DR.MERCOLA / Model Emergency Health Powers Act Turns Governors into Dictators (MEHPA)

[Guest guest]

-

Mary Anne Poores

Friday, December 28, 2001 11:59 AM

Model Emergency Health Powers Act (MEHPA) Turns Governors into

Dictators

 

>

>Darn good thing we have a Constitution and a Bill of Rights in America ---

>right????????

>Americans have *Freedom* --- right????

>Jackie Juntti

>WGEN idzrus

>____________

>- http://www.mercola.com/2001/dec/26/mehpa.htm -

>

>Model Emergency Health Powers Act (MEHPA) Turns Governors into Dictators

>

>DR. MERCOLA'S COMMENT:

>Since this is a bit of an unusual type of article I thought I would put my

>comment first.

>

>It appears some very dangerous legislation is being prepared to be

>implemented in the US.

>

>If this legislation passes, in brief:

>

>1 - You will have a mandatory vaccination or you will be charged with a

crime

>2 - You will get a mandatory medical exam, or you will be charged with a

crime

>3 - Doctors will give the exam or you will be charged with a crime

>4 - Your property can be seized if there is 'REASONABLE CAUSE TO BELIEVE "

>that it may pose a public health hazard...

>it can be burned or destroyed and you will NOT have recourse or

compensation.

>

>Action Step

>

>You can go to http://www.aapsonline.org/ and click on the Emergency

>Dictatorial Powers act in the left column. Then click on the December

>13th Action Alert which will provide information on how to respond to your

>legislators on this issue.

>

>Additional Resource

>

>- http://www.publichealthlaw.net/ -

>

>Summary

>This Act would:

>broaden government access to private medical records;

>

>greatly weaken protections against the taking of private property without

>compensation;

>

>criminalize refusal to be conscripted for public service or to take

>medical treatment;

>

>potentially increase the risk of infection to many individuals on the

>pretext of protecting the common good;

>

>subjugate scientific analysis and deliberation to the raw assertion of

>power; greatly expand the power of government to interfere with commerce;

>

>and immunize state officials from sanctions against gross abuses of power.

>

>

>Although certain extraordinary government interventions might be warranted

>in a true emergency, the government already has significant emergency

>powers as well as the ability to convene a special session of the

>legislature. It is highly inadvisable to completely suspend our delicate

>system of checks and balances upon the word of a Governor that an

>emergency requires it.

>

>

>This Act, in effect, empowers the Governor to create a police state by

>fiat, and for a sufficient length of time to destroy or muzzle his

>political opposition.

>

>

>The most telling sentence is: " The public health authority shall have the

>power to enforce the provisions of this Act through the imposition of

>fines and penalties, the issuance of orders, and such other remedies as

>are provided by law, but nothing in this Section shall be construed to

>limit specific enforcement powers enumerated in this Act. " Article VIII

>Section 802.

>

>

>It is unlikely that the vast expansion of governmental powers would be

>restricted to combating a smallpox outbreak. Once the precedent is

>established, it could be expanded to other types of " emergencies. "

>

>

>This proposal violates the very principles that its author, Lawrence O

>Gostin, has previously outlined, while giving them lip service. His

>article recommends that " public health authorities should bear the burden

>of justification and, therefore, should demonstrate

>

>(1) a significant risk based on scientific evidence;

>

>(2) the intervention's effectiveness by showing a reasonable fit between

>ends and means;

>

>(3) that economic costs are reasonable;

>

>(4) that human rights burdens are reasonable.... " (see JAMA

>2000;283:3118-3122).

>

>

>Background

>

>HHS Secretary Tommy Thompson is urging State legislatures to adopt the

>Model State Emergency Health Powers Act, prepared by the Center for Law

>and the Public's Health at Georgetown and Johns Hopkins Universities for

>the Centers for Disease Control and Prevention.

>

>This Act grants unprecedented and unchecked powers to the Governors of the

>50 States. It can be downloaded from www.publichealthlaw.net.

>

>It is likely that HHS will tie passage of the Act to billions of dollars

>in federal funding: the usual method of bribery/coercion to get States to

>pass legislation that would otherwise never be considered.

>

>

>Paul Weyrich of the Free Congress Foundation said:

> " Tommy Thompson, whom I have considered a friend for thirty years, should

>be ashamed of himself for advocating this kind of Big Brother

>legislation. This is not the Tommy Thompson we knew as a four-term

>governor of Wisconsin. "

>

>

>HHS is using the 9/11 emergency as a pretext to rush passage of an Act

>that has been in the works for more than a year. Its main author,

>Lawrence O. Gostin, was a member of Clinton's Task Force on Health Care

>Reform, whose secret documents were exposed to public view as a result of

>the AAPS lawsuit (AAPS et al v. Hillary Rodham Clinton et al.)

