1-4-02

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Model State Bioterror Law Stirs Controversy
Dave Eberhart, NewsMax.com
Thursday, Jan. 3, 2002

The Model State Emergency Health Powers Act (MEHPA) has come under fire for giving governors and state health officials broad power to involuntarily quarantine and vaccinate citizens, as well as authority "to control, restrict and regulate ... food, fuel, clothing and other commodities, alcoholic beverages, firearms, explosives, and combustibles ..."

Lawrence Gostin, a law professor at Georgetown University and professor of public health at Johns Hopkins University, wrote the draft bill, a blueprint for future state legislation, with grant money from the National Institutes of Health.

Although no state has yet enacted legislation based on the model, the American Legislative Exchange Council (ALEC), a bipartisan group of state legislators, has warned the plan would intrude on Americans' civil liberties.

Meanwhile, Citizens' Council on Health Care (CCHC), a Minnesota-based health lobby, is concerned that the proposal would provide intrusive authority for purposes far beyond bioterrorism.

But Gostin recently defended his draft bill. "The idea that we need it is very clear, "he maintained, adding that when the next bioterror shoe drops, the states would be unprepared to counter the threat "without being able to plan, to conduct surveillance, to treat, to test, to vaccinate people, or if necessary, even to confiscate pharmaceuticals or vaccines."

Government Does Not Have Enough Power?

"Some states have far too few powers," Gostin explained. "Anybody who thinks we can fight a 21st century battle against bioterrorism with early 20th century legislation really just doesn't understand the sorry state of public health law in America."

But critics of the draft law such as CCHC and ALEC find fault with what they describe as its overbroad language. Jennifer King, a legislative expert with ALEC, pointed to the following language as troublesome:

*The term "property" is not limited to just land and buildings on that land, but it also includes food, alcohol and even firearms, she said.

*A "public health emergency" can be declared not only for bioterrorism attacks, but also for epidemics, pandemic disease or natural disasters.

*The terms "epidemic disease," "pandemic disease" and "natural disaster" are not defined, leaving public health officials ample room for their own interpretation.

*There are no limits on the number or types of tests that can be performed on individuals, or on the bodily specimens that can be collected. DNA and genetic testing are not excluded.

'Due Process'

Gostin counters by insisting: "The prime responsibility of government should include a very careful attention to the health, safety and security of the population . "[I] have bent over backwards in writing the law to make sure that there was very careful attention to due process and checks and balances."

But Gostin's assertions have not mollified the critics, such as CCHC, which insists that due process could be trampled in the following examples:

*Although due process is allowed, the act permits state officials to identify and train personnel to serve as "emergency judges" to deal with citizen appeals of forced quarantine and isolation. Such training may be biased, said a spokesman for CCHC.

*Citizens are required to submit to medical examinations, vaccinations and quarantine against their will if a public health emergency is declared.

*Public health officials are given authority to "collect specimens and perform tests on any person" even if they are healthy with no history of exposure to disease.

*Health care professionals who refuse to provide forced medical examinations or vaccinations can be charged with a misdemeanor.

*Citizens who refuse to comply can be detained and charged with a misdemeanor.

*Police officers will be placed under the authority of health department officials.

But Gostin is quick to say: "This is not anything to do with military tribunals or anything like that - there's a lot of due process. So, for those who say that there's not enough civil liberties in it, I think the only thing I could say is that for most of the provisions, the civil liberties protections are far greater than that which exists under current law."

Some states, including Minnesota, are already considering enactment in 2002. The Illinois state legislature recently rejected a proposed bill modeled after Gostin's MEHPA.

Gostin forecasted that his model legislation would be considered in "virtually every state" when the new state legislative sessions begins this month.

He said his model was designed to be adapted by the states as needed, to update their statutes. The proposal is not intended to be one-size-fits-all, he added.

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