When chemicals used in coal mining were spilled into the Elk River in West Virginia in January, the governor declared a state of emergency the same day. When the H1N1 influenza virus was discovered in 2009, President Obama declared a national public-health emergency. In both cases, people were willing to comply with government orders (don't drink the water, speed up vaccine production) in order to get an impending health threat under control.
But what happens when the health threat isn’t imminent? Or if it has no clear end-point? In a perspective piece in the most recent issue of the New England Journal of Medicine, Stanford public-health law scholar Michelle Mello, PhD, JD, and her co-authors delve into just such questions. They describe Massachusetts Governor Deval Patrick’s unusual step in March to declare a public-health emergency in order to control the state’s recent opioid-addiction epidemic – 40 people had died from heroin overdoses in four months. The move allowed public-health authorities to take several steps to address the problem, including monitoring prescription use and release funds for addiction treatment. Few states have taken such drastic steps to control drug use problems, though, and it raises questions about what exactly constitutes a public health emergency. In the piece, the authors write:
Patrick’s unusual invocation of emergency public health powers, which are traditionally reserved for infectious disease outbreaks, natural disasters, or acts of terrorism, offers an opportunity to consider some important questions. Should widespread injuries, such as those caused by opiates or motor vehicle crashes, be viewed as public health emergencies? Should chronic health conditions such as hypertension or obesity be similarly categorized? When should normal lawmaking processes, and the typical rights afforded to individuals and entities, be suspended to protect public health?
Although there may be benefits – drawing public attention to an important problem, access to critical funding sources, even mustering military personnel (for example, the National Guard was deployed to deal with the Elk River chemical spill) – there are drawbacks as well. Emergency powers give the government unprecedented leeway, as the authors note, they “sit largely outside the ordinary structures of checks and balances.” The authors go on to describe some of the pitfalls of declaring public-health emergencies:
Most important, concerns about due process are amplified when emergency orders restrict individual freedoms and property rights. The notion that highly coercive measures such as mandatory blood tests, quarantines, or property seizures could be imposed for common threats without democratic procedures and full due process offends our constitutional values. The lack of clear triggering thresholds for terminating emergency powers is particularly troubling, creating the possibility that critical legal protections might be suspended indefinitely.
Government officials rarely invoke public health emergencies, partly due to their out-sized power. The authors note, though that Patrick’s invocation “sets a troubling precedent” for a power that should be used with caution.
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