>

>

>He was a member of Working Group 17, Bioethics, of Cluster V, The Ethical

>Foundations of the New System, and also a member of the informal group

>promoting Single Payer. It is odd that Tommy Thompson should be urging

>adoption of a plan originating with the most extremist left wing of

>Clinton's Health Care Task Force.

>

>

>This legislation is a serious threat to our civil liberties.

>Indeed, " this law treats American citizens as if they were the enemy, "

>stated George Annas, chairman of the Health Law Department at the Boston

>University School of Public Health (San Francisco Chronicle,

>11/25/01). It must be exposed to the light of day in the next month and a

>half.

>

>

> " If protests are sufficient and if conservative legislators in state

>legislatures are properly alerted, perhaps there is a chance to beat back

>this monster, " Weyrich said.

>

>

>Major Provisions

>

>Declaring an Emergency: Under this Act, any Governor could appoint himself

>dictator by declaring a " public health emergency. " He doesn't even have to

>consult anyone.

>

>

>The Act requires that he " shall consult with the public health authority, "

>but " nothing in the duty to consult ... shall be construed to limit the

>Governor's authority to act without such consultation when the situation

>calls for prompt and timely action. "

>

>

>The legislature is prohibited from intervening for 60 days, after which it

>may terminate the state of emergency only by a two-thirds vote of both

>chambers. (Apparently, it does not have the authority to find that the

>state of emergency never really existed.) Article III, Section

>305©. There is also the possibility that the Governor could declare a

>new emergency as soon as his powers were about to expire.

>

>

>What is a public health emergency? It is whatever the Governor decides it

>should be. By the definition in the Act, it could be an " occurrence " -or

>just an " imminent threat " -of basically any cause that involves a

>biological agent or biological toxin that poses a " substantial risk " of a

> " significant number " of human fatalities or disability.

>Article I, Section 104(g). Terrorism need not be involved; any threat of

>an epidemic would suffice.

>

>

>The Act does not define " substantial risk. " Could it mean a 1-in-1,000,000

>chance? Risks of that magnitude are already being invoked as a cause for

>alarm, say of a measles outbreak with transmission through an unvaccinated

>child, and a pretext for removing exemptions to mandatory vaccines. The

>EPA also uses such low (and purely hypothetical) risk as the rationale for

>very costly regulations, so the precedent is well-established.

>

>

>Is a " significant number " five (the number of deaths from anthrax as of

>the date of this writing); 24 (the number of deaths from chickenpox in

>1998 and 1999 combined, 12 of them in persons under the age of 20, used as

>a reason for mandatory childhood vaccination); 100 cases of AIDS; or is it

>thousands of deaths from smallpox, as most readers may assume-or a single

case?

>

>

>It could be any of these because the definition is at the sole discretion

>of the Governor. The most plausible of the dire threats generally cited

>is a smallpox outbreak.

>

>

>However, given the nature of the disease and advanced medicine and

>sanitation, such an outbreak could be contained without any of the extreme

>measures in this Act, just as in the 1970s. (See, for example, " Super

>Smallpox Saturdays? " by Michael Arnold Glueck, M.D., and Robert J. Cihak,

>MD, http://WorldNetDaily.com, Nov.

>15, 2001.)

>

>

>Because of the adverse side effects of the vaccine (including death), more

>harm than good could be done by an ill-advised, unnecessary mass

>vaccination campaign.

>

>

>Patient Privacy Abolished: The Act would impose significant new reporting

>requirements on physicians and pharmacists, further diminishing the

>confidentiality of medical records.

>

>

>Personal identifying information would have to be reported in writing,

>without patient consent, in the event of " an unusual increase " in

>prescriptions related to fever, respiratory, or gastrointestinal

>complaints that might represent an epidemic disease or bioterrorism, or of

>any other illness or health condition that could represent bioterrorism or

>epidemic or pandemic disease. Such conditions are legion.

>

>

>Gostin concedes that his privacy provision is based on his own model

>privacy act of 1999, which apparently no state has adopted. Like the

>Clinton privacy regulations that AAPS is now challenging in court,

>Gostin's view of privacy is to allow unrestricted disclosure to federal

>authorities. Section 506.

>

>

>Unlimited Power: How would the Governor handle the emergency? By whatever

>means he chose. He is under no obligation to use scientifically valid

>methods, or to choose the least destructive method, or to perform any kind

>of risk-benefit analysis.

>

>

>He may suspend any regulatory statute, or the rules of any state agency,

>if they would " prevent, hinder, or delay necessary action. " Article III,

>Section 303(a)(1). Among the laws to be suspended would probably be those

>permitting religious, medical, or philosophical exemptions to mandatory

>vaccines.

