Public Health Law In An Age Of Terrorism: Rethinking Individual Rights And Common Goods

Transcription

1 Public Health Law In An Age Of Terrorism: Rethinking Individual Rights And Common Goods In defense of a model act that was written to bring public health law into the modern age. by Lawrence O. Gostin PROLOGUE: Following the 2001 anthrax attacks, an outbreak of concern about the inadequacies of the public health infrastructure caught the nation in the grip of a profound ambivalence about what we expect from government. For the past twenty years distrust of public institutions has severely dampened public health spending and so dominated the political landscape that even the Institute of Medicine s stern warning about deterioration of the infrastructure in 1988 did not generate renewed investment. Then, in the wake of the anthrax scare, the refrain suddenly became, Why aren t we better prepared? The following essay by legal scholar Lawrence Gostin suggests that our collective confusion about public health goes deeper than dollars. To perform its essential functions, the public health system needs legal authority to act. Yet most of its statutory foundations, which lie primarily in the domain of state government, have not been updated for half a century. Even before last fall s terrorist attacks, efforts were under way to develop new model laws for the states. The focus of the model legislation is to confer enough authority that public health agencies can mount adequate preparations, obtain information, and act in an emergency to protect those who are threatened. But some sacrifice of personal rights and freedoms is necessary to achieve this end, and these legal initiatives have been controversial. In a country so tied to rights rhetoric, any proposal that has the appearance of strengthening governmental authority was bound to travel in tumultuous political waters, Gostin concludes. Three Perspectives that follow Gostin s paper highlight the extent of the disagreement that still exists, nearly a year after the model law was last revised. Gostin is ideally suited to clarify the difficult issues involved. He is a professor of law at Georgetown University; a professor of public health at the Johns Hopkins University; and director of the Center for Law and the Public s Health, which drafted the Model State Emergency Health Powers Act at the request of the Centers for Disease Control and Prevention. HEALTH AFFAIRS ~ Volume 21, Number Project HOPE The People-to-People Health Foundation, Inc.

2 Public Health Law ABSTRACT: The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health of the public. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. This paper explains modern efforts at public health law reform: a Model Public Health Statute and the Model State Emergency Health Powers Act (MSEHPA), which has been enacted wholly or in part by nineteen states and the District of Columbia. Next, the paper shows why existing public health laws provide a weak foundation for public health practice. Finally, the paper offers a systematic defense of MSEHPA, which has galvanized the public debate around the appropriate balance between public goods and individual rights. Public and scholarly discourse in the late twentieth century became highly oriented toward rights. The political community stressed the importance of individual freedoms rather than the health, security, and well-being of the community. The salience of individualism could be seen on both sides of the political spectrum. The ideological left favored a set of personal interests, principally autonomy, privacy, and liberty. This meant that individuals should be free to make choices, restrict the flow of health information, and have unfettered movement, without regard to the needs and desires of the wider community. The ideological right favored a set of proprietary interests, principally the freedom to contract, conduct business, use and develop property, and pursue a profession. This meant that entrepreneurs should be permitted to engage in free enterprise without the fetters of, for example, occupational health and safety regulations, inspections and products liability, zoning and nuisance abatements, and licenses. In this civil and property rights society, the tone has been distinctly antigovernment. The State has been perceived as inefficient, bureaucratic, and burdensome. Citizens have opposed taxation and broad health and welfare spending as well as oppressive regulation. From a funding perspective, this has meant that health dollars have been allocated primarily to advanced biotechnology and health care, which serve the needs of individual patients, particularly those who can afford private health insurance. Funding for traditional prevention and populationbased services represents only a small fraction of health spending, estimated at around 1 percent at the state level and less than 5 percent at the federal level. 1 As a result of chronic underspending, the public health infrastructure is badly deteriorated. 2 Public health agencies lack the capacity to conduct essential public health services at a level of performance that matches the constantly evolving threats to the health of the public. Critical components of that infrastructure include a well-trained workforce, electronic information and communications systems, rapid disease surveillance and reporting, laboratory capacity, and emergency response capability. 3 The public health law infrastructure is equally deficient. The law establishes 80 November/December 2002

