Critics Rage as State Prepares for Flu Pandemic

Richard T. Moore (D-Uxbridge), Senate Chairman of the Legislature’s Joint Committee on Health Care and the Special Senate Committee on National Health Reform, writes that the latest target of anti-government advocates is Senate Bill No. 2028, a pandemic and emergency preparedness plan that gives officials authority to quarantine individuals if necessary:

This summer, vividly and loudly dominating our TV news and print media, America witnessed a raucous display of distrust of our own elected government in the health care town hall meetings. The President and Congress are seeking to expand access to affordable health insurance, and therefore health care, to all Americans. But some of our fellow citizens, skeptical of anything government does, demonized those who tried to explain the proposals before Congress and shouted down explanations rather than engage in a reasonable discussion of the problems and possible solutions.

The anger over health reform efforts by the national government to help Americans expand their right to life, health and happiness has, apparently spilled over to Massachusetts in the form of anger at efforts under discussion in the state government to protect the rights of all citizens during a time of public health emergency. For more than a century, government has had extraordinary powers to respond to an epidemic, and it has generally exercised those powers responsibly. However, legislation aimed at modernizing and refining those powers to preserve individual liberty while protecting everyone from epidemic has been seen by some as more “big brother” government.

“Life, liberty, and the pursuit of happiness” is one of the most famous phrases in America’s Declaration of Independence. These three aspects, which are listed among the inalienable rights that we all enjoy, are based on the writings of English philosopher John Locke. Locke expressed the fundamental belief that “no one ought to harm another in his life, health, liberty, or possessions.”

However, just saying the words doesn’t guarantee that we have, or can keep, these rights. Each of us must stand up for our rights and the rights of others. In our democracy, we expect our government to preserve, protect, and defend those rights.

Around September 11 each year since 2001, we remember events when a small group of terrorists tried to take those rights away. In fact, they did deprive several thousand innocent civilians and dedicated emergency responders of their lives, health, liberty and possessions. A few months later, one or more individuals tried, once again, to deprive Americans of their inalienable rights when letters containing the deadly Anthrax was mailed to media and government offices. Some postal workers who handled those letters became ill and died.

Most of us believe that our government has, or should have, the authority and the responsibility to take necessary actions to protect us from those who are intent on harming or killing us or depriving us of our liberties. We also expect that our government will take steps to protect us and our loved ones from the spread of deadly viruses or the consequences of natural disasters, even if protecting all of us might temporarily limit our individual freedoms. After all, while we all have basic rights as Americans, most of us understand that we also have a fundamental responsibility not to harm anyone by our individual actions or decisions.

We have conferred on our government the resources and the authority to protect us when society is threatened as with the threat of a major disease epidemic on the magnitude of the Great Influenza Epidemic. That epidemic killed thousands of Massachusetts residents in 1918. In recent months, there have been numerous reported cases of a virus called H1N1, or Swine Flu, that have renewed health concerns and we expect our government to offer protection.

Although Massachusetts, and other state governments, has the authority to require us to be vaccinated, no one has proposed that vaccination for any flu be mandatory. Certainly, there is no H1N1 vaccine currently approved for use, but even when a vaccine becomes available no one is planning to require that we all get vaccinated. Nevertheless, under existing law – upheld as constitutional by the U.S. Supreme Court in the landmark case of Jacobson v. Massachusetts [197 U.S. 11 (1905), mandatory vaccination is deemed “a legitimate exercise of the state’s police power to protect the public health and safety of its citizens.” The state has the authority to vaccinate, but has stated that it will not mandate such action in the case of H1N1.

In an effort to protect all of us from any arbitrary abuse of this authority, legislators and public health experts began to review state public health emergency laws in 2001 following the Anthrax experience. Leading legal and public health scholars from around the nation worked under the guidance of the Georgetown Law School Center for Public Health Law along with public health experts from Johns Hopkins University Medical School to draft a model act to guide state efforts to update public health laws that, in most cases, had not been reformed since the 1918 Influenza Epidemic. To date 45 states have introduced bills in their legislatures based in whole or in part on the Model State Emergency Health Powers Act, and 38 states have passed those bills, including many Northeast states. The Act has become one of the most widely used models for public health legal reform ever.

In Massachusetts, the Department of Public Health, the Massachusetts Medical Society, the Massachusetts Hospital Association, the Massachusetts Public Health Association, and others have been working with legislators for the past eight years to craft a bill to update public health emergency preparedness statutes in light of the views of today’s society. As the bill has been developed, it has had several well-attended public hearings and formal debate in both branches of the Legislature. It has been improved with each responsible criticism. The bill under consideration attempts to narrow the current broad state public health authority to protect individual liberties while protecting the rights of all citizens in the spirit that John Locke espoused that “no one ought to harm another in his life, health, liberty, or possessions.”

Contrary to what some have been saying in the media and in blogs, the bill – Senate Bill No. 2028 – does NOT mandate vaccination. It does say that if public health officials believe that vaccination is the recommended prevention measure, and someone does not want to be vaccinated to protect themselves and those around them, the public health officials MAY order that they be isolated or quarantined. While some states ordered quarantines last spring because of H1N1 virus, Massachusetts health officials did not. In fact, throughout the last century, public health officials have used their emergency powers sparingly and responsibly.

The “Pandemic Public Health Emergency Preparedness” bill would allow arrest or entry into property for violations of quarantine, but only if there is “probable cause.” This is a high standard defined by numerous court decisions over the years, and those officials who abuse or ignore that standard get into serious trouble. The bill actually sets a framework of standards in place to narrow the sweeping emergency powers that are already in place so that individuals have legal protection from abuse by any government official. While some who distrust any government are opposing passage of this bill, if they fully understood its purpose and studied the bill in the context of existing law, they ought to be calling for its swift passage rather than protesting and demonizing those who advocate for the law.

Admittedly, no law is perfect or is universally applicable regardless of the circumstances. We are all subject to the errors of being human. Therefore, if there are legitimate concerns with the bill, they can be considered in the coming weeks as the Massachusetts House debates the issue. Even if the bill is passed and signed by the Governor, the bill – as with most complex legislation – will need to have regulations drafted to implement its provisions, and public hearings will give people another opportunity for input. The facts are that those of us who are advocating responsible public health emergency preparedness are not acting out of any nefarious, “big brother” mentality, but out of a genuine concern for protecting the health and lives of all citizens without arbitrary restrictions on the rights of any one citizen. Debate on the issue should focus not on personal and slanderous attacks on individuals, but on the merits of the legislation. A debate on the merits and the substantive issues is another American right, outrageous personal attack against others is not a respected means of dissent – at least not up to now in America!

This program aired on September 11, 2009. The audio for this program is not available.

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Rachel Zimmerman Reporter
Rachel Zimmerman previously reported on health and the intersection of health and business for WBUR. She is working on a memoir about rebuilding her family after her husband’s suicide. 



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