Harm, Public Health Threats, and the Model State Emergency Health Powers Act:

Bio-Terror Defense and Civil Liberties

Thomas May

Medical College of Wisconsin

The ‘War on Terror’ in the aftermath of Sept. 11^th 2001has resulted in a number of government actions that are controversial for their perceived threat to civil liberties. In the Health arena, the most controversial is the Model State Emergency Health Powers Act (MEHPA), a model law (currently under consideration in a number of states) that is designed to facilitate response to a bio-terror attack. The preamble of the Model Act states “…in the event of the exercise of emergency powers, the civil rights, liberties, and needs of infected or exposed persons will be protected to the fullest extent possible consistent with the primary goal of controlling serious health threats.” Nonetheless, the Model Act has been criticized both by conservatives and liberals for potential violation of civil liberties. In this paper, I propose to examine both the need for emergency health powers legislation, and criticisms of the MEHPA as a model for such legislation.

The key provisions of the Act that are perceived as a threat to civil liberties are these: in circumstances of a health emergency, the Act authorizes the official collection and sharing of an individual’s health information; gives state officials the authority to appropriate and use property (including health care facilities) as necessary for the care and treatment of patients, or for the destruction of contaminated materials; gives state officials the authority to appropriate necessary vaccines and medications to treat infected or exposed individuals; allows forced vaccination, treatment or quarantine of individuals deemed to pose a public health threat; and allows the state to require participation of health care professionals in the treatment and monitoring of infected individuals. All of this is necessary, it is argued, because existing public health laws are obsolete, and inadequate for addressing public health crises that might arise from a bio-terror attack.

Criticism of the MEHPA focus on the violation of civil liberties themselves, as well as on the specific system to be employed in the event of a public health emergency as recommended by the Model Act, as I will discuss below. There can be no question that the powers granted under the Model Act, if adopted, pose a threat to many civil liberties we have come to regard as “rights” in our daily social lives. The issue debated concerns the advisability of legislation that would allow violation of these rights in the event of a public health emergency such as a bio-terror attack. It is my opinion that such legislation is advisable, for two related reasons: First, our political system has long recognized the need to restrict civil liberties when such restriction is necessary to prevent significant harm to the public at large; second, how these liberties should and should not be restricted for the purposes just mentioned should not be left for consideration at the time a public health emergency arises. An outline for restriction of civil liberties should be publicly debated, then recognized through the official sanction of the legislative process. In this context, I believe the restriction of specific civil liberties themselves is justified in circumstances of public health emergencies such as a bio-terror attack.

The Justification of MEHPA

The most basic justification for restriction of civil liberties in U.S. society stems primarily from a philosophical idea known as “the harm principle.” The Harm Principle is a liberal principle that seeks to protect individual autonomy while simultaneously recognizing that in some cases, the exercise of one person’s autonomy can threaten another person’s freedom to structure their own life and values. Thus, The Harm Principle seeks to balance conflicting rights between individuals, and in this provides a basis for limiting rights on liberal grounds other than mere social utility.[1] John Stuart Mill, the principle’s most famous champion, described the principle in this way:

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[2]

The prominence of this principle can be seen in the way the court struggles to base review of legislation on it.[3] Even legislation that seems straightforwardly paternalistic, such as laws requiring motorcycle helmets or seat belt laws, have been upheld by courts on grounds that Ken Wing describes as “tortured judicial logic.”[4] Describing the numerous decisions concerning both mandatory helmet legislation and seat belt laws (which he describes as generally adopting the same principles and judicial postures), Wing states:

Note, in particular, that with the exception of the Fries[5] decision overturning early helmet legislation, all of these decisions have attempted to characterize this type of legislation as an attempt to protect the public’s – not the affected individual’s – health or welfare.[6]

Mill’s basic formulation of the Harm Principle illustrates the tension between public health good and the exercise of individual freedom. This principle holds that individual freedoms should not be restricted unless the exercise of a person’s freedom poses a threat of significant harm to other people. One example of the application of this principle can be seen in the restrictions that might be placed on the exercise of free speech: this right does not allow one to, for example, shout “Fire!” in a crowded theater in order to cause a stampede. Application of this idea to public health has been recognized in several U.S. Supreme Court decisions, most notably the case Jacobson v. Massachusetts.