3 the mission, functions, and powers of public health agencies. Yet public health laws are highly antiquated, after many decades of neglect. Very little consideration has been given to modernizing these laws to reflect advances in public health practice and constitutional law. Reform of public health law is essential to ensure that public health agencies have clear missions and functions, stable sources of financing, adequate powers to avert or manage health threats, and restraints on powers to maintain respect for personal rights and liberties. The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. The attacks on the World Trade Center and Pentagon on 11 September 2001 and the subsequent dispersal of anthrax spores through the U.S. postal system reawakened the public to the importance of public health, safety, and security. 4 The president s 2003 budget reflects changing priorities, with an influx of funding to prevent and respond to bioterrorism. 5 However, even in this budget, disproportionate funding is devoted to biotechnology rather than to basic prevention and population-based services. 6 This paper explores the appropriate balance between individual interests and common goods. The current focus on individualism should be seen not as fixed and authoritative, but rather as transient and culturally derived. There is, of course, an alternative philosophical tradition that sees individuals primarily as members of communities. This communitarian tradition views individuals as part of social and political networks, with each individual reliant on the others for health and security. 7 Individuals, according to this tradition, gain value from being a part of a well-regulated society that seeks to prevent common risks. In legal terms, this communitarian tradition is expressed in the police power to protect the health, safety, and security of the population. In fact, the linguistic and historical origins of the concept of police demonstrate a close association between government and civilization: politia (the state), polis (city), and politeia (citizenship). 8 The word had a secondary usage as well: cleansing or keeping clean. This use resonates with early-twentieth-century public health connotations of hygiene and sanitation. First, this paper explains modern efforts at public health law reform. Even before September 11, the Robert Wood Johnson Foundation s (RWJF s) Turning Point initiative supported comprehensive reform of antiquated public health laws the Public Health Statute Modernization Collaborative. After the anthrax outbreak, the Centers for Disease Control and Prevention (CDC) asked the Center for Law and the Public s Health (CLPH) at Georgetown and Johns Hopkins Universities to draft the Model State Emergency Health Powers Act (MSEHPA). Thirty-five states and the District of Columbia have introduced legislative bills or resolutions based in whole or part on this model act. Nineteen states and D.C. have enacted MSEHPA or a version of it. 9 Next, the paper shows why existing public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate HEALTH AFFAIRS ~ Volume 21, Number 6 81

4 Public Health Law from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, the critical variables for public health preparedness: planning, coordination, surveillance, management of property, and protection of persons. Finally, the paper offers a systematic defense of MSEHPA. The model act has galvanized the public debate around the appropriate balance between public goods and individual rights. Although it has had success in many state legislatures, it has been criticized by both ends of the political spectrum. Many of the critiques offer a rationale for protecting property and personal rights against state incursions. This defense shows how MSEHPA creates strong public health powers while safeguarding individual freedoms adopting clearer standards and more rigorous procedures than existing statutes do. Two National Projects For Public Health Law Reform The Institute of Medicine (IOM), in its foundational 1988 report, The Future of Public Health, acknowledged that law was essential to public health but cast serious doubt on the soundness of public health s legal basis. Concluding that this nation has lost sight of its public health goals and has allowed the system of public health activities to fall into disarray, the IOM recommended reform of an obsolete and inadequate body of enabling laws and regulations. 10 In its 2002 report, The Future of the Public s Health in the Twenty-first Century, the IOM notes that little progress has been made in implementing its 1988 proposal. The committee recommends that public health law be reformed so that it conforms to modern scientific and legal standards, is more consistent within and among states, and is more uniform in its approach to different health threats. 11 The U.S. Department of Health and Human Services (HHS) in Healthy People 2010 similarly argued that strong laws are a vital component of the public health infrastructure and recommended that states reform their outdated statutes. 12 Public Health Statute Modernization Collaborative. In response to a sustained critique of the crumbling public health infrastructure, the RWJF, in partnership with the W.K. Kellogg Foundation, initiated the Turning Point project in 1996: Collaborating for a New Century in Public Health. Turning Point launched five National Excellence Collaboratives in 2000, including the Public Health Statute Modernization Collaborative. The collaborative s mission was to transform and strengthen the legal framework for the public health system through a collaborative process to develop a model public health law. The Public Health Statute Modernization Collaborative is led by a consortium of states, in partnership with federal agencies and national organizations. The collaborative contracted with the author to draft a model public health act under the guidance of a national expert advisory committee. It has published a comprehensive assessment of state public health laws, demonstrating the inadequacies of existing law to support modern public health functions. 13 The objective is to ensure that state public health law is consistent with modern constitutional principles 82 November/December 2002