>

>

>The Governor may not only utilize all the resources of the State and its

>political subdivisions, but commandeer any private facilities or resources

>considered necessary, and " take immediate possession thereof. Such

>materials and facilities include, but are not limited to, communication

>devices, carriers, real estate, fuels, food, clothing, and health care

>facilities. "

>

>

>Article IV Section 402(a). He may " compel a health care facility to

>provide services, " but it is not clear what means he may use to compel its

>personnel to work (Article IV Section 402(b)), except that any physician

>or other health care provider who refuses to perform medical examination

>or testing as directed shall be liable for a misdemeanor. Article V

>Section 502(b).

>

>

>The Governor may destroy any material or property " of which there is

>reasonable cause to believe that it may endanger the public health. "

>Article IV Section 401(b).

>And while the State shall pay just compensation to the owner of any

>facilities that are " lawfully taken " or appropriated (Article IV Section

>406), there is a huge exception:

>

>

> " Compensation shall not be provided for facilities or materials that are

>closed, evacuated, decontaminated, or destroyed when there is reasonable

>cause to believe that they may endanger the public health pursuant to

>Section 401. " Article IV Section

>406.

>

>

>The Governor is in charge of determining " reasonable cause. " There is a

>strong incentive for him to declare any losses to private owners to be

>noncompensable.

>

>

> " Reasonable cause " might mean " contaminated. " Is the Senate Hart Office

>Building contaminated with anthrax?

>Yes. Should it therefore be destroyed, or subjected to fumigation with

>chemicals that would destroy much of the equipment and furnishings? Most

>think not.

>

>

>The problem is that given a sufficiently sensitive testing method,

>everything is probably " contaminated " with almost everything

>else. Moreover, every testing method has some level of false positives.

>

>

>The late Conrad Chester of Oak Ridge National Laboratory stated that any

>place that has ever supported cattle has anthrax contamination (lecture

>before Doctors for Disaster Preparedness annual meeting, 1996). The same

>probably applies to any land that has supported sheep or goats, or any

>land that has had the wind deposit soil from such an area.

>

>

>In other words, anthrax spores are probably ubiquitous, though at a

>concentration that very rarely causes any harm. Such harm as was done may

>have been misdiagnosed by physicians who were unfamiliar with anthrax and

>not specifically looking for it.

>

>

>Under this law, nothing would stop the Governor from ordering a citizen to

>turn over his house to be used as an isolation facility, and later

>destroying the house on the grounds that it is contaminated. This order,

>like any other, could be enforced at gunpoint by any law enforcement

officer.

>

>

>In a time of public hysteria, fanned by press coverage based on the " if it

>bleeds, it leads " policy, common sense is likely to be an early

>casualty. It is even possible that terrorists-or persons bent on radical

>transformation of society and the American form of government-could

>deliberately raise a false alarm and influence a Governor to take action

>that would result in more damage to freedom than the terrorists themselves

>could ever accomplish.

>

>

>Or radical environmentalists (who haven't, to date, generally had the

>label of terrorist applied to them) could bring about the destruction of

>an activity that they object to (such as logging, cattle ranching, or

>modern farming).

>There are no checks and balances in this Act to prevent such an

>occurrence, and no meaningful accountability for the public officials who

>carry out a basically misguided policy, however destructive.

>

>

>Command and Control: The Act assumes that the best method to use in an

>emergency is force and central control. There is no evidence that force

>works better than leadership, which can bring out the best in citizens

>coming together to meet the crisis, just as firefighters, police, medical

>professionals, hotel owners, and other businessmen did in New York City.

>

>Totalitarianism is not only evil but has had uniformly disastrous results.

>

>Although the world has 40 centuries of experience to show that the effect

>of price controls on the economy is comparable to that of an asteroid

>impact on the earth, the Act empowers the Governor to ration, fix prices,

>and otherwise control the allocation, sale, use, or transportation of any

>item as deemed " reasonable and necessary for emergency response. "

>

>This specifically includes firearms. Article IV Section

>402© and Section 405(b). Moreover, the Governor can simply seize such

>items. Article IV Section 402(a).

>

>The Act grants Governors the exclusive power to control the expenditure of

>funds appropriated for emergencies; the intent and priorities set by the

>Legislature would be irrelevant.

>

>The Governor may delegate powers at his sole discretion to unelected

>political appointees.

>

>Criminalizing Refusal of Medical Treatment:

>The Act empowers the public health authority to decide upon medical

>treatment or immunizations and to impose its view on individuals, who are

>liable for a misdemeanor should they refuse.

>

>Article V Section 504(b). Although it might in some circumstances be

>prudent and justified to quarantine a person who refuses immunization

>during an outbreak, it is tyrannical to criminalize the medical choice to

>decline a treatment.

