The following article appeared in the Opinion section of the Los Angeles Times on November 4, 2001.Since one of its authors, Lawrence O. Gostin, is also the principal author of the Model State Emergency Health Powers Act, released on October 23, 2001 and available on the U.S. Centers for Disease Control's "Center for Law and the Public's Health" website, http://www.publichealthlaw.net, the article offers important insights into just how far Dr. Gostin (doctor of law, not medicine!) intends the proposed law to reach.
The article essentially contrasts an alleged golden age of public health politics in the U.S. which according to Gostin's analysis extended from the 18th century to the end of World War II, in which federal, state and local government gave public-health officials broad and unilateral authority to combat whatever disease threats they defined and a modern age in which what he sees as an unreasonable concern for individual rights and patient autonomy, as well as a complacency based on the success of prior public-health measures and antibiotic treatments, blocked doctors and other public-health officials from being able to take the kinds of robust public-health measures their forebears had. Though Bloche and Gostin did not write the Times subhead to their article, Choice trumps common good, it accurately sums up their argument that people s autonomy in making their own medical decisions needs to be drastically reduced, especially in cases of so-called public health emergencies.
In their response to the draft of the Model State Emergency Health Powers Act (written as an open letter to Gostin and dated November 7, 2001), director Janlori Goldman and senior counsel Joanne L. Hustead of the Health Privacy Project http://www.healthprivacy.org raised the question of whether the provisions of the Model Act relating to epidemic and pandemic diseases (terms nowhere defined in the text of the Model Act) were intended to apply to HIV and AIDS.
The Bloche/Gostin article below leaves no doubt that the draft is fully intended to apply to AIDS. Not only is AIDS specifically mentioned as one of the five potential health threats which Bloche and Gostin claim demonstrate the need for the proposed legislation (along with multidrug-resistant tuberculosis, West Nile Virus, smallpox and Ebola), but they specifically cite the public-health response to AIDS in the 1980's and 1990's as a negative example of a policy in which individuals' rights were allowed to trump the common good as expressed by authoritarian measures taken by public-health officials: AIDS activists battled successfully for public-policy responses that intruded minimally on personal autonomy and privacy. The AIDS paradigm for coping with a public health crisis treated government as more of a threat than a solution.
While Bloche and Gostin do not specificially state what they think the public health response towards AIDS should have been, had the provisions of Gostin's Model Act been in effect during the 1980's and 1990's they could have been used to accomplish the AIDS policy objectives of the radical Right during that time, including requiring all members of so-called at-risk populations for HIV to present themselves for HIV antibody testing. requiring reporting of all HIV antibody test results, requiring all reported HIV-positives to present themselves for mandatory treatment and quarantining or isolating HIV-positives who repeatedly engaged in unprotected sex.
The relevant passages of the Model Act (soon to be introduced as proposed legislation in California, Massachusetts and several other states) regarding quarantine and isolation are set forth in Article V, Special Powers During State of Public Health Emergency: Control of Persons. Section 501, Control of Individuals, reads: During a state of public health emergency, the public health authority shall use every available means to prevent the transmission of infectious disease and to ensure that all cases of infectious disease are subject to proper control and treatment.
Section 502, Mandatory Medical Examinations, reads in part: The public health authority [meaning a state or local health department] may exercise, for such period as the state of public health emergency exists, the following emergency powers over persons to compel a person to submit to a physical examination and/or testing as necessary to diagnose or treat the person [or] to compel a person to be vaccinated and/or treated for an infectious disease.
What is most chilling about the Model Act is that nowhere in its provisions on quarantine and isolation is there any requirement that the persons being quarantined or isolated actually have a disease. This raises the spectre that under the declaration of a Public Health Emergency (which every large city in California has made with regard to HIV and AIDS), persons could be quarantined or isolated not for being sick themselves, but for expressing different scientific points of view about the causes of diseases or the efficacy of treatments for them.
Already the AIDS establishment routinely defines dissent from the HIV/AIDS model as dangerous and a threat to public health in that it allegedly encourages others to practice behaviors likely to spread HIV. Is it all that far-fetched that the provisions of Gostin's Model State Emergency Health Powers Act might someday be used to silence AIDS dissenters, opponents of vaccination, or anyone else with a view of health opposed to the medical orthodoxy as a threat to the public health by quarantining or isolating them?
Mark Gabrish Conlan H.E.A.L.-San Diego
BIOTERRORISM
A Health System Primed to Fail
HEALTH: Choice trumps common good
by M. GREGG BLOCHE and LAWRENCE O. GOSTIN
Los Angeles Times, November 4, 2001
WASHINGTON When the anthrax scare began a few weeks ago, the U.S. public health system was as ill-prepared for bioterror as our armed forces were for war when the Japanese struck Pearl Harbor. Within weeks of the attacks on the World Trade Center and the Pentagon, our airmen and Special Forces delivered a blow to the leadership of Osama bin Laden's terror network and Taliban supporters. But here at home, the faltering responses and conflicting messages of health authorities have fanned fears and may cost lives.
Why? With hindsight, it s easy to spot mistakes. Why, for example, did health officials not realize that powder as fine as chalk dust might leak from an envelope? Why were postal workers not tested and treated as quickly as congressional staffers? Why were statements about the size and hazards of the spores so inconsistent and confusing?
