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Tell your state legislator to scrutinize MEHPA

By James Frogue
web posted June 17, 2002

Editor's Note: In his 11/19/01 commentary, "Another Conservative Gone Native," Paul M. Weyrich, President of the Free Congress Foundation, warned that the Model State Emergency Health Powers Act poses a serious threat to our liberties. MEHPA is now winding its way through state legislatures. This commentary by James Frogue, Director of the Health & Human Services Task Force at the American Legislative Exchange Council, makes clear that MEHPA remains cause for serious concern, particularly for advocates of privacy and civil liberties. America's worst nightmare is no longer a sensational Hollywood movie plot.

The threat of a biological or nuclear terrorist attack is serious and our nation's leaders are vigilantly doing what they can to thwart such a disaster. In these uncertain times, in fact, several states are considering legislation, just in case the next evil terrorist shoe to drop is biological or nuclear. For this our state legislatures should be applauded, but, there are also grave concerns about one so-called "public health" proposal and how it threatens the very value we seek to protect - liberty.

This proposal, the Centers for Disease Control's Model Emergency Health Powers Act, or MEHPA, was first presented for public consumption in October 2001. Its main author was Georgetown law professor Lawrence Gostin, a leading member of Hillary Clinton's health care task force in 1993 and 1994.

Much like that failed effort, this one also presents a vast government power grab. Indeed, everyone from social conservatives, to AIDS activists, to Second Amendment supporters is united in opposition. A revised and slightly toned down version appeared in December. It remains overkill.

The CDC sponsored MEHPA bill allows governors to unilaterally declare a public health emergency in their state for a full 60 days. Only after that time would even the state legislature have the power to intervene and end that state of emergency by majority vote in both chambers. This much power in the hands of one person is disturbing enough, but it gets worse when one considers the powers that go along with it.

Following the governor's declaration, non-elected state health officials assume broad powers to seize property, share your private health information, quarantine individuals suspected of being infected, ration goods and services, compel mass vaccinations, and even assume control over state and local police. In theory, even minimum wage nursing home attendants and the county dogcatcher could be empowered in this manner. The potential for blunder borne out of incompetence is enormous, not to mention the potential for willful abuse. Just how far these powers would extend deserves close scrutiny and hard questions.

The medical community and business owners also have much to fear. Under a declared state of emergency, hospitals could be procured, "by condemnation or otherwise," by anyone who meets whatever constitutes a public health authority. The owner of a fleet of trucks, for example, could have his property expropriated without compensation to transport infected people, animals, or waste. Private homes or businesses could be walled off as quarantine locations. And there is not a thing anyone could do about it for 60 days.

Ten states have enacted legislation thus far, and fortunately the most troubling aspects of the CDC model bill are not common in final products. New Hampshire for example is about to enact a bill. But it does not compel vaccinations, allows choice in location for the quarantined, and provides for judicial review. The law also sunsets in 2004 forcing legislators and the Governor to revisit the issues.

Maryland is one exception however. Governor Glendening vetoed two MEHPA bills passed by the legislature, but signed two egregious cross-filed versions. Both allow public health officials to violate property rights by authorizing inspections and seizures of buildings without compensation.

Broad sweeping quarantine measures can be undertaken without confirmation of a biological, chemical, or nuclear contamination. Furthermore, any item or material needed to respond to medical emergencies can be rationed, stockpiled, put under a quota system, price controlled, or shipments of such material can be prohibited.

It is important to note that not all states have introduced the MEHPA bill as is. But the fact that the taxpayer funded CDC sponsored model legislation contains such sweeping powers is cause for deep concern. Every state legislator sworn to uphold the Constitution and all citizens concerned about their liberties should carefully scrutinize every last word of the legislation being considered in their state.

James Frogue is Director of the Health & Human Services Task Force at the American Legislative Exchange Council.

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