Prescription for Tyranny: Under the Guise of Dealing with Health Emergencies, Proposed Legislation Would Grant States Totalitarian Powers While Actually Hurting State Sovereignty. (Health Care)

Article excerpt

A dangerous new epidemic is incubating in Washington and in state legislatures nationwide, courtesy of the war on terrorism. No, it isn't anthrax or smallpox or bubonic plague or some other deadly germ brewed by bioterrorists. It's a new push, instigated by the Centers for Disease Control (CDC), to toughen state emergency health powers" laws to enable governors, in conjunction with federal authorities, to exercise police-state powers in the event of another episode of bioterrorism, or even a natural epidemic.

Against the backdrop of September 11th's eye-searing drama, the subsequent anthrax attacks on Capitol Hill and the major news media seemed inconspicuous, considering their low infection rate and even lower death toll. Yet with federal authorities now pushing aggressively for new state-level enforcement powers -- including draconian powers to round up, quarantine, and forcibly test and vaccinate citizens in the event of an outbreak of smallpox or some other dangerous disease -- the anthrax episode may yet profoundly affect the American political landscape.

From Disease Control to People Control

On October 30, 2001, the CDC released the Model State Emergency Health Powers Act (MEHPA) and disseminated copies of the act to legislators in all 50 states. At the time, Secretary of Health and Human Services Tommy Thompson praised the model legislation as "an important tool for state and local officials to respond to bioterrorism and other public health emergencies." But the MERPA soon attracted attention from critics, and for good reason: Prepared by the Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities, the model legislation was an undisguised recipe for state-level tyranny.

The original draft of the MEHPA authorizes governors to declare states of emergency, which legislatures may not challenge for 60 days. During such a period, according to the terms of Article IV (subtitled "Control of Property"), the state may confiscate any private property, "includ[ing] but not limited to, communication devices, carriers, real estate, fuels, food, clothing, and health care facilities." Additionally, the state is given blanket authority to ration, control, or prohibit the sale or use of "food, fuel, clothing and other commodities, alcoholic beverages, firearms, explosives, and combustibles."

Nor is that the worst of it. Article V, subtitled "Control of Persons," would grant state governments the emergency power "to compel a person to submit to a physical examination and or testing," to "require any physician or other health care provider to perform the medical examination," and to forcibly quarantine any individuals deemed potential disease carriers or refusing to submit to tests. The proposed legislation makes a feeble concession to "due process," requiring a court order to quarantine any individual, but then nullifies the provision by permitting health authorities to quarantine without a court order any time that "delay in the isolation or quarantine of the person would pose an immediate threat to the public health."

After the model law drew negative attention, the CDC came out with a revised version in late December, a kinder, gentler program that delicately struck out overt references to firearms confiscation and changed "control of persons" to "protection of persons" -- while keeping intact vague language from which unlimited police powers can still be inferred.

Alarmingly, the MEHPA is already popping up in state legislatures across the country, generally reproduced verbatim from the CDC original, except for cosmetic references to state law and facilities. For example, the legislatures of Pennsylvania, New York, and Illinois are all considering "Emergency Health Powers" acts, faithful reproductions of the October 30th original, complete with references to firearms controls and "control" of persons. Many other states, including Tennessee, Nebraska, Delaware, and California, have introduced "Emergency Health Powers" acts identical to the December draft of the MEHPA, or are designing their own legislation to conform to MEHPA standards. …