Such restriction should only be employed, however, when necessary to prevent significant public harm. The health dangers posed by a bio-terror attack pose such a harm, as I will discuss below. In the context of the Harm Principle, it is important to recognize that the dangers imposed by refusal of public health services are not wholly individual. Vaccination provides a good example: Vaccines are not 100% effective. The effectiveness of vaccination programs relies on a concept of “herd immunity,” which holds that if a high enough percentage of people are immune to a given disease, even those who do not achieve immunity from vaccination gain protection because they are unlikely to be exposed to the disease. Without a very high rate of participation in the program, however, there will be a percentage of people who have been vaccinated that remain susceptible to vaccine-preventable diseases in cases of an outbreak. For example, during a measles outbreak in Utah, it was determined that the significant percentage of exempted people in a particular region led to an environment which made it possible for a six (viral) generation-long outbreak.[7] More than half of those who eventually contracted the disease had been vaccinated.[8] Similarly, in The Netherlands, A 1999 measles outbreak began with a cluster of children enrolled in a religious school whose members routinely decline vaccination, grew into a ten-month-long outbreak, with 2961 reported cases. A large percentage of those who contracted the disease, and whose vaccination status was known, had received at least one dose of the Measles Mumps and Rubella (MMR) vaccine.[9]

The relevance of these facts can be clearly seen in the justification of the MEHPA in the context of a bio-terror emergency whose containment or control requires the participation of a large segment of the population. According to MSEHPA author Lawrence Gostin, et al, the justification of the Act relates to the fact that there “may be a need to exercise powers over individuals to avert a significant threat to the public’s health . . . Although the vast majority of people probably will comply willingly (because it is in their interests and/or desirable for the common welfare), some compulsory powers are necessary for those who will not comply. Provided those powers are bounded by legal safeguards, individuals should be required to yield some of their autonomy, liberty, or property to protect the health and security of the community.”[10] Gostin continues: “Compulsory power has always been a part of public health law, because it is sometimes necessary to prevent or ameliorate unacceptable threats to the common good.”[11]

Despite this strong justification clearly grounded in the widely accepted “harm Principle,” criticisms that the MEHPA is too broadly defined may well be correct. As it stands, for example, implementation of the MEHPA is justified if a governor believes that any of the following harms are posed: (i) a large number of deaths in the population; (ii) a large number of serious or long-term disabilities in the affected population; or (iii) widespread exposure to an infectious or toxic agent that poses a significant risk of future harm to a large number of people in the affected population. The third condition, in particular, leaves a lot of latitude for interpretation. Consider one example raised by critics: although the Act is intended to apply in circumstances of immediate urgency like a bio-terror attack, the wording of the third condition (widespread exposure to an infectious agent that poses significant risk of future harm to a large number of people) could be interpreted as allowing implementation of the Act to appropriate and use medical facilities and medications, force treatment, and quarantine individuals to address HIV infection, or even the annual flu epidemics.[12]

The primary concern, here, is that the powers granted under the Act may be abused through the implementation of the Act as an over-reaction to “crises” that do not warrant significant violation of civil liberties. In response to these concerns, Jurist Richard Posner argues:

It will be argued that the lesson of history is that officials habitually exaggerate dangers to the nation’s security. But the lesson of history is the opposite. It is because officials have repeatedly and disastrously underestimated these dangers that our history is as violent as it is.”[13]

Posner points to examples including the Civil War, the Japanese attack on Pearl Harbor, the invasion of South Korea, and Soviet espionage that accelerated the Soviet Union’s acquisition of nuclear weapons. These problems, Posner argues, resulted from the failure to recognize dangers posed to national security in advance, and to take steps to address these possible dangers. Working now to recognize the possible dangers that bio-terror may pose is a prudent course. Once the danger posed by bio-terror is recognized, debate can turn to the specific circumstances that the powers that are called for, and to safeguards that can limit abuses of the Act’s implementation without threatening its effectiveness.

