Model State Emergency Health Powers Act
Q&A On the Model State Emergency Health Powers Act
What is MSEHPA?
MEHPA
stands for "Model State Emergency Health Powers Act." It is a draft of
model legislation to increase state powers to respond to bioterrorism
or other outbreaks of disease that the Centers for Disease Control and
others want the states to pass into law. Although such legislation is
needed, the current draft of the Model Act unfortunately is written in a
way that doesn't adequately protect citizens against the misuse of the
tremendous powers that it would grant in an emergency.
What is wrong with MSEHPA?
Although
extraordinary measures may be required during an emergency, the Model
Act is replete with civil liberties problems. Its three top flaws are
that:
- It fails to include basic checks and balances. The Act would grant extraordinary emergency powers, but that kind of authority should never go unchecked. Public health authorities make mistakes, and politicians abuse their powers; there is a history of discriminatory use of the quarantine power against particular groups of people based on race and national origin, for example. The lack of checks and balances could have serious consequences for individuals' freedom, privacy, and equality. The Act lets a governor declare a state of emergency unilaterally and without judicial oversight, fails to provide modern due process procedures for quarantine and other emergency powers, it lacks adequate compensation for seizure of assets, and contains no checks on the power to order forced treatment and vaccination.
- It goes well beyond bioterrorism. The act includes an overbroad definition of "public health emergency" that sweeps in HIV, AIDS, and other diseases that clearly do not justify quarantine, forced treatment, or any of the other broad emergency authorities that would be granted under the Act.
- It lacks privacy protections. The Act requires the disclosure of massive amounts of personally identifiable health information to public health authorities, without requiring basic privacy protections and fair information practices that could easily be added to the bill without detracting from its effectiveness in quelling an outbreak. And the Model Act would undercut existing protections for sensitive medical information. That not only threatens to violate individuals' medical privacy but undermines public trust in government activities.
The
act is a throwback to a time before the legal system recognized basic
protections for fairness; before public health strategies were rooted in
voluntary compliance; and before the information age dictated the need
for privacy protections of individuals' personal information.
What is the status of the MSEHPA?
Professor
Gostin released a second draft of the act in December 2001. It is
unclear if this will be the final proposal or a second draft. But the
existing draft has been distributed by the Federal government and is
being considered in various states around the country. Since October,
some governors and state legislators have already called for adoption of
the Model Act (for example in Massachusetts, Minnesota, California, New
York, Illinois, and Nevada). Given the perceived urgency of the issue,
it is likely that many states will consider the Model Act or some other
bioterrorism legislation or regulation in the next few months.
Where did the Model Act come from?
The
terrroist attacks on September 11 led to growing concern about the
possible threat of biological terrorism and the ability of the
government to respond effectively to such threats at the federal, state,
and local level. MSEHPA was released in October as part of the federal
government's response to the threat of bioterrorism. MSEHPA is model
legislation that would be passed by the states to increase their
emergency public health powers. The Model Act was funded through a
grant from the Centers for Disease Control and Prevention ("CDC") and
written by Professor Larry Gostin, Co-Director of the Center for Law and
the Public's Health at Georgetown and Johns Hopkins Universities.
Aren't strong public health powers needed?
Yes.
The threat of bioterrorism is of serious concern to each and every one
of us, and the government has a responsibility to prevent and respond to
incidents of bioterrorism that could have serious and deadly
consequences. Bioterrorism or naturally occurring epidemics warrant
extraordinary government action to protect the public health. And the
CDC and the drafters of the this model legislation are correct that
public health law must be modernized in the face of today's terrorist
threats, and that the law needs to be clear about the extent and
boundaries of the government's powers in times of crisis.
Unfortunately, MSEHPA is not confined to achieving those goals.
Is anyone else complaining about the MSEHPA?
The
ACLU is not alone in its concern about the legislation. There is
opposition to the Model Act from organizations on both the right and
left of the political spectrum. The conservative Free Congress
Foundation, and the American Legislative Exchange Council, the
conservative association of state legislators, have both opposed the
draft of the Model Act. The Human Rights Campaign and the Health Privacy
Project have also raised concerns about the legislation.
Other Resources- Map showing status of MSEHPA in the states - American Legislative Exchange Council
- Health Privacy Project comments on first draft of MSEHPA
- Letter on MSEHPA by the Human Rights Campaign
- Analysis of MSEHPA by the Association of American Physicians and Surgeons
- 02/05/1998 -- ACLU Warns Congress on HIV Testing and Name Reporting
- 12/18/1997 -- ACLU Lauds Maryland's HIV Tracking System
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