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Bioterrorism and Public Health Law
To the Editor: In their article promoting the Model State Emergency Health Powers Act (MSEHPA) that they drafted, Mr Gostin and colleagues1 cite only 1 published criticism of it, which I wrote.2 This use of a single citation is misleading in 2 important ways: it implies that their act has wider support than it does, and it misstates the range of criticisms about it. As to the first, the authors themselves stated on the first page of the MSEHPA that it was intended simply as a "draft for discussion."3 They further wrote that it does "not represent the official policy, endorsement, or views" of anyone, including the US Centers for Disease Control and Prevention (CDC), or any of the organizations listed in the acknowledgments.
Second, the authors imply that my primary objection is that the act gives governors too much power. In fact, on this issue I stated simply, "State governors already have broad emergency powers; there is no compelling reason to expand them."2 The 3 most important objections I have to the act are (1) bioterrorism is inherently a federal issue, and only secondarily a state issue; (2) the premise that Americans must trade freedom for security in the event of a bioterrorist attack is false; the public and physicians are not the enemy and are in fact eager to cooperate if properly informed; and (3) the arbitrary use of force by public officials with immunity from liability is incompatible with medical ethics, constitutional principles, and basic democratic values.2
It is not surprising that almost all of the states that have considered the act have either rejected it or made major modifications in it. Of these, the authors mention only Minnesota, stating that its new law makes quarantine and isolation "subject to modernized, significant personal safeguards including due process." The Minnesota law provides that, even in a public health emergency, "individuals have a fundamental right to refuse medical treatment, testing, physical or mental examination, vaccination, participation in experimental procedures and protocols, collection of specimens, and preventive treatment programs."4
What is surprising about the authors' embrace of the Minnesota law is that it is so contrary to the provisions of their own MSEHPA. If the authors believe (as I do) that the Minnesota language is more modern and provides better safeguards, then it should replace the corresponding language in their draft act. Writing legislation is an exercise in democracy, and everyone gains by open debate in which their biases and assumptions can be challenged.
Gostin et al have provided a service by presenting their "draft for discussion." But the MSEHPA is a seriously flawed proposal that should not be rigidly defended but rather should be regularly amended as better provisions are adopted by legislatures or proposed by commentators.
George J. Annas, JD, MPH
Health Law Department
Boston University School of Public Health
Boston, Mass
1. Gostin LO, Sapsin JW, Teret SP, et al. The Model State Emergency Health Powers Act: planning for and response to bioterrorism and naturally occurring infectious diseases. JAMA. 2002;288:622-628.
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2. Annas GJ. Bioterrorism, public health, and civil liberties. N Engl J Med. 2002;346:1337-1342.
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3. Center for Law and the Public's Health. The Model State Emergency Health Powers Act as of December 21, 2001. Available at: http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf. Accessibility verified October 23, 2002.
4. Minn Rev Stat Ann  144.419 (West 2002).
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To the Editor: The vulnerability of the United States to a bioterrorist event causing many thousands, even millions, of casualties has been discussed for more than 10 years.1 Since that time, the United States has done little to improve intelligence capabilities, to develop technological devices to provide early detection of an attack, to deploy defensive weapons systems, to stockpile decontaminants, medical supplies, and drugs, to provide civilian shelters or safe rooms, to enhance public health laboratories and add surge capability, or to train citizens in ways to protect themselves.
The MSEHPA, written and advocated by Mr Gostin and colleagues,2 would do nothing to improve the actual ability of government agencies to mitigate a massive attack. Both the original proposal3 and the revised version cited by Gostin et al, which was apparently modified somewhat in response to criticism, give state governments tremendous unbridled power to seize property, commandeer resources, and force potentially misdirected treatment or quarantine on the population. To date most states have rejected or shelved the act, with good reason.
Under the act, a governor would have unlimited discretion to define an emergency, granting himself or herself enormous power in the event of, for example, a half dozen deaths from West Nile virus. In the meantime, citizens are actually forbidden to try to diminish their nearly total susceptibility to smallpox by choosing preemptive vaccination. Many suggestions have been made, including accelerated programs to test and stockpile potentially effective antiviral agents, use of high-efficiency particulate air filters in large buildings, and systems to monitor the air in public places for increased nitric oxide in exhaled breath.4
The MSEHPA does nothing to correct the "pervasive unpreparedness [that] well characterizes our present condition—near-term outlook—to several classes of neobarbarian threats."5 Enacting the MSEHPA law would, at best, be another symptom of denial while creating a mechanism susceptible to massive governmental abuse.
