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Edward P. Richards, J.D., M.P.H., Director of the Program in Law, Science,
and Public Health
Katharine C. Rathbun, M.D., M.P.H., LSU School of
Medicine
Direct comments and requests for materials to:
richards@lsu.edu
For more information, https://biotech.law.lsu.edu/cphl/
It has often been said that crisis brings out the best and the worst in
people. The same is true of legislatures. The events of 9/11 led to welcome
bipartisanship in Congress and state houses. Unfortunately, 9/11 is also
fueling a "do something" mentality which is encouraging legislatures to pass
laws without a clear understanding of their implications for individual liberty
or national security. The proposed Model State Emergency Health Powers Act will
not improve day to day public health practice or the response to bioterrorism.
In fact, it may make such responses more difficult by undermining confidence in
public health agencies and by disrupting the complex web of existing state
public health and emergency preparedness laws. Legislatures considering this
Act should turn their attention to incremental public health law reforms for
specific problems faced by their states and to the much more important problem
of improving public health and public health law practice.
This is a proposed model law, primarily written by academics at the Center
for Law and the Public's Health, a federally funded project at Georgetown and
Johns Hopkins Universities. It was done as a response to concerns about
bioterrorism raised by the events of 9/11. (MSEHPA - Version
1, Version 2) The
act is based on the assumption that existing state laws are wholly inadequate
to
confront
a bioterrorism
event
and should be superseded by a comprehensive act which will override any
conflicting state laws. While the Center for Law and the Public's Health is
relatively new, the main academics behind it have been AIDS law activists since
the 1980s. From the mid-1980s until 9/11, the primary focus of this research
group has been to repeal traditional public health laws and substitute civil
rights style laws which significantly reduce the authority of public health
officials. Ironically, many of the problems that the MSEHPA claims to remedy
stem from the public health law "reforms" passed in the 1980s and
1990s.
The central argument put forward for the MSEHPA and other model laws such
as the Turning Point Model Public Health Law is that public health laws are
outdated and would not be upheld in modern courts. The assumption that state
public health laws drafted 50, 100, or even more years ago cannot be useful in
the modern world is at the core of the Centers for Disease Control funding for
public health law research and most of the funding provided by private
foundations. This argument started in the AIDS law projects in the 1980s as a
way to prevent states from applying traditional public health measures such as
named reporting and contact tracing to HIV/AIDS. Professor Gostin, the main
drafter of the MSEHPA, led the opposition personally when the Colorado
legislature was considering the nations first HIV named reporting law, proposed
by Dr. Tomas Vernon, then President of the Association of State and Territorial
Health Officers.[1]
In answer to the claim that such laws were outdated and unconstitutional,
Professor Richards did a comprehensive review of public health law jurisprudence
from the Colonial period to 1989. When the review was
published,[2] two things were clear:
1) the courts were not overruling old public health law cases; and 2) the courts
were taking old public health doctrine and expanding it rather than backing away
from it. In a series of cases the United States Supreme Court applied
traditional public health law theory in then new situations such as preventive
detention for criminal conduct. The past 14 years have seen the court move much
more strongly in this direction. In a prominent example, the Court used the
1905 smallpox vaccination law case[3]
as precedent for upholding sexual predator
laws.[4] Most recently, the court
used preventive jurisprudence to uphold Megan's Law cases that required the
community identification of persons convicted of sex-related
crimes.[5]
The Homeland Security Act and related post-9/11 legislation embodies the
same prevention jurisprudence as does the earliest public health cases. Whether
one agrees with the increasing willingness of the courts to allow significant
infringement of individual rights in the name of national security, it is clear
that these courts have no problems upholding traditional public health
laws.
The Model State Emergency Health Powers Act ignores a key fact: judges will
not stand in the way of emergency actions taken to protect the public from a
clear and present danger, and if they do, the state appeals court will over turn
their rulings in a matter of hours. From the Colonial period until today, the
history of judicial restraint on emergency powers is one of blind obedience to
civil and military authority, not one of necessary actions thwarted by overly
particular jurists. It is inconceivable that the courts would stand in the way
of actions to control a major public health threat such as a smallpox outbreak,
even if the state was clearly stepping beyond its statutory powers. Even the
Japanese interment during World War II, which is universally recognized as
unjustified from a historical perspective, was upheld as a valid public health
and safety action.[6] This case has
never been overruled and is still precedent, because the court recognizes that
hindsight is always keener than foresight when judging preventive actions. This
reality makes the Model State Emergency Health Powers Act unnecessary in a true
emergency and unjustifiably broad as a response to non-emergency
situations.
