Model State Emergency Health Powers Act
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Dear PROVE Members,
Here is some testimony that I submitted to the Texas House Committee on
Civil Practices yesterday considering a review of proposed federal agency
terrorism responses. Of course we are deeply concerned about language
contained in the Model State Emergency Health Powers Act. We are very
grateful to The American Legislative Exchange Council, The Association of
American Physicians and Surgeons, and the National Vaccine Information
Center who quickly responded to our request for assistance for testimony. I
am including our national members on this note so you can watch for this in
your state and have the benefit of this excellent information provided by
these organizations. Texas members - lets be ready to fight this here.
April 3, 2002
Dear Members of the Civil Practices Committee,
Hello. My name is Dawn Richardson. I am the president and director of
Parents Requesting Open Vaccine Education, PROVE. PROVE is a state
non-profit grassroots association of over 3000 families concerned about
vaccine safety, medical privacy, and the right to informed consent for
This compilation of testimony is submitted in response to your request for
public testimony for interim charge number 3:
3. Review changes in federal laws and law enforcement procedures, as well as
recommendations from state and national agencies charged with homeland
protection, to assess the need for changes in state civil laws to protect
life and property and to detect, interdict and respond to acts of terrorism.
Unfortunately, there have been coordinated accelerated efforts by federal
public health authorities to use the public's recent genuine, legitimate
health and safety concerns arising out of the events of September 11th to
further a pre-existing agenda for more bureaucratic control of our private
health information and our medical treatment.
This has never been more evident than in the Centers for Disease Control's
Model State Emergency Health Powers Act. PROVE is strongly opposed to the
offensive measures outlined in this proposed legislation. We have requested
that three national well-known and highly respected organizations with
strong Texas memberships prepare testimony specifically for your educational
benefit and to become part of the public record.
These organizations are:
1.) The American Legislative Exchange Council
2.) The Association of American Physicians and Surgeons
3.) The National Vaccine Information Center
As you go forward next legislative session preparing to address this
important issue, we respectfully urge you to keep in mind that no state of
emergency in a free society justifies such a blatant disregard for the
rights of individuals.
Dawn Richardson, President
POWER GRAB: THE STATES IN A STATE OF EMERGENCY
THE MODEL EMERGENCY HEALTH POWERS ACT
Statement Submitted by Jennifer King, Director,
Health and Human Services Task Force
American Legislative Exchange Council
April 3, 2002
Since the tragic attacks of September 11, all levels of government have been
forced to access their ability to respond to future events, including
chemical and biological attacks. While it is difficult to anticipate acts of
terror, it is wise for states and localities to examine existing laws and
procedures to determine points of weakness in rapid response scenarios.
The Centers for Disease Control and Prevention (CDC), in collaboration with
a number of groups, has drafted model legislation to provide, in its words,
a public health framework for future bioterrorist attacks. This
legislation, innocuously titled the "Model State Emergency Health Powers
Act" (MEHPA), contains a number of provisions that grant state
government-governors in particular-with broad, new police powers. The
legislation should raise concerns of free-market health care advocates and
defenders of liberty.
The MEHPA went public on October 30, 2001, when the U.S. Department of
Health and Human Services (HHS) issued a press release heralding the
introduction of MEHPA. The MEHPA, according to a statement by HHS Secretary
Tommy Thompson, "is an important tool for state and local officials to
respond to bioterrorism and other public health emergencies." The statement
said that the goal of the MEHPA is to "develop a consensus-based model
legislation to assist states that are considering new emergency public
Despite this seemingly innocuous description, the American Legislative
Exchange Council (ALEC) has a number of concerns about the MEHPA and
recommends that all legislators seriously consider the impact of this
legislation before taking immediate action. ALEC is the nation's largest
bipartisan organization of state legislators committed to the Jeffersonian
principles of free markets and limited government.
Below is a discussion of the key features of the bill and ALEC's concerns
I. Declaration of Emergency.
The text of the bill is premised on the ability of the Governor to declare a
state of emergency once there is a threat or an attack on the public health.
