Prescription for tyranny: Under the guise of dealing with health emergencies, proposed legislation would grant states totalitarian powers while actually hurting state sovereignty. (Health Care).

A dangerous new epidemic is incubating in Washington and in state legislatures nationwide, courtesy of the war on terrorism. No, it isn't anthrax or smallpox or bubonic plague or some other deadly germ brewed by bioterrorists. It's a new push, instigated by the Centers for Disease Control (CDC), to toughen state emergency health powers" laws to enable governors, in conjunction with federal authorities, to exercise police-state powers in the event of another episode of bioterrorism, or even a natural epidemic.

Against the backdrop of September 11th's eye-searing drama, the subsequent anthrax attacks on Capitol Hill and the major news media seemed inconspicuous, considering their low infection rate and even lower death toll. Yet with federal authorities now pushing aggressively for new state-level enforcement powers -- including draconian powers to round up, quarantine, and forcibly test and vaccinate citizens in the event of an outbreak of smallpox or some other dangerous disease -- the anthrax episode may yet profoundly affect the American political landscape.

From Disease Control to People Control

On October 30, 2001, the CDC released the Model State Emergency Health Powers Act (MEHPA) and disseminated copies of the act to legislators in all 50 states. At the time, Secretary of Health and Human Services Tommy Thompson praised the model legislation as "an important tool for state and local officials to respond to bioterrorism and other public health emergencies." But the MERPA soon attracted attention from critics, and for good reason: Prepared by the Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities, the model legislation was an undisguised recipe for state-level tyranny.

The original draft of the MEHPA authorizes governors to declare states of emergency, which legislatures may not challenge for 60 days. During such a period, according to the terms of Article IV (subtitled "Control of Property"), the state may confiscate any private property, "includ[ing] but not limited to, communication devices, carriers, real estate, fuels, food, clothing, and health care facilities." Additionally, the state is given blanket authority to ration, control, or prohibit the sale or use of "food, fuel, clothing and other commodities, alcoholic beverages, firearms, explosives, and combustibles."

Nor is that the worst of it. Article V, subtitled "Control of Persons," would grant state governments the emergency power "to compel a person to submit to a physical examination and or testing," to "require any physician or other health care provider to perform the medical examination," and to forcibly quarantine any individuals deemed potential disease carriers or refusing to submit to tests. The proposed legislation makes a feeble concession to "due process," requiring a court order to quarantine any individual, but then nullifies the provision by permitting health authorities to quarantine without a court order any time that "delay in the isolation or quarantine of the person would pose an immediate threat to the public health."

After the model law drew negative attention, the CDC came out with a revised version in late December, a kinder, gentler program that delicately struck out overt references to firearms confiscation and changed "control of persons" to "protection of persons" -- while keeping intact vague language from which unlimited police powers can still be inferred.

Alarmingly, the MEHPA is already popping up in state legislatures across the country, generally reproduced verbatim from the CDC original, except for cosmetic references to state law and facilities. For example, the legislatures of Pennsylvania, New York, and Illinois are all considering "Emergency Health Powers" acts, faithful reproductions of the October 30th original, complete with references to firearms controls and "control" of persons. Many other states, including Tennessee, Nebraska, Delaware, and California, have introduced "Emergency Health Powers" acts identical to the December draft of the MEHPA, or are designing their own legislation to conform to MEHPA standards.

Another document published by the CDC, "Isolation and Quarantine Guidelines," makes the beltway perspective on bioterrorism and epidemics crystal clear: The domestic threat of a serious epidemic, unleashed either by bioterrorists or by natural causes, is ample justification for federal oversight and interference with state autonomy, not to mention the occasional exercise of police-state powers under the guise of "states of emergency." Focusing on the alarum du jour -- the alleged danger of a new terrorist-concocted smallpox epidemic -- the CDC document declares that "each state must undertake a review of their own authorities and revise and update their laws to assure sufficient legal powers to carry out an effective response." The document enthusiastically recommends the MEHPA, which "would give state officials broad powers to close buildings, take over hospitals and order quarantines during a biological attack." As for limits on federal power to intervene, "while the Constitution reserves the police power t o the States, the Federal government has extensive authority over public health by virtue of the Commerce Clause of the U.S. Constitution, which grants the Federal government the exclusive power to regulate interstate and foreign commerce." This is arrant nonsense; only a federal agency could define a spreading, life-threatening epidemic as a form of "commerce"!

In yielding to federal demands to conform with national guidelines and standards, the real danger behind the MEHPA drive is precisely that the states are ceding power and precedent for further federal encroachment to hysteria-mongers in Washington, who view state autonomy with narrow suspicion and seize upon any national emergency, real or feigned, to attack state sovereignty.

States and local governments have occasionally exercised extraordinary powers of seizure, medication, and quarantine, with varying degrees of effectiveness. The state of Minnesota, for example, quarantined lumbermen ill with smallpox and prevented them from leaving their camps during various smallpox epidemics in the late 19th and early 20th centuries. By and large, though, quarantines and mass vaccinations were carried out locally and on a voluntary basis, and often were very successful. In 1947, responding to a smallpox outbreak in New York City, more than six million people voluntarily received vaccinations within a few weeks at stations set up all around the city. While city officials requested help from the military and the U.S. Public Health Service, there were no forced quarantines or mandatory examinations and treatment. Instead, thanks to a massive public information campaign, coupled with the natural desire of sensible people to protect life and limb against a deadly disease, a potential epidemic wa s contained to nine cases in New York and seven deaths.

