Federal health authorities could exercise authoritarian powers to control an Ebola outbreak if the deadly disease hits the United States under the Model State Emergency Health Powers Act, legislation passed in the wake of 9/11 which attracted controversy at the time for its draconian scope.
With the Ebola outbreak in West Africa having been declared the worst in history by the World Health Organization, concerns are mounting that the disease could spread via international air travel. Asked whether the virus could arrive in the United States, CNN Chief Medical Correspondent Dr. Sanjay Gupta said, “It’s going to happen at some point.”
The Model State Emergency Health Powers Act, drafted during the 2001 anthrax attacks, has since been adopted in whole or in part by 33 states. The Association of American Physicians and Surgeons warned that the legislation “could turn governors into dictators,” while constitutional lawyer Phyllis Schlafly labeled it “an unprecedented assault on the constitutional rights of the American people.”
Describing the legislation as a “threat to fundamental rights,” the Heritage Foundation summarized a list of ways the law would be applied in the event of a public health emergency being declared.
Under the legislation, public health authorities and governors would rely on expanded police powers to;
- Force individuals suspected of harboring an “infectious disease” to undergo medical examinations.
- Track and share an individual’s personal health information, including genetic information.
- Force persons to be vaccinated, treated, or quarantined for infectious diseases.
- Mandate that all health care providers report all cases of persons who harbor any illness or health condition that may be caused by an epidemic or an infectious agent and might pose a “substantial risk” to a “significant number of people or cause a long-term disability.” (Note: Neither “substantial risk” nor “significant number” are defined in the draft.)
- Force pharmacists to report any unusual or any increased prescription rates that may be caused by epidemic diseases.
- Preempt existing state laws, rules and regulations, including those relating to privacy, medical licensure, and–this is key–property rights.
- Control public and private property during a public health emergency, including pharmaceutical manufacturing plants, nursing homes, other health care facilities, and communications devices.
- Mobilize all or any part of the “organized militia into service to the state to help enforce the state’s orders.”
- Ration firearms, explosives, food, fuel and alcoholic beverages, among other commodities.
- Impose fines and penalties to enforce their orders.
As we highlighted yesterday, the Centers for Disease Control and Prevention (CDC) has measures in place for dealing with an outbreak of a communicable disease which allow for the quarantine of “well persons” who “do not show symptoms” of the disease.