5 MSEHPA was written following a broad dialogue regarding the purpose of emergency public health law. and reflects current scientific and ethical values underlying public health practice. This model public health act will focus on the organization, delivery, and funding of essential public health services and functions. It is scheduled for completion by October 2003, and current drafts are available on the Internet. 14 Model State Emergency Health Powers Act. The law-reform process took on new urgency after the terrorist attacks of late In response, the CLPH drafted MSEHPA at the request of the CDC. The act was written in collaboration with members of national organizations representing governors, legislators, public health commissions, and attorneys general. 15 There was also an extensive consultative process involving the major stakeholders such as businesses, public health and civil liberties organizations, scholars, and practitioners. MSEHPA, therefore, was written following a broad dialogue regarding the purpose of emergency public health law, its proper reach, and the protection of civil liberties and private property. The act is explained in greater detail elsewhere, but the following brief description provides the background for a more sustained defense of the act s approach. 16 MSEHPA is structured to reflect five basic public health functions to be facilitated by law: preparedness, surveillance, management of property, protection of persons, and public information and communication. The preparedness and surveillance functions take effect immediately upon the act s passage. However, the compulsory powers over property and persons take effect only once a state s governor has declared a public health emergency. A public health emergency is defined as the occurrence of imminent threat of an illness or health condition caused by bioterrorism or a novel or previously controlled or eradicated infectious agent or biological toxin. The health threat must pose a high probability of a large number of deaths or serious disabilities in the population. The act facilitates systematic planning for a public health emergency. The state Public Health Emergency Plan must include coordination of services; procurement of vaccines and pharmaceuticals; housing, feeding, and caring for affected populations (with appropriate regard for their physical and cultural/social needs); and the proper vaccination and treatment of individuals. The act provides authority for surveillance of health threats and continuing power to follow a developing public health emergency. For example, it requires prompt reporting by health care providers, pharmacists, veterinarians, and laboratories. It also provides for the exchange of relevant data among lead agencies such as public health, emergency management, and public safety. MSEHPA provides comprehensive powers to manage property and protect persons, to safeguard the public s health and security. Public health authorities may close, decontaminate, or procure facilities and materials to respond to a public HEALTH AFFAIRS ~ Volume 21, Number 6 83

6 Public Health Law health emergency; safely dispose of infectious waste; and obtain and deploy health care supplies. Similarly, the model act permits public health authorities to physically examine or test individuals as necessary to diagnose or to treat illness; vaccinate or treat individuals to prevent or ameliorate an infectious disease; and isolate or quarantine individuals to prevent or limit the transmission of a contagious disease. The public health authority also may waive licensing requirements for health care professionals and direct them to assist in vaccination, testing, examination, and treatment of patients. Finally, MSEHPA provides for a set of postdeclaration powers and duties to ensure appropriate public information and communication. The public health authority must provide information to the public regarding the emergency, including protective measures to be taken and information regarding access to mental health support. In summary, MSEHPA requires the development of a comprehensive plan to provide a coordinated, appropriate response in the event of a public health emergency. It facilitates the early detection of a health emergency by authorizing the reporting as well as collection and exchange of data. During a public health emergency, state and local officials are authorized to use and appropriate property as necessary for the care, treatment, and housing of patients and to destroy contaminated facilities or materials. They are also empowered to provide care, testing, treatment, and vaccination to persons who are ill or who have been exposed to a contagious disease and to separate affected individuals from the population at large to interrupt disease transmission. At the same time, the act recognizes that a state s ability to respond to a public health emergency must respect the dignity and rights of persons. Guided by principles of justice, state and local governments have a duty to act with fairness and tolerance toward individuals and groups. Inadequacy Of Existing Public Health Legislation Before beginning a detailed defense of the model act, it is important to show why current law provides a weak foundation for the effective identification and control of serious health threats. Critics attack MSEHPA as if it were proposed in a regulatory vacuum. Yet public health is practiced under a voluminous set of laws and regulations. The issue is not whether the act provides an ideal solution to perennially complex problems. Rather, the issue is whether the act does a much better job than existing legislation does. As the following discussion demonstrates, existing state law is obsolete, fragmented, and inadequate. Outdated state laws do not support, and even thwart, effective public health surveillance and interventions. 17 Public health legislation is so old that it tells the story of communicable diseases through time, with new layers of regulation with each page in history from plague and smallpox to tuberculosis and polio, and now HIV/AIDS and West Nile virus. Many laws have not been systematically updated since the early to midtwentieth century. 18 State laws predate modern public health science and prac- 84 November/December 2002