Specifically, the text allows a Governor to declare such state "if the
Governor finds an occurrence or imminent threat of an illness or health
condition, caused by bioterrorism, epidemic, or pandemic disease, or novel
and highly fatal infectious agents or biological toxins, that poses a
substantial risk of a significant number of human fatalities or incidents of
permanent or long-term disability" (MEHPA, Section 301). However, words
such as "substantial" and "significant" are not defined in the legislation,
but "infectious disease" is defined as a disease caused by a living organism
There are two major problems with this section of the bill that foreshadow
the problems with the remaining thirty-nine pages of text. First, all
Governors already have the power to declare a state of emergency under
existing natural disaster statutes. So the powers granted under MEHPA are
duplicative and unnecessary. Moreover, once such state is declared, all
existing statutes are preempted-so chaos may rule. Second, the vagueness of
the language and lack of definitions of key terms leaves too many questions
unanswered. Could a Governor impose a state of emergency for non-terrorism
related public health outbreaks, like AIDS or chicken pox? Aren't all
infectious diseases caused by living organisms?
Most unusual is the fact that there are no provisions for judicial or
legislative review of the emergency declaration. In fact, the legislature is
pointedly prohibited from reviewing the declaration for 60 days. After that
time, the legislature can override the declaration by a 2/3 vote of both
chambers. Thus, the role of the legislature-the representatives of the state
's citizens-is effectively meaningless since it is only allowed to override
a decision after it has been in effect for two months.
II. Reporting/Tracking/Information Sharing
One of the other more alarming aspects of MEHPA is the blatant disregard for
personal privacy and individual liberties. While the Act supposedly makes
an effort to provide due process and claims to protect individual rights, it
actually contains a number of provisions that make privacy advocates cringe.
The MEHPA requires all health professionals to report suspected incidents of
terrorism-this is typical under existing public health statutes. MEHPA
further requires all pharmacists to report "unusual" prescribing practices
or "unusual trends in pharmacy visits" (Section 201). While some states
already require similar reporting, what is not defined is what is "unusual".
Moreover, what is dangerous about MEHPA is what is required to be reported
to the public health commissioner. Instead of providing aggregate or
generalized data, a pharmacist must report a patient's name, date of birth,
sex, race, current address, address and name of health care provider, and
"any other information needed to locate the patient for follow-up"(Section
201). It seems hard to justify the need for all of this personal
information if a person simply purchases some aspirin or Kaeopectate from
the pharmacy, when it just so happens that "too many" others have purchased
those products in the same time frame.
As noted above, personal privacy is sacrificed in the MEHPA, presumably in
the interest of the common good. MEHPA requires all information gathered
by health professionals and pharmacists to be reported to the public health
authority, which is then charged with tracking all such information. MEHPA
further allows for the disclosure of patient records to "persons who have a
legitimate need" (Section 506). Again, "legitimate need" is not defined in
The bill also authorizes the sharing of information between the public
health and public safety officials. It is important to take stock of the
broad new powers granted to the public health officials under MEHPA. These
health commissioners are unelected and therefore have little or no
accountability to the public, yet they are arguably as powerful as the
Governor under MEHPA. Police officers are actually placed under the
authority of public health officials.
III. Confiscation and Rationing of Personal Property
Perhaps the most dangerous and unprecedented provisions of the MEHPA include
those allowing for the confiscation and/or destruction of personal property.
Section 402 of the legislation expressly provides for the procurement and/or
use of facilities and materials, including health care facilities. More
importantly, it includes provisions allowing the government to ration such
items as "food, fuel, clothing, and other commodities, alcoholic beverages,
firearms, explosives, and combustibles..." The bill authorizes compensation
for the taking of any facilities or materials lawfully taken in accordance
with the Act, but provides no compensation for facilities destroyed while
responding to an emergency situation.
Still, the rationing of items such as food and firearms seems ludicrous,
and, once again, is unjustified. It is hard to a imagine provision that
more flagrantly violates our constitutional right to bear arms. In
addition, the ability of the state to take over our lives in such manner
presumes the ignorance of the private sector and the American people, and
the superiority of the government.
IV. Mandatory Vaccines, Examinations, and Quarantines
MEHPA allows public health officials to force citizens to submit to physical
examinations and testing and mandatory vaccination, under penalty of a
misdemeanor. There are few exceptions to these provisions, including no
religious or philosophical exemption for opting out of vaccination. The
only reason a person may be exempted from the vaccination requirement is if,
in the ever-vague MEHPA language, "the public health authority has reason to
know that a particular individual is likely to suffer from serious harm from
the vaccination" (Section 504 (a)(2)).