This deference to state power to protect the public health and safety is
well-grounded constitutionally.[7]
The Constitution gives the primary power to protect public health and safety -
the police power - to the states. The intent was clear because communicable
disease control and Draconian public health actions were important issues in the
colonies. The constitutional convention was almost disrupted by a yellow fever
epidemic.[8] Thus it is clear that
the states have the power.
Secondly, public health law is a part of the legal field known as
administrative law. Administrative law principles recognize the balance between
individual and societal rights that is at the heart of public health law.
Whether it is the balancing of process versus accuracy in Matthews v.
Eldridge,[9] or the right to private
information for public purposes in Whalen v.
Roe,[10] the United States Supreme
Court is very clear that individual liberties must be weighed against the public
good: "...while the Constitution protects against invasions of individual
rights, it is not a suicide
pact.[11]" This is reflected in the
state and federal public health and safety cases back to the colonial period.
The case law makes it clear that the role of the court is very limited in public
health determinations and that the court is not to act as an arbiter of best
public health
practices.[12]
Administrative law is based on the principle that agencies need flexibility
in the enforcement of laws.[13] This
is especially true in public health where a central function of public health
agencies is to deal with the unexpected. Agencies have no flexibility if their
enabling statute does not give them sufficient power. However, given the broad
discretion the courts accord to public health agencies, the traditional vague
and general public health statutes are nearly always construed as providing
whatever powers are necessary for the agency's actions in meeting emergencies.
In almost all cases where state agencies responding to threats are found to have
insufficient power it is because the legislature has either over specified the
agencies duties and responsibilities or taken the power away from the agency by
specific legislation. Such specifications limit the agency powers and often
force the agency to do things that do not make good public health sense. We saw
this in the 1980s and early 1990s when many states "reformed" their public
health laws in response to individual liberties activists and did take necessary
powers away from their public health agencies. Ironically, it is some of these
laws, passed with the support given by governmental public health research
money, that pose the greatest problems for routine disease control and for
dealing with potential bioterrorism incidents.
Public health agencies should operate under broad general grants of
authority, with legislative budgetary processes and executive branch direction
establishing their priorities. These general powers can be fleshed out with
administrative regulations, with every state having a notice and comment process
analogous to the Federal Register/Code of Federal Regulation. In general,
highly detailed model laws, such as the Turning Point Model Public Health Law,
and the Model State Emergency Health Powers Act, limit necessary agency
flexibility and constrain agencies in ways that are detrimental to the public
health. These model acts, and the others that have been proposed based on
federal government funded public health law projects, represent very specific
attacks on public health powers through raising the administrative cost of
public health enforcement through increasing due process requirements well
beyond those imposed by the state and federal constitutions.
Model acts are very important in areas that involve national and
international commerce. Thus the Uniform Commercial Code and other model acts
have been essential to the development of our national economy. Model acts are
not a good approach when the problems are local and do not involve fungible
economic goods or commerce. If these areas need uniform legislation, it is most
appropriately done by Congress. Constitutionally, public health is the most
state and locality specific area of law. It is part of a complex matrix of
state laws that differ greatly from state to state. Changing bits of these laws
can have profound unintended consequences.
Understanding these laws requires a careful analysis of an entire state's
regulatory and political system - the same statute can have profoundly different
meanings in Louisiana, Oregon, and New York. Yet the CDC and other government
sources have repeatedly funded superficial surveys of state laws, as if they
could be averaged to come up with a "best" law. These surveys provide no
legitimate information about the function of law and have been misused to
support political positions such as the often repeated claim that state public
health departments do not have enough power to respond to emergencies.
The use of administrative regulations and guidelines, which are subject to
public comment and review, is more democratic and leads to better regulations
than detailed statutes because they can be better tailored to the specific needs
of the state. Most importantly, administrative regulations can be modified as
agencies gain more knowledge about public health threats. Detailed statutory
schemes have two dangerous flaws. First, they are difficult to change,
especially once the legislature loses it interest in bioterrorism. Second, it
is impossible to predict the collateral effects of enacting a hastily drafted
statute and all the expected amendments that will creep in during the
legislative process. The likely result is a law that weakens public health
practice and muddles state authority, but will be very difficult to
change.