7 Existing public health laws are so obtuse that few public health practitioners, or even legal counsel, fully understand them. tice. Research demonstrates that existing public health law does not conform to modern ideas relating to the mission, functions, and services of public health agencies. 19 Existing state laws also predate advances in constitutional law and civil liberties (such as privacy and antidiscrimination). For example, many public health laws do not provide rigorous procedural due process protections. Existing laws are so obtuse that few public health practitioners, or even legal counsel, fully understand them. Discussion of law reform, therefore, must take account of the obsolescence and complexity of current legislation. Public health laws are inconsistent both within states and among them. Within states, different rules apply depending on the particular disease in question. Public health officers may legally exercise compulsory powers (screening, vaccination, directly observed therapy, or isolation) for one health threat but not another, and they may have a duty to assure privacy, nondiscrimination, and procedural due process in some cases but not in others. Inconsistencies among the states and territories lead to profound variation in the structure, substance, and procedures for detecting, controlling, and preventing disease. A certain level of consistency is important in public health because infectious diseases usually occur regionally or nationally, requiring a coordinated approach to surveillance and control. Many current laws fail to provide necessary authority for each of the key elements for public health preparedness: planning, coordination, surveillance, management of property, and protection of persons. States have not devised clear methods of planning, communication, and coordination among the various levels of government (federal, tribal, state, and local), responsible agencies (public health, law enforcement, and emergency management), and the private sector (food, transportation, and health care). Indeed, because of privacy concerns, many states actually proscribe the exchange of vital information. 20 Current statutes also do not facilitate surveillance and may even prevent monitoring. For example, many states do not require timely reporting for Category A agents of bioterrorism. 21 At the same time, states do not require public health agencies to monitor data held by hospitals, managed care organizations, and pharmacies and may even prohibit them from doing so. 22 Extant laws usually do provide powers over property and persons, but their scope is limited. Some statutes permit the exercise of certain powers (such as quarantine) but not others (such as directly observed therapy). Other statutes permit the exercise of powers in relation to certain diseases (such as smallpox and tuberculosis) but not others (such as hemorrhagic fevers). There are numerous circumstances that might require management of property in a public health emergency: shortages of vaccines, medicines, hospital beds, or facilities for dis- HEALTH AFFAIRS ~ Volume 21, Number 6 85

8 Public Health Law posal of corpses. It may even be necessary to close facilities or destroy property that is contaminated or dangerous. There similarly may be a need to exercise powers over individuals to avert a serious threat to the public s health. Vaccination, testing, physical examination, treatment, isolation, and quarantine each may help to contain the spread of communicable diseases. In summary, existing public health laws introduce two kinds of error that require correction. On the one hand, many statutes fail to provide adequate powers to deal with the full range of health threats. On the other hand, when they do authorize coercion, statutes rarely provide clear standards and fair procedures for decision making. A Defense Of The Model Act There have been several specific objections to MSEHPA: federalism federal, not state, law is implicated in a health crisis; emergency declarations the scope of a public health emergency is overly broad; abuse of power governors and public health officials will act without sufficient justification; personal libertarianism compulsory powers over nonadherent individuals are rarely, or never, necessary; economic libertarianism regulation of businesses is counterproductive; and safeguards of property and persons MSEHPA fails to provide strong protection of individual and economic freedoms. Federalism. Critics argue that acts of terrorism are inherently federal matters, so there is no need for expansion of state public health powers. It is certainly true that federal authority is extraordinarily important in responding to catastrophic public health events: Bioterrorism may trigger national security concerns, require investigation of federal offenses, and affect geographic regions or even the entire country. Consequently, the federal government often takes the lead in responding to a public health emergency, as it did in the anthrax outbreaks. Indeed, the federal government, under the national defense or commerce powers of the Constitution, is entitled to act in the context of multistate threats to health and security. The assertion of federal jurisdiction, of course, does not obviate the need for adequate state and local public health power. States and localities have been the primary bulwark of public health in America. From a historical perspective, local and state public health agencies predated federal agencies. Local boards of health were in operation in the late eighteenth century, and state agencies emerged after the Civil War. Federal health agencies, however, did not develop a major presence until Franklin Roosevelt s New Deal. State and local agencies have played a crucial role in infectious disease control from colonial and revolutionary times, through the industrial revolution, to the modern times. From a constitutional perspective, states have plenary authority to protect the public s health under their reserved powers in the Tenth Amendment. The Supreme Court has made it clear that states have a deep reservoir of public health powers, conceiving of state police powers as an immense mass of legislation In- 86 November/December 2002

