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. For more
information: http://www.alec.org

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