Also unanswered in the MEHPA is the question of the priority of vaccination
and other health care under an emergency situation. The bill allows for
rationing of items and for government distribution, but gives priority to
public health staff, including health care providers, disaster response
personnel, and mortuary staff (Section 405).
Another key vaccine provision of the bill allows the public health authority
to ration product, whether or not the public health authority has purchased
that product. Further, the public health authority may "control, restrict,
and regulate by rationing and using quotas, prohibitions on shipments, price
fixing, etc." (Section 405). Once again, we see the private market and the
legislative branch subverted by the state, as public health authorities may
determine who gets what drugs when "without any additional legislative
authorization" (Section 405 (a)).
The final major provision of concern in MEHPA is the ability of the state to
quarantine individuals. While some states certainly have antiquated
quarantine laws dating back to the early 1900's, the MEHPA effectively sets
up "camps" of infected and possibly uninfected individuals. Yes, the MEHPA
establishes "due process" for determining who should be placed in these
camps, but the "due process" outlined in the bill would probably impede the
ability of the state to respond adequately to a real crisis. In addition,
the need for such camps is unproven and the camps envisioned in MEHPA would
likely require the use of force to be established. Americans cherish their
right to freedom and certainly would balk at being herded into quarantine en
Currently, certain communicable diseases require quarantine either at home
or in a hospital setting. Nothing would prevent such "voluntary" quarantine
from occurring under a bioterrorist attack. What would be more useful than
the camps envisioned in MEHPA would be thorough community education on when
people should stay at home or when they should seek medical assistance.
Also more useful than MEHPA's provisions would be greater training for
disaster response teams who would be able to treat a large infected
population on-site rather than setting up quarantine camps.
While some may argue that the MEHPA is well intentioned, the first
legislative finding listed in Section 102 of the bill summarizes the intent
of the bill. The finding reads: "The government must do more to protect
the health, safety, and well-being of our citizens." It is clear from these
first words of MEHPA that the intention of the drafters is to push Americans
closer to government-run health care, and to do so in the name of the common
good. The MEHPA blatantly ignores the key role of the private sector and of
individuals in responding to crisis situations, and assumes Americans should
rely instead on the government.
Statement to the Committee on Civil Practices
Texas House of Representatives
By the Association of American Physicians and Surgeons
1601 N. Tucson Blvd. Suite 9
Tucson, AZ 85716
April 3, 2002
Concerning the Model Emergency Health Powers Act
AAPS is a national association of thousands of physicians in all
specialities, founded in 1943 to preserve and promote private medicine, in
which physicians are bound by the Oath of Hippocrates to prescribe for the
good of their patients, according to the best of their ability and
judgment-and to do no harm.
We agree entirely with the excellent statement submitted by Jennifer King of
the American Legislative Exchange Council concerning the effects of this
Act. Many of these concerns are also echoed in our analysis of the original
and revised Model Act, posted at www.aapsonline.org, under
Here we would like to focus on the provisions of the Act that would force
physicians to administer, and patients to submit to, vaccines and treatments
ordered by state authorities without informed consent and/or contrary to the
physician's own best judgment. We also object to the provisions for mass
quarantine, which could result in serious assaults on civil liberties
despite the evidence from history that less extreme measures would be more
effective and less harmful (Barbera et al, JAMA 2001;286: 2711-2717).
Medical issues that legislators need to consider include the following:
1. The only contagious disease that is a credible biological warfare
threat?and for which a reasonably effective vaccine exists?is smallpox.
(Anthrax is not very contagious from person to person.)
Yet this disease is not mentioned by name in the Model Act; public health
officials could use emergency powers to force any vaccine on people. In an
outbreak of measles or whooping cough, with several dozen cases, is an
unvaccinated child a "danger to public health"? The answer could be dictated
by bureaucratic fiat, invalidating all vaccine exemptions, including medical
and religious ones, overriding all the checks and balances of representative
government?legislative, executive, and judicial.
2. There are many scientifically valid arguments against mass smallpox
immunization campaigns. The vaccine is known to cause serious adverse
effects, including death.
