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Last Updated

17 Jun 2003

Source: Wall Street Journal, January 7, 2002.

Politics & Policy

Governors Seek Broad Emergency Powers, But Model Law Raises Civil-Liberties Issues


State by state, a new battleground is emerging in the struggle to balance communities' safety with individual liberties: A model law giving governors the power to order quarantines, restrict residents' movement and ration medical supplies during public-health emergencies.

As many as a dozen state legislatures, from Massachusetts to Minnesota to California, are likely this year to debate bills that are based on the model developed for the federal Centers for Disease Control and Prevention.

The post-anthrax goal is to strengthen state authorities to cope with a serious bioterrorism attack. But the powers could be used in other emergencies -- natural disasters, outbreaks of dangerous flu or viral strains, and chemical or nuclear attacks.

Under the most recent draft of the model legislation, governors could declare a public-health emergency in their states when an "imminent threat" of illness seems likely to cause many deaths or serious disabilities. In that event, governors could authorize quarantines, take over hospitals and control supplies of food and drugs.

Under the proposed legislation, people who refuse medical examinations or treatment could be held in isolation. Government and law-enforcement agencies would have freer access to private medical information.

But the movement is, in turn, igniting concerns among civil libertarians and privacy advocates. They argue that the result could be unwarranted government coercion of people to undergo medical treatment, inappropriate confinement of innocent people and unnecessary disclosure of personal medical records.

The model law "puts the lives of an entire state in the hands of one person who may or may not rise to the occasion," says Jonathan Turley, a law professor at George Washington University. "A state may be cursed with some dimwit."

Mr. Turley is especially concerned about a provision that, he says, would give governors "unchecked power" in the first 60 days of a crisis. State laws already give governors the power to deal with crises, he maintains.

Also critical of the effort is the American Legislative Exchange Council, a group of about 2,400 state legislators dedicated to free markets and individual freedom; it counts Tommy Thompson, the Health and Human Services Department secretary and longtime Wisconsin governor, as a former member. "We're talking about limiting firearms and property, taking clothing and livestock. This is not about protecting the public health," says Sandy Liddy Bourne, who oversees the issue for the group.

Defenders of the effort say many states have outdated or confusing emergency public-health laws. Under Minnesota's existing laws, for example, "someone with smallpox could walk out of the hospital and nobody could do anything about it," says Tom Huntley, a Democrat in the state House who is sponsoring a version of the model act.

Under the model law, if smallpox appeared in a community, the governor could declare an emergency and trigger a series of responses. Health workers would likely be dispatched to vaccinate family members and others who had contact with infected people. If many residents were sick, the government could take over hospitals to conduct examinations and treatments, and commandeer hotels for quarantines of those who might have been exposed.

Lawrence Gostin, the head writer of the model act and director of the Center for Law and the Public's Health at Georgetown University, says he is sensitive to concerns about civil liberties but that a balance must be struck: "You do have to face hard trade-offs between civil liberties and property rights of individuals against the collective rights of society," he says. "We do need to give up a little bit."

Before the Sept. 11 attacks and the subsequent anthrax deaths, "nobody was interested in public-health law reform," says Mr. Gostin. Afterward, officials scrambled to prepare for potential terrorist threats. Public-health experts worried especially that weaknesses in the current system might make it hard to identify a biological attack, and then to respond appropriately.

As it happened, Mr. Gostin and his colleagues at the Georgetown University law center already were working on a CDC effort to develop consistent public-health laws across states, to deal with more day-to-day health concerns, such as the tracking and reporting of conventional diseases. When October brought the threat of anthrax spreading through the mail, CDC officials asked Mr. Gostin to spend two weeks writing a model state law to define needed powers in a health emergency. State governors were "clamoring" for guidance, he says, and by the month's end they each had a draft law in hand.

Since then, the Bush administration has spread the word to states about the need to change their laws. Mr. Thompson quickly endorsed the first draft in a news release. Soon, acting Massachusetts Gov. Jane Swift was pushing a version in her state. That first draft "took on a life of its own," says Joy Wilson, director of the health committee at the National Conference of State Legislatures. "Some people thought that it was a finished product."

But the initial version had problems. The definition of a public-health emergency included "epidemic diseases," provoking concern among AIDS activists that AIDS patients might be subjected to isolation. The first model act also threatened misdemeanor charges for people who refuse medical treatment.

The newer draft of the model act, released last month, narrows the definition of a public-health emergency so it doesn't apply to known epidemics such as AIDS. The draft also allows people to refuse medical treatment for religious or other reasons, though it warns they may be subject to isolation if they do so.

The revised version makes other changes, but hasn't quelled all the criticism. Ms. Wilson says her association for state legislators would like state legislatures to have a more prominent role during a health crisis. States should examine laws already on their books, she adds, before dropping the new one onto the existing mix. For his part, Mr. Gostin says the model act allows legislatures to override the governor with a majority vote.

Janlori Goldman, of Georgetown's Health Privacy Project, worries that much has gone unaddressed in the model act, such as the need for privacy safeguards so that personal health information doesn't fall into the wrong hands. She is organizing a meeting for the end of this month at which public health officials, privacy advocates, legislators and others can hash out concerns.

Supporters of the act "assume civil-liberty and privacy issues will be dealt with elsewhere or in practice," she says, but protections should be built into the law.