9 spection laws, quarantine laws, and health laws of every description are components of this mass. 23 The Supreme Court, moreover, regards federal police powers as constitutionally limited and has curtailed the expansion of national public health authority. 24 From an economic and practical perspective, most public health activities take place at the state and local levels: surveillance, communicable disease control, and food and water safety. States and localities probably would be the first to detect and respond to a health emergency and would have a key role throughout. This requires states to have effective, modern statutory powers that enable them to work alongside federal agencies. Declaration of a public health emergency. Critics express concern that the model act could be triggered too easily, creating a threat to civil liberties. Community-based organizations objected to the idea that a governor might declare a public health emergency for an endemic disease such as HIV/AIDS or influenza. Although this may have been a problem with the act s initial version, the current version expressly states that a governor may not declare a public health emergency for an endemic disease. Legal scholars express concerns that a governor could declare an emergency for a theoretical or low-level risk. However, the drafters set demanding conditions for a governor s declaration, clearly specifying the level of risk. A public health emergency may be declared only in the event of bioterrorism or a naturally occurring epidemic that poses a high probability of a large number of deaths or serious disabilities. Indeed, the drafters rejected arguments from high-level federal and state officials to set a lower threshold for triggering a health emergency. Finally, commentators suggest that governors retain too much discretion to declare a public health emergency. However, the act specifies clear criteria for triggering gubernatorial powers and uses language that fetters the exercise of discretion. The act also allows the legislature and judiciary to intervene if the governor has acted outside the scope of his or her authority. Taken as a whole, the drafters carefully limited the circumstances under which the act s more robust powers can be invoked. Governmental abuse of power. Critics argue that governors and public health authorities would abuse their authority and exercise powers without justification. This kind of generalized argument could be used to refute the exercise of compulsory power in any realm, because executive branch officials may overreach. However, such general objections have never been a reason to deny government the power to avert threats to health, safety, and security. The answer to such general objections is to introduce into the law careful safeguards to prevent officials from acting outside the scope of their authority. The model act builds in effective protection against governmental abuse. It adopts the doctrine of separation of powers, so that no branch wields unchecked authority. These checks and balances offer a classic means of preventing abuse. HEALTH AFFAIRS ~ Volume 21, Number 6 87

10 Public Health Law The history of public health is littered with illustrations of tradeoffs between public health and civil liberties. MSEHPA creates several hedges against abuse: (1) The governor may declare an emergency only under strict criteria and with careful consultation with public health experts and the community; (2) the legislature, by majority vote, can override the governor s declaration at any time; and (3) the judiciary can terminate the exercise of power if the governor violates the act s standards or procedures or acts unconstitutionally. No law can guarantee that the powers it confers will not be abused. But MSEHPA counterbalances executive power by providing a strong role for the legislature and judiciary. Therefore, it sets clear criteria for the exercise of power, requires a consultative process, and imposes checks and balances. There is little more that any law could do to prevent abuse of power. Personal libertarianism. Critics imply that the model act should not confer compulsory power at all. In particular, they object to compulsory powers to vaccinate, test, medically treat, isolate, and quarantine. Commentators reason that services are more important than power; that individuals will comply voluntarily with public health advice; and that trade-offs between civil rights and public health are not required and even are counterproductive. Certainly the HIV/AIDS epidemic has demonstrated that public health and civil liberties can be mutually reinforcing respect for individual freedoms can promote the public s health. Nevertheless, the arguments that law should not confer compulsory power are misplaced. First, although the provision of services may be more important than the exercise of power, the state undoubtedly needs a certain amount of authority to protect the public s health. Government must have the power to prevent individuals from endangering others. It is only common sense, for example, that a person who has been exposed to an infectious disease should be required to undergo testing or medical examination and, if infectious, to be vaccinated, treated, or isolated. Second, although most people can be expected to comply willingly with public health measures because it is in their own interests or desirable for the common welfare, not everyone will comply. Individuals may resist loss of autonomy, privacy, or liberty even if their behavior threatens others. Provided that public health powers are hedged with safeguards, individuals should be required to yield some of their interests to protect the health and security of the community. Finally, although public health and civil liberties may be mutually enhancing in many instances, they sometimes come into conflict. When government acts to preserve the public s health, it can interfere with property rights (for example, freedom of contract, to pursue a profession, or to conduct a business) or personal rights (for example, autonomy, privacy, and liberty). The history of public health is littered with illustrations of trade-offs between public health and civil liberties. 25 It may be fashionable to argue that there is no tension, but public health officials 88 November/December 2002