In stark contrast, consider the response in Tito's Communist Yugoslavia to a smallpox outbreak in 1972. After a Muslim pilgrim came home from Mecca with smallpox, the disease spread rapidly, infecting patients and staff at the local hospital where he first sought medical attention, then dozens more at a second hospital in Belgrade where he was transferred. The disease ultimately spread to almost 200 others, whereupon Tito -- after much of the damage had already been done, it is important to note -- declared martial law, prohibited unauthorized travel, seized hotels and apartment houses, and cordoned off entire city blocks with barbed wire and police guards. Millions of Yugoslavs were forcibly vaccinated, and after two months the epidemic was finally brought under control. That our own leaders are now promoting emergency health powers that mirror those practiced in Communist Yugoslavia should give pause for thought.

The Black Death

But what of the modem risk of bioterrorism and germ warfare, and the possible reappearance of a disease like smallpox, against which most modern-day Americans have not been adequately vaccinated? Surely the risk of an artificial epidemic launched by some shadowy terrorist cell or hostile regime is novel and severe enough to justify extraordinary new federal powers!

In the first place, not only is germ warfare not new, it has become less of a threat with advances in medical technology. Consider that the worst catastrophe in Western history in the last thousand years, in terms of human mortality -- the bubonic plague pandemic in Europe, also known as the "Black Death" -- probably resulted from germ warfare. The plague was brought to Italy in 1847 in the ships of Genovese merchants fleeing from the Black Sea trading port of Kaffa, where besieging Tartar armies, unable to breach the formidable defenses of that city, had catapulted the plague-ridden corpses of certain of their comrades over the walls. The panicked Genovese fled in their boats, and by the time their ships reached port, all aboard were dead or dying. The plague jumped ship and raced across Europe, killing an estimated 25 million people, or up to one-third of the entire population. So great was the trauma of this disaster that kingdoms fell, societies and mores disintegrated, and entire districts were left des olate of human inhabitants. In terms of human toll, the world has never seen another act of warfare even remotely comparable to the Black Death.

Over the ensuing centuries, the tactic of casting germ-ridden corpses and offal over city walls to end sieges was used quite effectively, because of the crowded, unsanitary conditions in medieval cities and the lack of knowledge about the cause of diseases and the way they spread. In more modern times, the British used germ warfare in the French and Indian war, with devastating results: Suspecting that certain Indian tribes were secretly in cahoots with the French, they gifted to the Indians blankets contaminated with smallpox, leading to epidemics that killed hundreds of Indians and virtually wiped out entire tribes.

Back to the Present

However, germ warfare has been far less effective in recent years because of advances in medical technology and epidemiology. The causes of bubonic plague and how it spreads are now clearly understood. Diagnosed in time, it is a now a treatable if still dangerous disease, and the unsanitary conditions that once allowed it to wreak havoc -- human contact with rats and the fleas they carry -- have been largely eradicated from the modern world. Smallpox has been almost completely eradicated as well, except for a few cultures kept under tight security in government laboratories. And even if bioterrorists or a hostile government contrived to unleash smallpox, the disease is generally not contagious until the telltale pustules appear and the victim is generally hospitalized, a factor that severely limits its potential to create a large-scale epidemic. Tropical haemorrhagic fevers like the dreaded Ebola virus are unlikely to survive outside of the equatorial tropics. And, as everyone now realizes, anthrax is not ord inarily a contagious disease. It may be spread in other ways, like the postal service or airborne aerosols, but an outbreak of anthrax hardly merits mass quarantining and police-state powers.

The worst epidemic the United States has ever experienced was the great Spanish Flu epidemic of 1918, and it is unlikely that any bioterrorists would be able to engineer a "superflu" in any event. Besides, using a pathogen as contagious as influenza for any kind of germ warfare would be counterproductive, since it could not be contained by any means and would likely sweep the globe, attacking the target nation and aggressor alike.

Last fall's anthrax outbreaks demonstrated the reality of bioterrorism and its limitations. The history of germ warfare suggests that its combat potential is very limited against a modern society living in sanitary conditions and equipped with the best modern medicine. And the comparative histories of the authoritarian (Yugoslavia) and voluntary (New York City) approaches to epidemic diseases like smallpox show that police-state tactics confer no advantage and probably exacerbate the problem. Finally, the U.S. Constitution, including the oft-abused "commerce clause," confers no federal authority to seize "emergency health powers even Philadephia's horrendous yellow fever epidemic of 1793, which claimed nearly 10 percent of the city's population, was not regarded by the Founders as an excuse for a national "state of emergency" -- despite the fact that Philadelphia was the nation's capital at the time, and the political leadership, including George Washington and Thomas Jefferson, fled the city.

The ongoing danger of biowarfare, both from terrorists and from hostile regimes, should not be ignored or discounted. But the proper solution is to trust the local, voluntary response, and not to use the threat of bioterrorism as an excuse to further erode American civil liberties or to unconstitutionally empower the federal government at the expense of state and local authority.