>

>An immunization or treatment might well cause serious harm to certain

>individuals even if the public health authority does not recognize that it

>is " reasonably likely "

>to lead to " serious harm " -another two important undefined terms. Article

>V Section 504(a)(4).

>

>The Act gives the public health authority the right to isolate or

>quarantine a person on an ex parte court order, with no hearing for at

>least 72 hours. If the public health authority decides that an

>unvaccinated person is a risk to others, even if uninfected, he could be

>quarantined.

>

>Article V Section 503(e). It is quite possible that public health

>authorities could force such a person from his home to a place of

>quarantine, where he will be exposed to infected persons. Such places

>shall be maintained in a safe and hygienic manner " to the extent

>possible, " and " all reasonable means shall be taken to prevent the

>transmission of infection among isolated or quarantined individuals. "

>

>Article V Section 503(a). The Act itself thus implies that an uninfected

>person is at risk by being placed in such a facility; it is quite likely

>that he could be at greater risk than if he had the freedom to protect

>himself as he saw fit. It is assumed that public health authorities will

>be " reasonable " ; however, this assumption is questionable.

>

>Even now, children not vaccinated against hepatitis B are being excluded

>from school even though there is NO risk that an uninfected child can

>transmit the disease and a minuscule risk that he can acquire the disease

>at school.

>

>Zero Accountability: If the State does more harm than good through

>unfettered use of its draconian power, it can rely on the state immunity

>clause:

>

> " Neither the State, its political subdivisions, nor, except in cases of

>gross negligence or willful misconduct, the Governor, the public health

>authority, or any other State official referenced in this Act, is liable

>for the death of or any injury to persons, or damage to property, as a

>result of complying with or attempting to comply with this Act or any rule

>or regulations promulgated pursuant to this Act. "

>

>

>Article VIII Section 804.

>

>Note that the law would grant certain immunities even for deaths

>improperly caused, and allows such immunity even for advisors who made

>recommendations based on conflicts of interest.

>

>An Alternate Proposal

>

>Although this Act should be rejected, there are certain measures that

>State governments might want to consider:

>

>A reevaluation of the procedures for effectively quarantining persons who

>are a significant demonstrable risk to others, while preserving due

>process and substantive rights;

>

>Improving overall preparedness for attacks with weapons of mass

destruction:

>

>

>upgrading and expanding facilities for the prompt detection and

>identification of infectious agents, toxins, chemical weapons, and

>radioactivity;

>

>evaluating and augmenting State and local supplies of vaccines,

>antibiotics, protective gear for first-responders and medical personnel,

>isolation facilities for treatment of casualties, shelters against

>radiation, potassium iodide, other essential equipment and supplies, and

>information on self-protection available for rapid public distribution;

>

>Measures to protect private citizens, including physicians, against civil

>liability resulting from efforts to aid others in an emergency (suggested

>in Article VIII Section 804);

>

>Permitting the State to waive certain licensure requirements for the

>duration of the emergency to permit recruitment of additional personnel

>(Article V Section 507(a)); and

>

>Suspending State, federal, or local regulations or ordinances that

>interfere with prudent response to an emergency while providing no

>scientifically proven significant benefit, subject to ultimate review and

>rescission or post-emergency resumption without retroactive penalties,

>based on scientifically valid methods.

>

>

>There are many EPA requirements, for example, that are not based on good

>scientific evidence and could be disastrous in a real emergency. At the

>time of the World Trade Center fire, the EPA had to acknowledge that

>asbestos controls were totally excessive, in order to prevent a public

>panic about inhaling the white dust.

>(Indeed the ban on the use of asbestos above the 64th floor might have

>hastened if not caused the collapse of the buildings-see Jon Dougherty,

>http://WorldNetDaily.com, November 20, 2001).

>

>

>The ban on DDT (imposed despite the overwhelming preponderance of

>scientific advice and evidence opposed to this action) would severely

>inhibit the containment of an outbreak of mosquito or other insect-borne

>diseases.

>

>

>The ban on incinerators because of exaggerated concerns about

>insignificant releases of dioxins would prevent the safest and most

>expeditious method of destroying dangerously contaminated materials.

>

>

>Conclusions

>

>States can and should improve their ability to respond to disaster,

>including bioterrorism. However, having the Governor play doctor and

>dictator is not the right response. Citizens should distribute

>information about the actual content of the Model Emergency Health Powers

>Act to opinion leaders, newspaper editors, columnists, the Chamber of

>Commerce, business groups, medical society officials, legislators, and the

>Bush Administration.

>

>

>Action Step

>

>You can go to - http://www.aapsonline.org/ - and click on the Emergency

>Dictorial Powers act in the left column. Then click on the December 13th

>Action Alert which will provide information on how to respond to your

>legislators on this issue.

>

>

>Additional Resource

>

>- http://www.publichealthlaw.net/ -

>