These criticisms, though, obscure the larger story of institutions programmed to fail. For at least a half century, our national commitment to an effective public health system has been on the wane. In differing but parallel ways, political liberals and conservatives have become skeptical, even hostile, toward government s role in the health sphere.
Liberals have come to see personal choice as paramount in medical matters and government constraints on individuals' health-related behavior as intrusive. In the 1960's and 1970's, activists and scholars targeted doctors paternalism towards patients and remade the law of health-care provision to protect patient autonomy. Public tracking of community-wide disease troubled civil libertarians, who feared invasions of personal privacy and stigmatization of disadvantaged groups.
Conservatives, meanwhile, have opposed most public financing and provision of medical services. They have cast health care as a matter of consumer choice and pushed public policy toward deference to the medical marketplace. Conservatives have taken a similar view of disease prevention, treating it as a personal matter, not a public responsibility.
The unsurprising result has been an absence of political support for strong public health programs and institutions. Instead, we have the public health system we ve always wanted ill-funded, fragmented, highly respectful of personal choice and unprepared for a nationally coordinated response to crisis.
It wasn't always this way. Public-health authorities in the 18th, 19th and early 20th centuries acted decisively, on a grand scale, against population-wide health threats, including frightening epidemics. Before the Civil War, health officers helped to plan towns and cities with an eye towards controlling infectious disease by securing clean water and food. Public-health authorities drained swamps to contain mosquito-borne illnesses, and they organized the safe disposal of animal and human waste.
Americans saw these activities as vital to their security, no less so than military force or police and fire protection. Taxpayers supported the needed spending. Lawmakers empowered local health authorities to move robustly when contagion threatened. Destruction of buildings, killing of infected animals and even restraints on the movement of infected people were provided for by law and widely accepted by citizens.
Because the hazards of contagion crossed class and racial lines, public health measures that aided the worst-off won support from the well-off. Mosquito-infested swamps, sick farm animals and airborne infections threatened everyone, though the poor often lived in areas of highest risk.
The Industrial Revolution of the late 19th and early 20th centuries brought new health dangers from the building of factories in densely populated areas and the crowding of poor people into slums. Filth and squalor spread disease, and government responded. Physicians and sanitary engineers made regulatory decisions concerning location of factories, control of poisonous substances and other city planning matters. In proportion to other public expenditures, public health budgets were much larger than they are today.
The U.S. commitment to public health and its regulatory powers as vital to the pursuit of the common good persisted through two world wars. Campaigning for the presidency in 1932, Gov. Franklin D. Roosevelt reaffirmed this commitment, proclaiming, Nothing can be more important to a state than its public health; the state's paramount concern should be the health of its people.
But after World War II, American public health fell victim to its own successes. Thanks to city-planning and sanitation campaigns of the early 20th century and the antibiotic revolution of the 1940 s, fear of infectious disease waned. The conquest of polio through vaccination in the 1950's delivered the coup de gráce for public health's middle-class constituency.
Although secually transmitted diseases, tuberculosis and other infectious illnesses by no means disappeared and continued to disproportionately afflict the nation's poor, many in the middle and upper classes believed mankind's age-old struggle against contagion had ended in triumph. In 1969, the U.S. surgeon general told Congress as much, concluding that the nation could close the books on infectious diseases.
No longer frightened by contagion, middle-class Americans increasingly saw health as a private matter, looking to high-tech medicine for the next great advances. Federal spending on medical research surged as state and local public-health spending ebbed.
As the perceived need for robust public-health measures diminished, concern about violation of personal autonomy in the health sphere soared. Revelations of Nazi medical atrocities and reports that American clinical researchers exposed unknowing people to radiation and other life-endangering hazards inspired a large shift in medical ethics, toward patient autonomy as the central principle. The civil rights revolution of the 1960's and 1970's quickened this transformation.
Then came the AIDS epidemic in the 1980's and 1990's. AIDS activists battled successfully for public-policy responses that intruded minimally on personal autonomy and privacy. The AIDS paradigm for coping with a public health crisis treated government as more of a threat than a solution. This civil-libertarian response to AIDS was of a piece with the individualism and the cult of the entrepreneur that have flourished in American culture for the past 20 years.
So what remains in the public health sphere is a profoundly flawed system, chronically starved of funds, without political support and founded on antiquated laws. These laws actually thwart decisive public-health action. They prohibit data-sharing between public health, law enforcement and emergency management agencies, and they do not provide adequate powers for controlling property and persons in the event of bioterrorism.
In an era of intercontinental travel, the U.S. is vulnerable to epidemics of potentially massive proportion. Think about the resurgence of multidrug-resistant tuberculosis, AIDS and the West Nile Virus. Or think about the prospect of natural or intentional spread of smallpox or Ebola, both highly contagious and untreatable. These naturally occurring and terrorist-created threats could produce mass civilian casualties, straining the public health system far beyond the current anthrax threat.
There is an urgent need for new federal and state laws to mobilize the needed resources and to permit, indeed require, information-sharing and other cooperation among public health, law enforcement and emergency-management agencies. Our medical technology powerful antibiotics, vaccines and the science base necessary to develop myriad new biological security measures is sufficient to cope with the threats we face. The challenge ahead is a matter of organization and resources and willingness to see the virtues of personal autonomy against the larger backdrop of the common good.