Our best estimates of the dangers posed stem from several exercises designed to simulate how a bio-terror attack would play out. One of these exercises, dubbed “Dark Winter,” simulated a smallpox attack in Oklahoma City, OK.[14] Due to the inherent latency period of smallpox symptoms following exposure and the covert nature of the initial attack, public health and government officials had difficulty identifying the original location (or locations) of the attack(s) and pinpointing the number of people initially exposed in time to fully contain a smallpox outbreak. Consequently, the twenty initially confirmed smallpox cases in Oklahoma City rapidly expanded to 16000 cases in 25 states with 1000 deaths, reported cases in 10 additional countries, widespread public panic, government destabilization, and still no clear answers of how to contain further spread of the disease.

Another exercise, dubbed “TOPOFF,” simulated a bio-terror attack using plague in Denver, CO.[15] In that exercise, a number of difficulties hindered efforts to contain the spread of disease and treat exposed victims. Travel by fearful individuals away from the site of outbreak facilitated spread of the initial outbreak to areas of Colorado outside Denver (the site of simulated attack), several other states, and even foreign countries. Lack of adequate facilities and supplies contributed to an epidemic that resulted in more than 4,000 cases of pneumonic plague and between 950-2,000 deaths in just a four day period (when the exercise was terminated).

The result of both exercises dramatically underscored the difficulties of containing a bio-terror attack without strong political leadership back by significant legislative powers. Our best estimates, then, call for recognition of a need for strong legislatively recognized authority in times of a bio-terror emergency. The MEHPA is informed by the needs identified in these exercises. It is important that the lessons learned from these exercises not be overlooked.

Perhaps Posner’s strongest argument in favor of some degree of suspension of civil liberties in times of crisis concerns the uncertainty that invariably faces decision-makers at the time of crisis:

It is true that when we were surprised and hurt, we tend to overreact – but only with the benefit of hindsight can a reaction be separated into its proper and excess layers. In hindsight we know that interning Japanese-Americans did not shorten World war II. But was this known at the time?[16]

Waiting until a crisis occurs to outline how civil liberties are restricted in times of emergency poses a greater danger to civil liberties than any proposed legislation. Off-the-cuff reaction (and over-reaction) seldom result in good public policy strategy. One important historical illustration that decision-making in the context of (perceived or real) crisis is the “Swine Flu Affair” of 1976.[17] In February 1976, public health officials discovered at an Army base in New Jersey what they believed may have been an outbreak of the same strain of virus that caused the Great Influenza Pandemic of 1918. In the face of a vociferous media appeal for access to vaccinations, the Centers for Disease Control recommended to President Ford that a mass immunization program take place. Policymakers believed that, in spite of the vagueness of the outbreak threat, vaccination against this potentially serious disease was the more prudent approach to protecting public safety. Following a Congressional appropriation to pay for the shots, and a modification of the Federal Tort Claims Act to shelter the vaccine manufacturers for liability arising out of use of the vaccine, the federal government undertook a voluntary mass immunization campaign. President Ford, in an attempt to encourage vaccination and to allay fears about potential side effects arising from the shots, made an appearance on prime time television with his family to receive the shots. By late 1976, over 40 million Americans had received the shots. However, the feared outbreak never occurred, and in fact the vaccination itself led to more than 1000 cases of Guillain-Barré syndrome, a paralytic disease. On December 16 of that year, the program was reluctantly ended. Some believe that the Administration’s handling of this public health emergency directly impacted the 1976 presidential election.[18]

Avoiding reactive decision-making requires that circumstances of “emergency” are clearly outlined, and that clear lines of authority are identified and recognized. The May, 2000 TOPOFF exercise conducted by the Department of Justice is perhaps the clearest to establish a need for advance bio-terror planning in this regard. Chief among the factors identified as obstructing public health efforts was a lack of clarity in lines of authority and questions about decision making authority to impose curfews on the general public and quarantine infected individuals, close city and state borders, triage medical resources, and maintain security at, and access to, healthcare facilities. For example, some individuals and agencies treated state public health agencies as the highest authority, others looked to CDC personnel, while the FBI was perceived as looking to the state Attorney General’s office as the highest authority. The result was a lack of coordination and consistency in approach. Stated one participant: “Decisions made on Saturday were reversed on Sunday, then reversed again on Sunday afternoon,” and another: “Reversing decisions back and forth is the antithesis of crisis management and efficient decision making.”[19]

