This article was last updated on April 16, 2022
Shortly after the events of September 11, 2001, Professor Larry Gostin, Co-director of the Center for Law and the Public's Health at Georgetown and Johns Hopkins University drafted a proposal for "The Model State Emergency Health Powers Act" or MSEHPA. This act was originally drafted by the Center for Disease Control and Prevention to aid state governments in their response to bioterrorism and, most importantly in this time of the COVID-19 pandemic, control the spread of epidemics. The act was to form a template for state governments to assist them in drafting their own health emergency legislation.
Here is the title page of the document:
The MSEHPA gave state governors sweeping powers during health emergencies under the guise of the government's responsibility to protect "health, safety and well-being of its citizens." Here is a key quote:
"New and emerging dangers—including emergent and resurgent infectious diseases and incidents of civilian mass casualties—pose serious and immediate threats to the population. A renewed focus on the prevention, detection, management, and containment of public health emergencies is thus called for.
Emergency health threats, including those caused by bioterrorism and epidemics, require the exercise of essential government functions. Because each state is responsible for safeguarding the health, security, and well being of its people, state and local governments must be able to respond, rapidly and effectively, to public health emergencies. The Model State Emergency Health Powers Act (the “Act”) therefore grants specific emergency powers to state governors and public health authorities."
The MSEHPA further stated that emergency health threats "…may require the exercise of extraordinary government powers and functions." Let's look at some of those extraordinary government powers that would be granted by the Act:
1.) Tracking of individuals that may be ill:
"The public health authority shall ascertain the existence of cases of an illness or health condition that may be potential causes of a public health emergency; investigate all such cases for sources of infection and to ensure that they are subject to proper control measures; and define the distribution of the illness or health condition. To fulfill these duties, the public health authority shall identify exposed individuals as follows…
1.) Identify the individuals that are thought to have been exposed to an illness that may result in a public health emergency.
2.) Interview the exposed individuals and any other individuals to which the illness may have spread and identify them by name and address.
3.) Examine facilities or materials that may endanger public health and close, evacuate, decontaminate or destroy any facility that may pose a danger.
4.) Enforcement orders issued by public health authorities under this act are enforceable by the public safety authority.
2.) Management and Access to/ Control of Property:
The State government would have the right to "…to inspect, control, restrict, and regulate by rationing and using quotas, prohibitions on shipments, allocation, or other means, the use, sale, dispensing, distribution, or transportation of food, fuel, clothing and other commodities, as may be reasonable and necessary to respond to the public health emergency." It would also have the right "…to control or limit ingress and egress to and from any stricken or threatened public area, the movement of persons within the area, and the occupancy of premises therein, if such action is reasonable and necessary to respond to the public health emergency."
3.) Disposal of Human Remains:
The state government would have the right "…to require any business or facility authorized to embalm, bury, cremate, inter, disinter, transport, and dispose of human remains under the laws of this State to accept any human remains or provide the use of its business or facility if such actions are reasonable and necessary to respond to the public health emergency as a condition of licensure, authorization, or the ability to continue doing business in the state as such a business or facility. The use of the business or facility may include transferring the management and supervision of such business or facility to the public health authority for a limited or unlimited period of time, but shall not exceed the termination of the declaration of a state of public health emergency." When it comes to using the facilities, the following applies "…to procure, by condemnation or otherwise, any business or facility authorized to embalm, bury, cremate, inter, disinter, transport, and dispose of human remains under the laws of this State as may be reasonable and necessary to respond to the public health emergency, with the right to take immediate possession thereof."
All human remains of a person that died of a contagious disease are to be buried or cremated within 24 hours of death.
4.) Medical Examinations and Testing:
"The public health authority may isolate or quarantine, pursuant to Section 604, any person whose refusal of medical examination or testing results in uncertainty regarding whether he or she has been exposed to or is infected with a contagious or possibly contagious disease or otherwise poses a danger to public health."
5.) Vaccinations and Treatment:
"…to prevent the spread of contagious or possibly contagious disease the public health authority may isolate or quarantine, pursuant to Section 604, persons who are unable or unwilling for reasons of health, religion, or conscience to undergo vaccination pursuant to this Section" and "...to prevent the spread of contagious or possibly contagious disease the public health authority may isolate or quarantine, pursuant to Section 604, persons who are unable or unwilling for reasons of health, religion, or conscience to undergo treatment pursuant to this Section."
6.) Isolation and Quarantine:
"Persons subject to isolation or quarantine shall obey the public health authority’s rules and orders; and shall not go beyond the isolation or quarantine premises. Failure to obey these provisions shall constitute a misdemeanor" and "The public health authority may temporarily isolate or quarantine an individual or groups of individuals through a written directive (without notice to those involved) if delay in imposing the isolation or quarantine would significantly jeopardize the public health authority’s ability to prevent or limit the transmission of a contagious or possibly contagious disease to others."
It is also key to note that, under the Act, state national guard units would be deployed to enforce the provisions of the MSEHPA.
By 2002, state legislatures in 34 states had introduced legislative bills based on the MSEPHA and by 2003, the Act had been adopted in whole or part in 20 states and the District of Columbia. On a webpage since removed from the Network for Public Health Law website, they claim that by 2011, 40 states had adopted legislation based on the MSEPHA.
If you are curious, here is a graphic from the Network for Public Health Law showing which states have enacted health emergency powers in light of the COVID-19 pandemic:
Here is a graphic showing the constitutionality of certain COVID-19 emergency responses:
Here is a prime example of a current health emergency response by the City of San Francisco that could be subject to judicial challenge:
The Network for Public Health Law notes the following regarding assembly limits being imposed during the COVID-19 "crisis":
Let's close with this thought. If a government wants to gain total control of its citizens, the use of health emergency plans is the way to accomplish their goal. By using fear, particularly of disease, governments can more easily manipulate and control the masses. There is almost no restriction that impedes the ability of state (and local) governments from imposing medical martial law, legal checks and balances and due process be damned.
And there goes that illusion of freedom.
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