This administrative law approach, with agencies fleshing out broad
statutory authority with regulations is why 100 year old laws can work, just as
a 200+ year old Constitution still works. The key to this process is that the
courts defer to administrative decisionmakers when they are operating under
broad grants of authority. This process is derided by some academics as being
too vague and no longer constitutionally adequate, but it has been strongly
endorsed by the United States Supreme Court and all state supreme courts. Thus
a traditional state law establishing a health department might say little more
than that the department was empowered to protect the public health. As long as
the actions taken by the health agency are rationally related to protecting the
public health they will be upheld by the courts. Since public health agencies
are subject to political controls, they are unlikely to greatly overstep the
bounds of acceptable regulation.
The most serious flaw in the Model State Emergency Health Powers Act is
that it ignores the diversity of state government structures and state
constitutional law. It also assumes that the states have no emergency
preparedness laws or procedures. When the Nebraska legislature was considering
this law, the state emergency preparedness director pointed out that Nebraska,
as with all other states, had passed detailed emergency preparedness laws in the
mid-1990s as part of a federal mandate. These laws give the states both the
necessary powers and the organization to carry them out, but in a legally
responsible way. Rather than overriding existing state laws, the emergency
preparedness laws attempt to co-exist with them. This is critical because
public health law, more than any other area of law, is a creature of individual
state history, state constitutional provisions, court precedent, and the state's
physical and political environment. It is seldom codified in a single place,
but usually is spread through many different parts of the state law and
constitution.
The Model State Emergency Health Powers Act cuts across all these
interlocking laws and traditions and will have unpredictable consequences,
including generating state and federal constitutional law problems which may
ultimately disrupt public health law practice. It is especially troubling that
the Act attempts to specify where the ultimate state authority should lie for
specific public safety concerns, which will encourage conflicts in authority,
rather than clarify it. The MSEHPA also abolishes the long term checks and
balances developed by state courts and political institutions that serve to keep
public health agencies from abusing their broad powers. This led Professor
George Annas, a leading authority on medical law and ethics and the legal editor
of the New England Journal of Medicine, to write:
"All sorts of proposals were floated in the wake of the September 11
attacks — some potentially useful, such as irradiation of mail at the
facilities that had been targeted, and some potentially dangerous, such as the
use of secret military tribunals and measures that would erode
lawyer–client confidentiality, undermine our constitutional values, and
make us less able to criticize authoritarian countries for similar behavior. I
think the Model State Emergency Health Powers Act is one of the dangerous
proposals."[14]
The fundamental problem with our response to bioterrorism is not inadequate
legal authority. It is that health departments do not have adequate political
and economic support. One consequence of this lack of public support is that
many health department positions, from directors to the front-line inspectors,
are staffed by individuals who are not properly trained and do not have adequate
experience in public health practice. This was documented in the IOM report,
The Future of Public Health, in 1988 and all indications are that the skills of
public health departments have not improved since that report. The inability to
respond to a bioterrorism threat is just an extreme example of the general
inability to respond to public health threats ranging from food borne illness to
emerging infectious diseases and the growing threat that antimicrobial
resistance will reverse much of our progress in conquering infectious
diseases.
The major legal problem is the dearth of skilled public health law
practitioners and an informed judiciary, not that existing public health laws
provide inadequate authority. There are instances where state laws do need to
be strengthened. In most cases, even these states had adequate authority in
1960 to manage any public health threat. They lost the authority in the 1980s
and 1990s as legislatures responded to pressure by civil libertarians to limit
the state's right to collect information about communicable diseases and to
impose personal restrictions without lengthy and costly legal proceedings which
shift decisionmaking from public health professionals to judges. Most state
public health laws and constitutions provide enough power to deal with
bioterrorism and other public health threats, if the existing laws are used
appropriately by skilled practitioners who have the trust of their
communities.
Each state should develop a plan to coordinate emergency services
personnel, the National Guard, and public health departments to respond to major
public health threats. These may be due to bioterrorism or more mundane threats
such as chlorination failure in a municipal water treatment system or the
arrival of an international traveler with a serious communicable disease. Most
states have already made significant progress with such plans as they apply to
other emergencies and natural disasters. What is missing from most of these
plans is an honest appraisal of the resources necessary to carry out large scale
actions. The smallpox vaccine program provides a good example of the
problem.
