From: "Jim Walters"
Greetings,
I usually don't send out anything as large as what I've posted below,
but this is very important stuff. I received it from Dr. Mercola, M.D.
I have heard rumors about this for a month or so, but I never thought
our government would attempt anything this absurd.
The recent terrorist activities have allowed our politicians to attempt to
enact legislation that would never even be considered if people weren't
already panicked. This is Nazi Germany type legislation!!
I urge you to sign the petition to George W. Bush from the AAPS (below)
Then, pass this article on to everyone you know, especially your
state legislators. This needs to be stopped ASAP!!
Jim Walters
Association of American Physicians and Surgeons, Inc.
http://www.aapsonline.org/alerts/petition.php
Sign Petition Against Model Legislation - 11/30/2001
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/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/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
http://www.publichealthlaw.net/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(c). 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/
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(c) 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/
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/
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