Safeguarding the public's health, safety, and security took on new meaning and urgency after the attacks on the World Trade Towers in New York and the Pentagon in Washington, D.C., on September 11, 2001. The subsequent intentional dispersal of anthrax through the U.S. postal system resulted in five confirmed deaths, hundreds treated, and thousands tested. The potential for new, larger, and more sophisticated attacks have created a sense of vulnerability. National attention has urgently turned to the need to detect and react rapidly to bioterrorism as well as to naturally occurring infectious diseases.
In the aftermath of September 11, the President and the Congress began a process to strengthen the public health infrastructure. The Center for Law and the Public's Health (CLPH) at Georgetown and Johns Hopkins Universities drafted the Model State Emergency Health Powers Act (MSEHPA or the "Model Act") at the request of the Centers for Disease Control and Prevention and in collaboration with members of national organizations representing governors, legislators, attorneys general, and health commissioners. Legislative bills based on the MSEHPA have been introduced in more than thirty-five states; twenty states have enacted a version of the Act, and additional states will be considering the Act in upcoming legislative sessions.
Despite its success in many states, the Model Act has become a lightning rod for criticism from both ends of the political spectrum. Civil libertarians object to the diminution of personal freedoms and conservatives object to the diminution of free enterprise and property rights. In short, the Model Act has galvanized public debate around the appropriate balance between personal rights and common goods. In this Commentary, I defend the Model Act, demonstrating that it appropriately creates strong public health powers, while safeguarding individual freedoms. America prizes personal liberty and free enterprise, but we also need to recapture a lost communitarian tradition that stresses the importance of health, safety, and well-being for the population.
The Inadequacy of Existing Public Health Legislation
Critics attack MSEHPA as if it had been proposed in a regulatory vacuum. Yet public health is practiced under a voluminous set of laws and regulations. The issue is not whether the Model Act provides an ideal solution to perennially complex problems, for no law can resolve all the conflicts between public health and civil liberties. Rather, the issue is whether the Model Act does a significantly better job than existing legislation. Existing state public health law is obsolete, fragmented, and inadequate; it does not support, and even thwarts, effective public health surveillance and interventions.
Public health legislation is so old that it tells the story of communicable diseases through time, with new layers of regulation with each page in history--from plague and smallpox, to tuberculosis and polio, and now HIV/AIDS and West Nile virus. Many laws have not been systematically updated since the early-to-mid-twentieth century. State laws predate modern public health science and practice, as well as advances in constitutional law and civil liberties.
Public health laws are inconsistent within states and among them. Within states, different rules apply depending on the particular disease in question. Laws are also inconsistent among states, leading to profound variation. A certain level of consistency is important in public health because infectious diseases are usually regional or national in nature, thus requiring a coordinated approach to surveillance and control.
Many current laws fail to provide necessary authority for each of the key elements for public health preparedness: planning, coordination, surveillance, management of property, and protection of persons. States have not devised clear methods of planning, communication, and coordination among the various levels of government (federal, state, tribal, and local), the responsible agencies (public health, law enforcement, and emergency management), and the private sector (food, transportation, and health care). …