The MEHPA is designed, above all else, to establish clear lines of authority in times of bio-terror emergencies. The Act outlines procedures for implementation, areas of enforceable powers and the scope of required participation among health professionals, health-related organizations, and the public at large. While the concerns of civil libertarians should be considered in refining the Model Act for use in practice, these concerns should not inhibit the adoption of legislation based on the Model Act. Such legislation is necessary if we are to avoid reactive decision-making in times of crisis, and develop effective procedures for controlling disease outbreak in the event of a bio-terror attack.

NOTES

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[1] See, generally, THOMAS MAY, BIOETHICS IN A LIBERAL SOCIETY: THE POLITICAL FRAMEWORK OF BIOETHICS DECISION MAKING (Johns Hopkins University Press, 2002).

[2] JOHN STUART MILL, ON LIBERTY, chapter one, paragraph 9.

[3] See KENNETH R. WING, THE LAW AND THE PUBLIC’S HEALTH, 3^RD EDITION 28 (Health Administration Press, 1990).

[4] Wing, The Law and the Public’s Health. The majority of courts, according to Wing, have relied on the argument that serious injuries resulting from the failure to wear helmets result in economic burden to the public. In reviewing mandatory motorcycle helmet legislation, however, courts have used other “logic,” including arguments that a failure to wear helmets affects third parties because: a serious motorcycle accident will cause a traffic hazard; society has an interest in maintaining a strong and productive citizenry; and the “well known fact” that cyclists ride near the center of the road and may therefore cross into oncoming traffic if injured.

[5] People v. Fries, 42 Ill. 2d 446, 250 N.E.2d 149 (1969).

[6] Wing, supra note __ at 36, note 3. It should be noted that Fries itself was subsequently overruled by a decision employing the rationale Wing describes. People v. Kohrig, 113 Ill. 2d 384, 498 N.E.2d 1158 (1986).

[7] Daniel A. Salmon, et al., Health Consequences of Religious and Philosophical Exemptions from Immunization Laws, Individual and Societal Risk of Measles, 282 JAMA 47 (1999).

[8] Id..

[9] Measles Outbreak – Netherlands, April 1999-January 2000. Morbidity and Mortality Weekly Report, April 14, 2000, pp. 299-303.

[10] Gostin LO, Sapsin JW, Teret SP, Burris S, Mair JS, Hodge JG Jr, Vernick JS. The Model State Emergency Health Powers Act: planning for and response to bioterrorism and naturally occurring infectious diseases. JAMA. 2002 Aug 7;288(5):622-8, at 624-5.

[11] Id. at 627

[12] See George Annas, “Bioterrorism, Public Health, and Civil Liberties,” New England Journal of Medicine, vol. 346, no. 17 (April 25, 2002), pp. 1337-42.

[13] Posner, Richard A., “Security versus Civil Liberties,” The Atlantic Monthly December, 2001.

[14] Tara O’Toole, Michael Mair, and Thomas Inglesby, “Shining Light on Dark Winter,” Clinical Infectious Diseases vol. 34 (April, 2002).

[15] Thomas Inglesby, Rita Grossman, and Tara O’Toole, “A Plague on Your City: Observations from TOPOFF,” Clinical Infectious Diseases, vol. 32 (2001), pp. 436-445.

[16] Posner, Richard A., “Security versus Civil Liberties.”

[17] See Richard E. Neustadt and Harvey V. Feinberg, The Swine Flu Affair: Decision-Making on a Slippery Slope (U.S. Department of Health, Education and Welfare, 1978); and Arthur M. Silverstein, Pure and Impure Science: The Swine Flu Affair (Johns Hopkins University Press, 1981).

[18] See Arthur M. Silverstein, Pure Politics and Impure Science: The Swine Flu Affair (Johns Hopkins University press, 1981); Robin M. Henig, The People’s Health: A Memoir of Public Health and Its Evolution at Harvard (Joseph Henry press, 1996).

[19] Inglesby, Grossman, and O’Toole, p.443.