification of infectious
agents, toxins, chemical weapons, and radioactivity;
d.. evaluating and augmenting State
and local supplies of vaccines, antibiotics, protective
gear for first-responders and medical personnel, isolation
facilities for treatment of casualties, shelters against
radiation, potassium iodide, other essential equipment
and supplies, and information on self-protection available
for rapid public distribution;
e.. Measures to protect private citizens,
including physicians, against civil liability resulting
from efforts to aid others in an emergency (suggested
in Article VIII Section 804);
f .. Permitting the State to waive certain
licensure requirements for the duration of the emergency
to permit recruitment of additional personnel (Article
V Section 507(a)); and
g .. Suspending State, federal, or local
regulations or ordinances that interfere with prudent
response to an emergency while providing no scientifically
proven significant benefit, subject to ultimate review
and rescission or post-emergency resumption without retroactive
penalties, based on scientifically valid methods.
There are many EPA requirements, for example, that are
not based on good scientific evidence and could be disastrous
in a real emergency. At the time of the World Trade Center
fire, the EPA had to acknowledge that asbestos controls
were totally excessive, in order to prevent a public panic
about inhaling the white dust.
(Indeed the ban on the use of asbestos
above the 64th floor might have hastened if not caused
the collapse of the buildings-see Jon Dougherty, <http://WorldNetDaily.com>;,
November 20, 2001).
The ban on DDT (imposed despite the overwhelming preponderance
of scientific advice and evidence opposed to this action)
would severely inhibit the containment of an outbreak
of mosquito or other insect-borne diseases.
The ban on incinerators because of exaggerated concerns
about insignificant releases of dioxins would prevent
the safest and most expeditious method of destroying dangerously
States can and should improve their ability to respond
to disaster, including bioterrorism. However, having
the Governor play doctor and dictator is not the right
response. Citizens should distribute information
about the actual content of the Model Emergency Health
Powers Act to opinion leaders, newspaper editors, columnists,
the Chamber of Commerce, business groups, medical society
officials, legislators, and the Bush Administration.
You can go to <
http://www.aapsonline.org >; and send
an e-mail to Bush.
Much more information is also available on the AAP site.