Police State : Emergency Health Powers Act


Richard Moore


The Model State Emergency Health Powers Act: 
An Assault on Civil Liberties in the Name of Homeland

by  Sue Blevins 
Heritage Lecture  #748 

June 10, 2002 |  

A number of people have asked me what health freedom could
possibly have to do with homeland security. Let me assure
you that there is a major connection. It's called the
Model State Emergency Health Powers Act. Those who have
heard of it are far outnumbered by those who have not.
And, as proposed, the Model State Emergency Health Powers
Act will impact our individual freedoms and civil
liberties for years to come.


In response to the tragedy of September 11, the U.S.
Department of Health and Human Services announced its
support for model legislation. The goal was to provide
federal funds to states to encourage the enactment of
legislation to prevent and detect bioterrorist attacks.
Drafted for the Centers for Disease Control by
academicians from the Center for Law and the Public's
Health at Georgetown and Johns Hopkins Universities, the
so-called Model State Emergency Health Powers Act was
released on October 23, 2001.

It is noteworthy that a key attorney who assisted in
drafting this proposal was also very involved in Hillary
Clinton's health care task force nearly a decade ago. It
is also significant that two articles related to this
proposal were published or prepared well before the Trade
Center attacks. In January 1999, in a Columbia Law Review
article, a plan was presented for changing public health
laws. A similar plan appeared in an American Journal of
Public Health article, published coincidentally in
September 2001, but accepted for publication in March

It appears that this model legislation--formulated long
before the terrorism of last fall--actually represents the
promotion and expansion of a long-standing agenda. As
these proposals come before the individual states, our
elected officials should be aware of this history and
examine carefully all proposals submitted to them.

Although this model legislation was recommended as a means
to help states protect citizens against bioterrorist
attacks and deal with national defense issues, the draft
bill goes much, much further. It calls for giving state
public health officials broad, new police powers--all in
the name of controlling epidemics of infectious diseases
during public health emergencies.

Furthermore, with an equally broad stroke, this model
legislation defines "infectious disease" as "a disease
caused by a living organism." As drafted, the October 23,
2001, proposal stresses that "an infectious disease may or
may not be transmissible from person to person, animal to
person or insect to person." Thus, any disease caused by a
living organism could be classified as an infectious
disease creating or invoking a public health emergency.

It is these broad definitions--painted with an overly
broad brush in equally broad language--that our state
officials and our state-based think tanks must be alerted
to, aware of, and involved in examining as similar bills
advance on state legislative agendas.

Key to all of this is what may or may not be considered or
defined as a "public health emergency."


Under this legislative proposal, once a public health
emergency is declared, governors and state public health
authorities would be granted greatly expanded police
powers. While a few other actions are enumerated, I want
to bring to your attention 10 main powers conveyed into
the hands of only a very few individuals by this model

Under the Model State Emergency Health Powers Act, upon
the declaration of a "public health emergency," governors
and public health officials would be empowered to:

    Force individuals suspected of harboring an "infectious
    disease" to undergo medical examinations.
    Track and share an individual's personal health
    information, including genetic information.
    Force persons to be vaccinated, treated, or quarantined
    for infectious diseases.
    Mandate that all health care providers report all cases of
    persons who harbor any illness or health condition that
    may be caused by an epidemic or an infectious agent and
    might pose a "substantial risk" to a "significant number
    of people or cause a long-term disability." (Note: Neither
    "substantial risk" nor "significant number" are defined in
    the draft.)
    Force pharmacists to report any unusual or any increased
    prescription rates that may be caused by epidemic
    Preempt existing state laws, rules and regulations,
    including those relating to privacy, medical licensure,
    and--this is key--property rights.
    Control public and private property during a public health
    emergency, including pharmaceutical manufacturing plants,
    nursing homes, other health care facilities, and
    communications devices.
    Mobilize all or any part of the "organized militia into
    service to the state to help enforce the state's orders."
    Ration firearms, explosives, food, fuel and alcoholic
    beverages, among other commodities.
    Impose fines and penalties to enforce their orders.