3. The strain of smallpox chosen for a biological attack might be resistant
to the vaccine. Inspectors visiting a Biopreparat facility in the former
Soviet Union in 1991 were not allowed to don space suits and enter a
bioweapons explosion test chamber because their smallpox vaccination might
not have been protective. Thus, an entire population could be subjected to
the dangers of mass vaccination while reaping no benefit at all.
4. Public health officials are not omniscient. They were silent as the World
Health Organization destroyed tens of millions of doses of smallpox vaccine
in the 1990s for want of $25,000 per year to buy electricity for the storage
freezers. They were in denial for decades about the intensive ongoing
research on the weaponization of smallpox. While 100 tons of weaponized
smallpox was being manufactured annually in the Soviet Union, they
discontinued vaccination entirely, congratulating themselves on the
eradication of this plague. "What was then considered a triumph has now
become our problem," writes Anthony S. Fauci of the National Institute of
Allergy and Infectious Disease in an article to be published in the April
25, 2002, issue of the New England Journal of Medicine.
5. While herd immunity may be cited as the compelling reason for mass
immunizations, it is achieved without vaccinating 100% of a population.
Fallible human beings should not be imposing medical treatments on unwilling
citizens at gunpoint, or with threats of taking children from their parents,
or with other coercive measures ? obliterating informed consent and due
process of law. Medical consequences ? as well as the consequences for the
American system of government ? could be disastrous.
We believe that forced treatment or immunization should not be included in
any emergency powers act. Moreover, any declaration of a state of emergency
should be voided unless ratified by the state legislature as soon as it can
be called into session.
In improving emergency preparedness, States should emphasize abilities to
mitigate the situation, not powers to seize, commandeer, coerce, punish, and
disrupt. Better laboratories with surge capacity; stockpiles of vaccines,
drugs, medical equipment and supplies, protective gear; and decontamination
equipment; and improved training of both officials and citizens would all be
very helpful, but are not part of the Emergency Health Powers Act.
Submitted by Jane M. Orient, M.D., Executive Director
Barbara Loe Fisher, Co-founder & President
National Vaccine Information Center (NVIC)
Submitted By Dawn Richardson, Texas Coordinator for NVIC
Texas House Committee on Civil Practices
Response to Request for Public Testimony on Interim Charge #3
April 3, 2002
State Capitol Extension, E2.026
Dear Members of the Civil Practices Committee,
The National Vaccine Information Center is a 40,000 member national,
non-profit organization with members in Texas. We oppose the National
Centers for Disease Control's Model Emergency Health Powers Act.
Certainly, America and the state of Texas should have a sound, workable
emergency plan in place in the event of a bioterrorism attack, but not one
that places the life and liberty of the majority of citizens in the hands of
an elite few, who will have the power to take both from citizens without
their consent. Giving workers employed by the state the power to use the
state militia to arrest, quarantine and forcibly vaccinate and medicate
Texas citizens without their having the right to legal counsel or recourse
before it is done has the potential for creating the same kind of terror and
chaos that this type of is supposed to be preventing. This will be
particularly true if the bioterrorism vaccines or medications are
experimental and have not been subjected to normal federal licensing
standards and the public is aware that these vaccines and medications carry
significant risks for injury and death, especially for those who are
genetically or otherwise biologically at risk for reactions.
Is the state of Texas prepared to take moral, legal and financial
responsibility for vaccine or medication-induced death and injury forced on
citizens without their voluntary consent, specially forced on children
without their parent's informed consent?
This proposed law being promoted by the CDC for states like Texas to
consider violates the informed consent principle which has governed the
ethical use of medical interventions that can injure or kill ever since the
Doctor's Trial at Nuremberg after World War II. We maintain that no state of
emergency in a free society justifies the sacrifice of the most sacred human
right: the right to voluntarily decide what you are willing to risk your
life or your child's life for. What it means to be free doesn't get more
basic than that. This proposed law is a direct assault on the civil
liberties and freedoms protected by the Constitution and is a dangerous
precedent for a nation that has always valued individual life and rejected
any form of state sponsored repression under any circumstances.
We urge you to review your existing state public health laws which are
already strong enough to responsibly handle any public health emergency
without violating basic civil and human rights.