11 need to make hard choices, particularly in public health emergencies. Individuals whose movements pose a serious risk of harm to their communities do not have a right to be free of interference necessary to control the threat. There simply is no basis for this argument in constitutional law, and perhaps little more in political philosophy. Even the most liberal scholars accept the harm principle that government should retain power to prevent individuals from endangering others. 26 The Supreme Court has been equally clear about the limits of freedom in a constitutional democracy. The rights of liberty and due process are fundamental but not absolute. Justice Harlan in the foundational Supreme Court case of Jacobson v. Massachusetts (1905) wrote: There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. 27 Critics argue, without support from any judicial authority, that the Supreme Court s landmark decision in Jacobson, reiterated by the Court over the past century, is no longer apposite. There is, according to this line of argument, a constitutional right to refuse interventions even if the individual poses a public risk. Yet the courts have consistently upheld compulsory measures to avert a risk, including the power to compulsorily test, report, vaccinate, treat, and isolate, provided there are clear criteria and procedures. 28 Economic libertarianism. Civil libertarians have not been the only group to criticize MSEHPA. Businesses, as well as law and economic scholars, have complained that it interferes with free enterprise. Most economic stakeholders, including the food, transportation, pharmaceutical, and health care industries, have lobbied CLPH faculty and legislators. These groups argue that they may have to share data with government, abate nuisances, destroy property, and provide goods and services without their express agreement. 29 Generally speaking, the model act provides several kinds of powers to regulate businesses: destruction of dangerous or contaminated property, nuisance abatements, and confiscation of property for public purposes. All of these powers have been exercised historically and comply with constitutional and ethical norms. If businesses have property that poses a public threat, government has always had the power to destroy that property. For example, if a rug were contaminated with anthrax or smallpox, government should have the power to order its destruction. Similarly, if businesses are engaged in an activity that poses a health threat, government has always had the power to abate the nuisance. Businesses must comply with all manner of health and safety regulations that interfere with economic freedoms. Those who believe in the undeterred entrepreneur may not agree with health regulations, but the regulations are necessary to ensure that business activities do not endanger the public. Finally, government has always had the power to confiscate private property for the public good. In the event of bioterrorism, for example, it may be necessary for government to have adequate supplies of vaccines or pharmaceuticals. Similarly, government may need to use health care facilities HEALTH AFFAIRS ~ Volume 21, Number 6 89

12 Public Health Law for medical treatment or quarantine of persons exposed to infection. Businesses argue that government should not have broad powers to control enterprise and property. If these powers have to be exercised, businesses want to ensure that they are compensated according to market values. The model act follows a classical approach to the issue of property rights. Compensation is provided if there is a taking that is, if the government confiscates private property for public purposes (such as the use of a private infirmary to treat or isolate patients). No compensation would be provided for a nuisance abatement that is, if the government destroys property or closes an establishment that poses a serious health threat. This comports with the extant constitutional takings jurisprudence of the Supreme Court. 30 If the government were forced to compensate for all nuisance abatements, it would greatly chill public health regulation. In American history and constitutional law, private property has always been held subject to the restriction that it not be used in a way that posed a health hazard. As Lemuel Shaw of the Massachusetts Supreme Judicial Court observed as early as 1851: We think it settled principle, growing out of the nature of well ordered civil society, that every holder of property holds it under the implied liability that it shall not be injurious to the right of the community. 31 Safeguards of persons and property. The real basis for debate over public health legislation should not be that powers are given, because it is clear that power is sometimes necessary. The better question is whether the powers are hedged with appropriate safeguards of personal and economic liberty. The core of the debate over MSEHPA ought to be whether it appropriately protects freedoms by providing clear and demanding criteria for the exercise of power and fair procedures for decision making. It is in this context that the attack on MSEHPA is particularly exasperating, because critics rarely suggest that the act fails to provide crisp standards and procedural due process. Nor do they compare the safeguards in the model act to those in existing public health legislation. It is important to note that compulsory powers over individuals (testing, physical examination, treatment, and isolation) and businesses (nuisance abatements and seizure or destruction of property) already exist in state public health law. These powers have been exercised since the founding of the Republic. MSEHPA, therefore, does not contain new, radical powers. Most tellingly, the model contains much better safeguards of individual and economic liberty than appear in communicable disease statutes enacted in the early to mid-twentieth century. Unlike older statutes, MSEHPA provides clear and objective criteria for the exercise of powers, rigorous procedural due process, respect for religious and cultural differences, and a new set of entitlements for humane treatment. First, the criteria for the exercise of compulsory powers are based on the modern significant risk standard enunciated in constitutional law and disability discrimination law. The act also requires public health officials to adopt the least restrictive alternative. Second, the procedures for intervention are rigorous, following the 90 November/December 2002