As you can imagine, citizens across the country--at least
the ones who were informed about it--were quite concerned
about this model legislation. The American Legislative
Exchange Council and other groups immediately began
tracking the issue and reporting on how such legislation
could affect citizens' individual freedoms and property
rights. As Time magazine recently reported, gun activists
were some of the strongest and most influential opponents.

Consequently, a revised model bill was released on
December 21, 2001. Both models--which the states are using
in formulating legislation--are on line at
www.publichealthlaw.net. I encourage you to read them.

In an attempt to make the October draft appear less
authoritarian, several words were changed in the December
draft. For example, the revised language calls for
"protecting" persons rather than "controlling" persons
during a public health emergency. It says that the state
would "manage" private property rather than "control"
private property during a public health emergency. And it
removes any direct mention of rationing firearms or
alcoholic beverages but still retains the right to ration
"other commodities," which clearly could be interpreted to
include guns and alcoholic beverages--or many other items
for that matter.

The revised model bill also contained two major changes.
For those who may have been concerned initially about the
new police powers granted, the revised text actually
broadens them to include local governments as well as
state officials. Furthermore, the revised language
incorporates powers over medical licensing laws. Thus,
health care facilities, doctors, and other providers will
have to abide by added licensure requirements during a
public health emergency to maintain or guarantee their
right to practice medicine or run a health care business.


How this medical licensure clause would affect doctors'
freedom of conscience--and medical freedom for us
all--must be scrutinized.

The state of Maryland's draft bill--one of the worst in
the country, in my opinion--includes this language: "If
the health care practitioner fails to comply with an
order, regulation or directive, the secretary may request
the appropriate licensing board to take disciplinary
action against the health care practitioner." It goes on
to authorize the imposition of fines of up to $10,000 for
each offense.

What does this mean in practicality?

First, it means that a doctor, who might be opposed to
abortion, would be forced by law during a public health
emergency to administer a vaccine derived from fetal
tissue. This legislation lays the groundwork for such a
provision, and it clearly and absolutely infringes on
doctors' and other health care providers' freedom of

Second, it means each of us as individuals is affected.
Patients would not be able to refuse these treatments.
Whether state exemptions--those granted for religious or
philosophical reasons regarding selected vaccines or types
of treatments--would remain in effect or not remains
unclear. This legislation fails to clarify that such
exemptions will not be overridden.


According to the American Legislative Exchange Council, 24
states have actually introduced versions of the Model
State Emergency Health Powers Act. On their Web site--
www.alec.org --a color-coded map, showing the status of
this legislation in all 50 states, is maintained.
According to their data, three states--New Mexico, South
Dakota, and Utah--have passed legislation. Four
states--Idaho, Washington, Wisconsin, and Wyoming--have
either inactivated or defeated this legislation. 1

Clearly this legislation is being considered by a
significant number of states across the country. It is our
duty in the public policy community to help educate,
inform, and alert both our state officials and state-based
think tank leaders to the challenge to our freedoms and
liberties this extreme model legislation will have for
years to come.

I truly hope our national leaders will reconsider the
coercive provisions of this Model State Emergency Health
Powers Act. We can and must find a better way to defend
citizens against bioterrorism while protecting our
precious individual freedoms--the very freedoms that this
current war on terror is being waged to defend.

As a gentleman reminded me recently, "You can't defend
freedom by eliminating it." I believe--and believe it
should be evident to you--that this model plan, if enacted
throughout the states, would indeed do just that:
eliminate our freedom to choose our medical care and
health treatment and potentially eliminate a broader range
of our basic civil liberties.

Sue Blevins is President of the Institute for Health
Freedom. Her remarks were delivered at the 25th Annual
Resource Bank Meeting in Philadelphia, Pennsylvania.

1. Since these remarks were delivered, additional states
have acted on this legislation. The ALEC Web site should
be consulted for the most current status report.

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