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The Homeland Security Bill - Is It Being Used As An Excuse To Federalize the Model (State) Emergency Health Powers Act

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The Homeland Security Bill - Is It Being Used As An Excuse To Federalize the Model (State) Emergency Health Powers Act (MEHPA)?      

Last week, in a surprise move right before Congress was scheduled to adjourn for the year, a Homeland Security Bill was dropped in the laps of the U.S. House.  This bill contained new provisions, some of which had never been discussed or even seen by most House or Senate members, as well as some highly questionable riders few seemed to have known about, including one which would force all litigation against thimerosal manufacturers such as Eli Lilly, into the Vaccine Injury Compensation Program (VICP).  Rather than take a chance that the public would decry any effort to defeat the Homeland Security Bill, given the unprecedented mid-term "sweep" by the Republicans, thought by many to have been due to public frustration with Senate failure to pass the earlier Homeland Security Bill (which the House had passed months before), the House quickly voted to accept the new version.   They then adjourned.

The Senate was now in the uncomfortable position of having to call the House back into session were they to defeat the bill or the riders.  With little time and few viable options from their perspective, and even though passage of it would require the House to revisit the question, an amendment ("The Daschle-Lieberman Amendment") was offered as a solution to the problem with the riders.  It failed to pass, but the vote was close (52 No, 47 Aye), and promises were made to certain Senators that the problem with at least some of the riders would be re-addressed next year.

Among the new provisions in the bill are sections dealing with emergency vaccination and medication.  The question on how to handle this "public health" problem, at least until the appearance of this new bill, had been handed to the states to answer via the MEHPA, presumably because it was thought to be a "states' rights" issue and require action by each state legislature.  The Homeland Security Bill as now written, however, appears to be an effort to circumvent states' rights, by federalizing declared emergencies related to "public health".  It seems to have been decided that declaring a federal emergency using federal law would allow states' rights to be by-passed.  This arguable point of view, as well as the specifics of any provisions in this bill,  may still be revised and/or tested in the courts.

This effort seems to be, at least in part, a reaction to the failure of all states to pass, or in some cases to even consider passing thus far, an MEHPA bill.  It is in clear contrast to the original plan, and it would seem the earlier belief it would be necessary, to get the bill passed in each of the 50 states.  Quick passage of this law may have also been based on the perhaps erroneous belief that Republicans had a clear mandate from the American People to do so  

Because of the continued relevance of the issues raised in an earlier article, and the critical need to address them in the next Congress, it will now be re-published in full.

MEHPA - Why Government and Medicine Shouldn't Mix

In spite of the fact that the United States does its utmost to avoid enemy war-time civilian casualties, the government's Centers for Disease Control and Prevention (CDC), under the auspices of the Center for Law and the Public Health, founded "with generous support" from the CDC, has embarked on a plan to sacrifice some of our own civilians to its idea of "the common good".  Dubiously entitled the "Model State Emergency Health Powers Act", and now in its second draft, this proposed act, already being submitted in a number of states, would give the power of life and death over citizens to each state's governor.  

Taking advantage of current widespread fear of bioterrorism, the following are a few of the things the act would do, if adopted in it's entirety:

1.  Grant the governor of each state power to declare a "public health emergency" as defined in the act, with or without consulting anyone. (Article IV, Section 401)

2.  Require medical examination and/or testing and force isolation or quarantine if it is deemed that refusal "poses a danger to public health".  (Article VI, Section 602(c))

3.  Require treatment and/or vaccination and "isolate or quarantine" those "unwilling or unable" to do so.  (Article VI, (Article VI, Sections 603(a)(3) and 603(b)(3))

4.  Constitute as a misdemeanor, "failure to obey these provisions" (for examination, testing, isolation or quarantine).  (Article VI, Sections 604(a) and 604(c))

5.  Provide that there be no liability for any "State or local official" causing harm to individuals in their efforts to comply with the provisions of the act, unless there is "gross negligence or willful misconduct". (Article VIII, Section 804(a))

6.  Provide for similar absence of liability for "any private person, firm or corporation" and their "employees" or "agents".  (Article VIII, Section 804(b)(2) and 804(b)(3))

7.  Allow for the destruction of property without compensation if  "there is reasonable cause to believe that they may endanger the public health pursuant to Section 501". (Article V, Sections 506 and 507) - (Note: "they" refers to the properties described in the act.)

8.  Limit legal recourse.  (Article VI, Section 605)

9.  Allow for "the public safety authority (to) request assistance from the organized militia in enforcing the orders of the public health authority."  (Article IV, Section 404)

As George Annas, chairman of the Health Law Department at the Boston University School of Public Health said,  "This law treats American citizens as if they are the enemy".

Why is all this being urged when serious concerns have been raised about the currently available vaccines, smallpox and anthrax;  why is this being done, given that smallpox vaccine can be administered as many as a few days post-exposure (with smallpox not being contagious until there are obvious signs of infection), and with anthrax treatable with antibiotics if caught early enough?

Why is all this being urged when for many of the other potential threats there is no current treatment and/or vaccine, meaning development would have to be "fast-tracked" and consequently more risky; or effective treatments exist (e.g., antibiotics against plague and tularemia, and anti-toxin for botulism) for those specific people who have been exposed? 

Why is all this being urged in spite of the fact that Dr. Henderson, head of the Global Smallpox Eradiation Program, which ended in 1980, has stated publicly that no one should ever be forced to be vaccinated?

Why is all this unabashedly being urged when there are authoritative arguments against quarantine?  

Why is all this being urged making no distinction between whether an agent is contagious or merely infectious and may or may not be "transmissible from person to person, animal to person, or insect to person"?

Why is all this being urged when vaccines that work protect those who choose their protection?

Perhaps the most hideous aspect of this, however, is the notion that some will have to be sacrificed for the so-called common good.  Who decides what comprises the "common good"?  How many will be sacrificed?  Just, what, exactly, is the right number?  And why such cocksureness about what constitutes good medical care or advice, given a multitude of medical fiascos, both past and present?

So many in this great nation have fought and died to preserve our freedom from tyranny.  What would they think of this home-grown version of it?  For what did they fight and die, if not to prevent this very kind of thing?

Sandy Gottstein

Date: 11-22-2002        

"Eternal vigilance is the price of liberty." - John Philpot Curran (1808)