13 most stringent requirements set by the Supreme Court, including the right to counsel, presentation and cross-examination of evidence, and reasons for decisions. Third, the act shows tolerance of groups through its requirements to respect cultural and religious differences whenever consistent with the public s health. Finally, the act provides a whole new set of rights to care and treatment of persons subject to isolation or quarantine. These include the right to treatment, clothing, food, communication, and humane conditions. In summary, MSEHPA provides a modern framework for effective identification of and response to emerging health threats, while demonstrating respect for individuals and tolerance of groups. Indeed, the CLPH agreed to draft the law only because a much more draconian approach might have been taken by the federal government and the states acting on their own and responding to public fears and misapprehensions. Rethinking The Public Good Values in the United States at the turn of the twenty-first century could be characterized fairly as individualistic. There was a distinct orientation toward personal and proprietary freedoms and against a substantial government presence in social and economic life. The homeland terrorist attacks in 2001 reawakened the political community to the importance of public health. Historians will look back and ask whether 11 September 2001 was a fleeting scare with temporary solutions or whether it was a transforming event. There are good reasons for believing that resource allocations, ethical values, and law should transform to reflect the critical importance of the health, security, and well-being of the populace. It is not that individual freedoms are unimportant. To the contrary, personal liberty allows people the right of self-determination, to make judgments about how to live their lives and pursue their dreams. Without a certain level of health, safety, and security, however, people cannot have wellbeing, nor can they meaningfully exercise their autonomy or participate in social and political life. My purpose is not to assert which are the more fundamental interests: personal liberty or health and security. Rather, my purpose is to illustrate that both sets of interests are important to human flourishing. The Model State Emergency Health Powers Act was designed to defend personal as well as collective interests. But in a country so tied to rights rhetoric on both sides of the political spectrum, any proposal that has the appearance of strengthening governmental authority was bound to travel in tumultuous political waters. HEALTH AFFAIRS ~ Volume 21, Number 6 91