Jane M. Orient, MD
Association of American Physicians and Surgeons
Tucson, Ariz
1. Orient JM. Chemical and biological warfare: should defenses be researched and deployed? JAMA. 1989;262:644-648.
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2. Gostin LO, Sapsin JW, Teret SP, et al. The Model State Emergency Health Powers Act: planning for and response to bioterrorism and naturally occurring infectious diseases. JAMA. 2002;288:622-628.
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3. Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities. The Model State Emergency Health Powers Act as of October 23, 2001. Available at: http://www.aapsonline.org/legis/msehpa.pdf. Accessed September 3, 2002.
4. Koonin SE. Biodefense: scenarios, science, and security. Eng Sci. 2001;LXIV(3/4):23-29.
5. Wood L. From terrorists to missiles: large-scale threats to the USA. Presented at: Doctors for Disaster Preparedness 20th annual meeting; July 28, 2002; Colorado Springs, Colo. Available at: http://www.oism.org/ddp/wood02.pdf. Accessed September 3, 2002.
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In Reply: We have responded in detail elsewhere to the relatively few vocal critics of the Act.1-2 The claim that the MSEHPA,3 drafted at the CDC's request, does not have wide support is untrue. During the single legislative session since its release in December, 2001, 36 of 50 states introduced legislation based in whole or in part on the MSEHPA. Of these, 20 states and the District of Columbia have passed bills.
There are, of course, valid disagreements about any legislation designed to ensure active surveillance for and effective response to bioterrorism. The most important issue is the appropriate balance between civil liberties and the public good. The MSEHPA provides carefully crafted safeguards of personal rights; indeed the standards and procedures in the MSEHPA are more rigorous than those in many current public health statutes.
The particular objections of Mr Annas and Dr Orient are not telling. Certainly, the federal government has an important role to play in bioterrorism, but the states are critically important constitutionally, historically, and practically.4 States and localities would be the first to detect an outbreak and would be centrally involved in containment. The assertion that there are never tradeoffs between civil liberties and public health has no support, even in liberal philosophy. Although most people will comply with public health advice, common sense suggests that public health officials also may need adequate authority to avert a significant risk. Arbitrary or unnecessary use of force is egregious. This is precisely why it is essential to have a modern set of laws at the state level. Our model law is intended to provide a flexible checklist for the states to adapt to their unique structures.
Both Annas and Orient mischaracterize the MSEHPA to make a general argument against the exercise of public health authority. The MSEHPA does not provide "unbridled power," but uses careful checks and balances as we discussed in our article. A governor would not have unlimited discretion but would be required to follow explicit criteria defined by the state legislature. Furthermore, a governor's decision could be overturned by the legislature or the courts.
We believe that the MSEHPA has galvanized public debate in public health law and ethics. The debate is healthy and we welcome continuous improvement of public health laws to safeguard the common good while promoting respect for human rights.
Lawrence O. Gostin, JD;
Jason W. Sapsin, JD;
Stephen P. Teret, JD, MPH;
Scott Burris, JD;
Julie Samia Mair, JD, MPH;
James G. Hodge, Jr, JD, LLM;
Jon S. Vernick, JD, MPH
Center for Law and the Public's Health
Georgetown University/Johns Hopkins Bloomberg School of Public Health
Washington, DC
1. Gostin LO. Public health law in an age of terrorism: rethinking individual rights and common goods. Health Aff (Millwood). 2002;21:79-93.
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2. Mair JS, Sapsin JW, Teret SP. The Model State Emergency Health Powers Act and beyond. Biodefense Q. 2002;3:1-11.
3. Center for Law and the Public's Health. The Model State Emergency Health Powers Act as of December 21, 2001. Available at: http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf. Accessibility verified October 23, 2002.
4. Gostin LO. Public Health Law: Power, Duty, Restraint. Berkeley: University of California Press; 2000.
Letters Section Editor: Stephen J. Lurie, MD, PhD, Senior Editor.
JAMA. 2002;288:2685-2687.
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