Even the relatively small scale roll out of the smallpox vaccine for health
care workers has overtaxed many health departments, and the failure to
anticipate practical problems such as compensation for injuries has caused
health care workers to refuse vaccination. The CDC's proposed plans for
managing a smallpox outbreak, which most states are adopting, are very
simplistic and ignore problems such as controlling access to health care
facilities, the impracticability of having large numbers of persons come to
central vaccination sites rather than having health care workers go into the
community, and the provision of food and medical services to persons who are
asked to quarantine themselves at home. Trying to enforce these unsound plans
with a Draconian law is impossible and may lead to large scale civil
disobedience. It is much more important to develop realistic contingency plans
that the public will accept than to adopt the MSEHPA in the hopes that bad
public health planning can be enforced at the point of a gun.
If there are things the state believes that it cannot do under its existing
laws, it should seek advice from lawyers who are expert in dealing with state
agency laws, rather than personal liberties law experts. The best source would
be administrative law practitioners in top business law firms who could assess
whether the state really needs to revise its laws and how it can do so in the
least disruptive way. Whenever possible, this should be done through
administrative regulation and executive orders, which provide more flexible
responses than statutes.
Each state should start a longer range process to study the structure and
staffing of public health departments to assure adequate expertise and training
of all key personnel and, as much as possible, to replace political appointees
with skilled public health professionals, especially physicians who are
certified public health specialists.
Each state should begin the process of studying its public health laws by
working with public health practitioners to find areas where there is inadequate
authority or conflicting mandates. These statutory problems should be remedied
as simply as possible before states attempt wholesale revision of their public
health codes. Since one of the major impediments to effective public health law
practice is the absence of any public health law practice guides, the state
should prepare a clear guide to public health law practice in the state. This
will help the city, county, and state attorneys who assist in the front line
work of public health enforcement. The LSU Law Center will be developing
templates to help states with these projects.
Each state should also address the lack of professional opportunity in
public health law practice. Finding expert legal support for public health
poses a special problem because most lawyers who provide public health legal
services work for city, county, or state legal departments, not the public
health departments. These lawyers do not identify themselves as public health
lawyers and do not belong to public health professional associations such as the
American Public Health Association (APHA). There are no professional
organizations for public health lawyers and few opportunities for the private
practice of public health law. City, county, and state legal departments do not
provide career paths for public health lawyers. Public health legal work often
goes to the most junior lawyer in the office, who will then pass it to the next
lawyer as soon as possible. The result is that there are very few career public
health attorneys and few legal departments with any personnel skilled in public
health law.
There is no need for any state to enact the Model State Emergency Health
Powers Act. It is critical to avoid overreaction and the passing of
ill-conceived legislation during a time of crisis. States should determine what
changes in their own laws will allow them to carry out their state emergency
management plans, and make only those changes. In most states, these changes
will be minor or will not be necessary at all. States should evaluate their
legal support for their public health agencies and develop public health law
career tracks that will attract and retain the best possible legal talent in
public health law practice.
[1] The law did pass. For more
information on the genesis of this and the controversy, see Edward P. Richards,
Communicable Disease Control in Colorado: The Rational Approach to AIDS, 65
DENV. U. L. REV. 127 (1988).
[2] Edward
P. Richards, "The
Jurisprudence of Prevention: Society's Right of Self-Defense Against Dangerous
Individuals," 16 Hastings Constitutional Law Quarterly 329-392 (1989).
[3] Jacobson
v. Commonwealth of
Massachusetts, 197 U.S. 11 (1905).
[4] Kansas
v. Hendricks, 521 U.S.
346 (1997).
[5] Smith
v. Doe __ US ___, 123 S.Ct.
1140, 71 USLW 4182 (2003).
[6] Korematsu
v. United States,
323 U.S. 214 (1944).
[7] Edward P. Richards and
Katharine C. Rathbun, "The Role of the Police Power in 21st Century Public
Health," Journal of Sexually Transmitted Diseases, 1999;26(6):350-7.
[8] Powell JH. Bring out your
dead: the great plague of yellow fever in Philadelphia in 1793. Philadelphia:
University of Pennsylvania Press; 1949.
[9] 424 U.S. 319, 335 (1976).
[11] Kennedy
v.
Mendoza-Martinez, 372 U.S. 144 (1963).
[12] City
of New York v New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S.2d 979 (1986),
affirmed, New York
v. New St. Mark's Baths, 168 A.D.2d 311, 562 N.Y.S.2d 642 (N.Y. App. Div. 1st
Dep't 1990).
[13] Chevron
U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843
(1984).
[14] George Annas,
Bioterrorism, Public Health, and Civil Liberties, 346 N Engl J Med 1337
(2002).
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