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.
A HIDDEN AGENDA
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,
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 2001.
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
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
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
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
to all of this is what may or may not be considered or defined as a
"public health emergency."
A THREAT TO FUNDAMENTAL RIGHTS
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 plan.
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
- 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
- Mobilize all or any part of the "organized
militia into service to the state to help enforce the state's
- Ration firearms, explosives, food, fuel
and alcoholic beverages, among other commodities.
- Impose fines and penalties to enforce
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.
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.
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.
A DENIAL OF CONSCIENCE
this medical licensure clause would affect doctors' freedom of
conscience--and medical freedom for us all--must be
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.
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 conscience.
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
RECENT STATE ACTIVITY
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----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.
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.
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
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,