14 Public Health Law The Center for Law and the Public s Health at Georgetown and Johns Hopkins Universities is supported by Cooperative Agreement no. U50/CCU from the Centers for Disease Control and Prevention. The author gratefully acknowledges the intellectual contributions of many organizations, notably the National Governors Association, National Conference of State Legislatures, National Association of Attorneys General, Association of State and Territorial Health Officials, and National Association of City and County Health Officials. The contents of this paper are solely the responsibility of the author and do not necessarily represent the official views of the CDC or the organizations providing assistance in the development of the model act. The Alfred P. Sloan Foundation provided funding for the development of MSEHPA. The Reforming States Group, comprising leaders of states legislative and executive branches, in collaboration with the Milbank Memorial Fund, provided technical assistance to many states. MSEHPA grew out of the work of the Public Health Statute Modernization National Collaborative of the Robert Wood Johnson Foundation (Turning Point). The Public Health Law Program at the CDC offered critical contributions throughout, particularly Richard Goodman and Gene Matthews. The drafting team for the model act included, in addition to the author, Scott Burris, James G. Hodge Jr., Julie Samia Mair, Jason W. Sapsin, Stephen P. Teret, and Jon Vernick. NOTES 1. K.W. Eilbert et al., Measuring Expenditures for Essential Public Health Services (Washington: Public Health Foundation, 1996). For state-level spending, see Centers for Disease Control and Prevention, Effectiveness in Disease and Injury Prevention Estimated National Spending on Prevention United States, 1988, Morbidity and Mortality Weekly Report 41, no. 29 (1992): For federal-level spending, see J.I. Boufford and P.R. Lee, Health Policies for the Twenty-first Century: Challenges and Recommendations for the U.S. Department of Health and Human Services (New York: Milbank Memorial Fund, 2001). 2. Institute of Medicine, The Future of Public Health (Washington: National Academy Press, 1988). 3. CDC, Public Health s Infrastructure: A Status Report (Atlanta: CDC, 2001). 4. L.M. Bush et al., Index Case of Fatal Inhalational Anthrax Due to Bioterrorism in the United States, New England Journal of Medicine (29 November 2001): Office of Management and Budget, Executive Office of the President of the United States, Budget of the U.S. Government, Fiscal Year 2003, 4 February 2002, (22 August 2002). 6. M.H. Cooper, Weapons of Mass Destruction, Congressional Quarterly (8 March 2002): D.E. Beauchamp and B. Steinbock, eds., New Ethics for the Public s Health (New York: Oxford University Press, 1999). 8. Webster s Third New International Dictionary, Unabridged (1986). 9. The nineteen states are Arizona, Delaware, Florida, Georgia, Hawaii, Maine, Maryland, Minnesota, Missouri, New Hampshire, New Mexico, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wisconsin. 10. IOM, The Future of Public Health. 11. IOM, The Future of the Public s Health in the Twenty-first Century (Washington: National Academy Press, November 2002). 12. Department of Health and Human Services, Healthy People 2010 (Washington: DHHS, 2000). 13. L.O. Gostin and J.G. Hodge Jr., State Public Health Law Assessment Report, April 2002, turningpointprogram. org/pages/phsc%20statute%20assmt.pdf (22 August 2002) See Model State Public Health Act, Draft Document as of May 31, 2002, turningpointprogram.org/ Pages/phsc_MSPH%20Act3.pdf (22 August 2002); and Turning Point, Public Health Statute Modernization National Collaborative, (22 August 2002). 15. J. Gillis, States Weighing Laws to Fight Bioterrorism, Washington Post, 19 November See L.O. Gostin et al., The Model State Emergency Health Powers Act: Planning for and Response to Bioterrorism and Naturally Occurring Infectious Diseases, Journal of the American Medical Association 288, no. 5 (2002): Readers should refer to the specific language of the MSEHPA for the most accurate account. Center for Law and the Public s Health, The Model State Emergency Health Powers Act, as of December 21, 2001, (22 August 2002). 17. L.O. Gostin, Public Health Law Reform, American Journal of Public Health 91, no. 9 (2001): November/December 2002

15 18. L.O. Gostin, S. Burris, and Z. Lazzarini, The Law and the Public s Health: A Study of Infectious Disease Law in the United States, Columbia Law Review 99, no. 1 (1999): K.M. Gebbie, State Public Health Laws: An Expression of Constituency Expectations, Journal of Public Health Management Practice 6, no. 2 (2000): L.O. Gostin et al., The Public Health Information Infrastructure: A National Review of the Law on Health Information Privacy, Journal of the American Medical Association 275, no. 24 (1996): H.H. Horton et al., Critical Biological Agents: Disease Reporting as a Tool for Bioterrorism Preparedness, Journal of Law, Medicine, and Ethics 30, no. 2 (2002): Gostin et al., The Public Health Information Infrastructure. 23. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 24. United States v. Lopez, 514 U.S. 549 (1995). 25. L.O. Gostin, Public Health Law: Power, Duty, Restraint (Berkeley and New York: University of California Press and Milbank Memorial Fund, 2000); and L.O. Gostin, ed., Public Health Law and Ethics: A Reader (Berkeley and New York: University of California Press and Milbank Memorial Fund, 2002). 26. J. Feinberg, The Moral Limits of the Criminal Law, 4 vols. (New York: Oxford University Press, ). 27. Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905). 28. On averting risk, see Washington v. Harper, 494 U.S. 210, 227 (1990) (upholding forced administration of antipsychotic medication if the inmate is dangerous to himself or others and the treatment is in the inmate s medical interest). On compulsory testing, see Skinner v. Railway Labor Executives Ass n, 489 U.S. 601 (1989). On compulsory reporting, see Whalen v. Roe, 429 U.S. 589 (1977). On compulsory vaccination, see Zucht v. King, 260 U.S. 174 (1922). On compulsory treatment, see McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997) (finding that the state s compelling interest in reducing the spread of tuberculosis justifies involuntary treatment). On isolation, see Greene v. Edwards, 263 S.E.2d 661 (1980). 29. S. Lueck, States Seek to Strengthen Emergency Powers: Movement Is Raising Privacy and Civil-Liberties Concerns, Wall Street Journal, 7 January Lucas v. South Carolina Coastal Council, 505 U.S (1992). 31. Commonwealth v. Alger, 7 Cush.53, (1851). HEALTH AFFAIRS ~ Volume 21, Number 6 93